CASES
events.12
ADMIN LAW
ATTY. EVILLO C. PORMENTO, Petitioner,
vs.
JOSEPH "ERAP" EJERCITO ESTRADA and COMMISSION ON
ELECTIONS, Respondents.
RESOLUTION
CORONA, C.J.:
What is the proper interpretation of the following provision of Section 4,
Article VII of the Constitution: "[t]he President shall not be eligible for any
reelection?"
The novelty and complexity of the constitutional issue involved in this
case present a temptation that magistrates, lawyers, legal scholars and
law students alike would find hard to resist. However, prudence dictates
that this Court exercise judicial restraint where the issue before it has
already been mooted by subsequent events. More importantly, the
constitutional requirement of the existence of a "case" or an "actual
controversy" for the proper exercise of the power of judicial review
constrains us to refuse the allure of making a grand pronouncement that,
in the end, will amount to nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is
covered by the ban on the President from "any reelection." Private
respondent was elected President of the Republic of the Philippines in
the general elections held on May 11, 1998. He sought the presidency
again in the general elections held on May 10, 2010. Petitioner Atty.
Evillo C. Pormento opposed private respondent’s candidacy and filed a
petition for disqualification. However, his petition was denied by the
Second Division of public respondent Commission on Elections
(COMELEC).1 His motion for reconsideration was subsequently denied
by the COMELEC en banc.2
Petitioner filed the instant petition for certiorari3 on May 7, 2010.
However, under the Rules of Court, the filing of such petition would not
stay the execution of the judgment, final order or resolution of the
COMELEC that is sought to be reviewed.4 Besides, petitioner did not
even pray for the issuance of a temporary restraining order or writ of
preliminary injunction. Hence, private respondent was able to participate
as a candidate for the position of President in the May 10, 2010 elections
where he garnered the second highest number of votes. 51avvphi1
Private respondent was not elected President the second time he ran.
Since the issue on the proper interpretation of the phrase "any
reelection" will be premised on a person’s second (whether immediate
or not) election as President, there is no case or controversy to be
resolved in this case. No live conflict of legal rights exists. 6 There is in
this case no definite, concrete, real or substantial controversy that
touches on the legal relations of parties having adverse legal
interests.7 No specific relief may conclusively be decreed upon by this
Court in this case that will benefit any of the parties herein. 8 As such,
one of the essential requisites for the exercise of the power of judicial
review, the existence of an actual case or controversy, is sorely lacking
in this case.
As a rule, this Court may only adjudicate actual, ongoing
controversies.9 The Court is not empowered to decide moot questions
or abstract propositions, or to declare principles or rules of law which
cannot affect the result as to the thing in issue in the case before it.10 In
other words, when a case is moot, it becomes non-justiciable.11
An action is considered "moot" when it no longer presents a justiciable
controversy because the issues involved have become academic or
dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely
to be raised again between the parties. There is nothing for the court to
resolve as the determination thereof has been overtaken by subsequent
Assuming an actual case or controversy existed prior to the
proclamation of a President who has been duly elected in the May 10,
2010 elections, the same is no longer true today. Following the results
of that elections, private respondent was not elected President for the
second time. Thus, any discussion of his "reelection" will simply be
hypothetical and speculative. It will serve no useful or practical purpose.
Accordingly, the petition is denied due course and is hereby
DISMISSED.
SO ORDERED.
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO,
JR., petitioners,
vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE
(a.k.a. FERNANDO POE, JR.) and VICTORINO X.
FORNIER, respondents.
x-----------------------------x
G.R. No. 161634 March 3, 2004
ZOILO ANTONIO VELEZ, petitioner,
vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE,
JR., respondent.
x-----------------------------x
G. R. No. 161824 March 3, 2004
VICTORINO X. FORNIER, petitioner,
vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN
KELLEY POE, ALSO KNOWN AS FERNANDO POE
JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state
believes are deserving of the privilege. It is a "precious heritage, as
well as an inestimable acquisition,"1 that cannot be taken lightly by
anyone - either by those who enjoy it or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single
question of profound importance to the nation. The issue of citizenship
is brought up to challenge the qualifications of a presidential candidate
to hold the highest office of the land. Our people are waiting for the
judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero
of silver screen, and now one of the main contenders for the presidency,
a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and
American colonial roots and reminds us of the rich heritage of civil law
and common law traditions, the fusion resulting in a hybrid of laws and
jurisprudence that could be no less than distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known
as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy
for the position of President of the Republic of the Philippines under the
Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing
1
himself to be a natural-born citizen of the Philippines, stated his name to
be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20
August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X.
Fornier, Petitioner, versus Hon. Commission on Elections and Ronald
Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents,"
initiated, on 09 January 2004, a petition docketed SPA No. 04-003
before the Commission on Elections ("COMELEC") to disqualify FPJ
and to deny due course or to cancel his certificate of candidacy upon the
thesis that FPJ made a material misrepresentation in his certificate of
candidacy by claiming to be a natural-born Filipino citizen when in truth,
according to Fornier, his parents were foreigners; his mother, Bessie
Kelley Poe, was an American, and his father, Allan Poe, was a Spanish
national, being the son of Lorenzo Pou, a Spanish subject. Granting,
petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could
not have transmitted his Filipino citizenship to FPJ, the latter being an
illegitimate child of an alien mother. Petitioner based the allegation of
the illegitimate birth of respondent on two assertions - first, Allan F. Poe
contracted a prior marriage to a certain Paulita Gomez before his
marriage to Bessie Kelley and, second, even if no such prior marriage
had existed, Allan F. Poe, married Bessie Kelly only a year after the birth
of respondent.
In the hearing before the Third Division of the COMELEC on 19 January
2004, petitioner, in support of his claim, presented several documentary
exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified
photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez
attesting to her having filed a case for bigamy and concubinage against
the father of respondent, Allan F. Poe, after discovering his bigamous
relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F.
Poe, 5) a certification issued by the Director of the Records Management
and Archives Office, attesting to the fact that there was no record in the
National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered
the Philippines before 1907, and 6) a certification from the Officer-In-
Charge of the Archives Division of the National Archives to the effect
that no available information could be found in the files of the National
Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of
evidence, the more significant ones being - a) a certification issued by
Estrella M. Domingo of the Archives Division of the National Archives
that there appeared to be no available information regarding the birth of
Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a
certification issued by the Officer-In-Charge of the Archives Division of
the National Archives that no available information about the marriage
of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth
of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the
Registry of Deeds for the Province of Pangasinan, in the name of
Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No.
23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the
certificate of death of Lorenzo Pou, g) a copy of the purported marriage
contract between Fernando Pou and Bessie Kelley, and h) a certification
issued by the City Civil Registrar of San Carlos City, Pangasinan, stating
that the records of birth in the said office during the period of from 1900
until May 1946 were totally destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack
of merit. Three days later, or on 26 January 2004, Fornier filed his motion
for reconsideration. The motion was denied on 06 February 2004 by the
COMELEC en banc. On 10 February 2004, petitioner assailed the
decision of the COMELEC before this Court conformably with Rule 64,
in relation to Rule 65, of the Revised Rules of Civil Procedure. The
petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution
that would stay the finality and/or execution of the COMELEC
resolutions.
The other petitions, later consolidated with G. R. No. 161824, would
include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix
B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley
Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald
Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the
jurisdiction of the COMELEC and asserting that, under Article VII,
Section 4, paragraph 7, of the 1987 Constitution, only the Supreme
Court had original and exclusive jurisdiction to resolve the basic issue
on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the
COMELEC deny due course to or cancel FPJ’s certificate of candidacy
for alleged misrepresentation of a material fact (i.e., that FPJ was a
natural-born citizen) before the COMELEC, petitioner Fornier invoked
Section 78 of the Omnibus Election Code –
"Section 78. Petition to deny due course to or cancel a
certificate of candidacy. --- A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material
representation contained therein as required under Section 74
hereof is false" –
in consonance with the general powers of COMELEC expressed in
Section 52 of the Omnibus Election Code -
"Section 52. Powers and functions of the Commission on
Elections. In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections" -
and in relation to Article 69 of the Omnibus Election Code
which would authorize "any interested party" to file a verified
petition to deny or cancel the certificate of candidacy of any
nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed
by the Supreme Court per Rule 642 in an action for certiorari under Rule
653 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the
1987 Constitution also reads –
"Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution.
A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum, required by the rules of the Commission or by
the Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt
of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides
that judicial power is vested in one Supreme Court and in such lower
courts as may be established by law which power "includes the duty of
the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government."
It is sufficiently clear that the petition brought up in G. R. No. 161824
was aptly elevated to, and could well be taken cognizance of by, this
Court. A contrary view could be a gross denial to our people of their
fundamental right to be fully informed, and to make a proper choice, on
who could or should be elected to occupy the highest government post
in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No.
161634, invoke the provisions of Article VII, Section 4, paragraph 7, of
the 1987 Constitution in assailing the jurisdiction of the COMELEC when
2
it took cognizance of SPA No. 04-003 and in urging the Supreme Court
to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may
promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in
the 1935 and the 1973 Constitution to designate any tribunal to be the
sole judge of presidential and vice-presidential contests, has
constrained this Court to declare, in Lopez vs. Roxas, 4 as "not (being)
justiciable" controversies or disputes involving contests on the elections,
returns and qualifications of the President or Vice-President. The
constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential
Electoral Tribunal to Try, Hear and Decide Protests Contesting the
Election of the President-Elect and the Vice-President-Elect of the
Philippines and Providing for the Manner of Hearing the Same."
Republic Act 1793 designated the Chief Justice and the Associate
Justices of the Supreme Court to be the members of the tribunal.
Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected
Republic Act No. 1793, the statutory set-up, nonetheless, would now be
deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Ordinary usage would characterize a "contest" in reference to a post-
election scenario. Election contests consist of either an election protest
or a quo warranto which, although two distinct remedies, would have
one objective in view, i.e., to dislodge the winning candidate from office.
A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the
"Rules of the Presidential Electoral Tribunal," promulgated by the
Supreme Court en banc on 18 April 1992, would support this premise -
"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge
of all contests relating to the election, returns, and
qualifications of the President or Vice-President of the
Philippines.
"Rule 13. How Initiated. - An election contest is initiated by the
filing of an election protest or a petition for quo warranto
against the President or Vice-President. An election protest
shall not include a petition for quo warranto. A petition for quo
warranto shall not include an election protest.
"Rule 14. Election Protest. - Only the registered candidate for
President or for Vice-President of the Philippines who
received the second or third highest number of votes may
contest the election of the President or the Vice-President, as
the case may be, by filing a verified petition with the Clerk of
the Presidential Electoral Tribunal within thirty (30) days after
the proclamation of the winner."
The rules categorically speak of the jurisdiction of the tribunal over
contests relating to the election, returns and qualifications of the
"President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding
is generally defined as being an action against a person who usurps,
intrudes into, or unlawfully holds or exercises a public office. 5 In such
context, the election contest can only contemplate a post-election
scenario. In Rule 14, only a registered candidate who would have
received either the second or third highest number of votes could file an
election protest. This rule again presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined
by Section 4, paragraph 7, of the 1987 Constitution, would not include
cases directly brought before it, questioning the qualifications of a
candidate for the presidency or vice-presidency before the elections are
held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et
al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled
"Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe,
Jr." would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical
background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by
Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to
refer to a man who shared in the administration of justice and in the
holding of an office.6Aristotle saw its significance if only to determine the
constituency of the "State," which he described as being composed of
such persons who would be adequate in number to achieve a self-
sufficient existence.7 The concept grew to include one who would both
govern and be governed, for which qualifications like autonomy,
judgment and loyalty could be expected. Citizenship was seen to deal
with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.8 In its ideal setting, a citizen was active in
public life and fundamentally willing to submit his private interests to the
general interest of society.
The concept of citizenship had undergone changes over the centuries.
In the 18th century, the concept was limited, by and large, to civil
citizenship, which established the rights necessary for individual
freedom, such as rights to property, personal liberty and justice. 9 Its
meaning expanded during the 19th century to include political
citizenship, which encompassed the right to participate in the exercise
of political power.10 The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of
the citizen to economic well-being and social security.11 The idea of
citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of
development, in keeping with the rapidly shrinking global village, might
well be the internationalization of citizenship.12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the Spanish
regime but "subjects of Spain" or "Spanish subjects." 13 In church
records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became
highly codified during the 19th century but their sheer number made it
difficult to point to one comprehensive law. Not all of these citizenship
laws of Spain however, were made to apply to the Philippine Islands
except for those explicitly extended by Royal Decrees. 14
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether
the law was extended to the Philippines remained to be the subject of
differing views among experts;15 however, three royal decrees were
undisputably made applicable to Spaniards in the Philippines - the Order
de la Regencia of 14 August 1841,16 the Royal Decree of 23 August
1868 specifically defining the political status of children born in the
Philippine Islands,17 and finally, the Ley Extranjera de Ultramar of 04
July 1870, which was expressly made applicable to the Philippines by
the Royal Decree of 13 July 1870.18
The Spanish Constitution of 1876 was never extended to the Philippine
Islands because of the express mandate of its Article 89, according to
which the provisions of the Ultramar among which this country was
included, would be governed by special laws.19
It was only the Civil Code of Spain, made effective in this jurisdiction on
18 December 1889, which came out with the first categorical
enumeration of who were Spanish citizens. -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were
born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
3
 "(d) Those who, without such papers, may have become
domiciled inhabitants of any town of the Monarchy."20
The year 1898 was another turning point in Philippine history. Already in
the state of decline as a superpower, Spain was forced to so cede her
sole colony in the East to an upcoming world power, the United States.
An accepted principle of international law dictated that a change in
sovereignty, while resulting in an abrogation of all political laws then in
force, would have no effect on civil laws, which would remain virtually
intact.
The Treaty of Paris was entered into on 10 December 1898 between
Spain and the United States.21 Under Article IX of the treaty, the civil
rights and political status of the native inhabitants of the territories ceded
to the United States would be determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the
territory over which Spain by the present treaty relinquishes or
cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such property
or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject
in respect thereof to such laws as are applicable to foreigners.
In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of
record, within a year from the date of the exchange of
ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they
shall be held to have renounced it and to have adopted the
nationality of the territory in which they reside.
Thus –
"The civil rights and political status of the native inhabitants of
the territories hereby ceded to the United States shall be
determined by the Congress."22
Upon the ratification of the treaty, and pending legislation by the United
States Congress on the subject, the native inhabitants of the Philippines
ceased to be Spanish subjects. Although they did not become American
citizens, they, however, also ceased to be "aliens" under American laws
and were thus issued passports describing them to be citizens of the
Philippines entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in
the Philippine Bill of 1902, also commonly referred to as the Philippine
Organic Act of 1902, the first comprehensive legislation of the Congress
of the United States on the Philippines -
".... that all inhabitants of the Philippine Islands continuing to
reside therein, who were Spanish subjects on the 11th day of
April, 1891, and then resided in said Islands, and their children
born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the
protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between
the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who was an
inhabitant of the Philippines, and a Spanish subject on the 11th day of
April 1899. The term "inhabitant" was taken to include 1) a native-born
inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and
3) an inhabitant who obtained Spanish papers on or before 11 April
1899.24
Controversy arose on to the status of children born in the Philippines
from 11 April 1899 to 01 July 1902, during which period no citizenship
law was extant in the Philippines. Weight was given to the view,
articulated in jurisprudential writing at the time, that the common law
principle of jus soli, otherwise also known as the principle of territoriality,
operative in the United States and England, governed those born in the
Philippine Archipelago within that period.25 More about this later.
In 23 March 1912, the Congress of the United States made the following
amendment to the Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby
authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do
not come within the foregoing provisions, the natives of other
insular possession of the United States, and such other
persons residing in the Philippine Islands who would become
citizens of the United States, under the laws of the United
States, if residing therein."26
With the adoption of the Philippine Bill of 1902, the concept of "Philippine
citizens" had for the first time crystallized. The word "Filipino" was used
by William H. Taft, the first Civil Governor General in the Philippines
when he initially made mention of it in his slogan, "The Philippines for
the Filipinos." In 1916, the Philippine Autonomy Act, also known as the
Jones Law restated virtually the provisions of the Philippine Bill of 1902,
as so amended by the Act of Congress in 1912 -
"That all inhabitants of the Philippine Islands who were
Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in said Islands, and
their children born subsequently thereto, shall be deemed and
held to be citizens of the Philippine Islands, except such as
shall have elected to preserve their allegiance to the Crown of
Spain in accordance with the provisions of the treaty of peace
between the United States and Spain, signed at Paris
December tenth, eighteen hundred and ninety-eight and
except such others as have since become citizens of some
other country; Provided, That the Philippine Legislature,
herein provided for, is hereby authorized to provide for the
acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing
provisions, the natives of the insular possessions of the United
States, and such other persons residing in the Philippine
Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the
United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was
deemed to be a citizen of the Philippines as of 11 April 1899 if he was
1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on
said date, and, 3) since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus
soli was a mode of acquiring citizenship, the 1935 Constitution brought
to an end to any such link with common law, by adopting, once and for
all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship -
"Section 1, Article III, 1935 Constitution. The following are
citizens of the Philippines -
"(1) Those who are citizens of the Philippine Islands at the
time of the adoption of this Constitution
"(2) Those born in the Philippines Islands of foreign parents
who, before the adoption of this Constitution, had been
elected to public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and
upon reaching the age of majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with
existing civil law provisions at the time, which provided that women
would automatically lose their Filipino citizenship and acquire that of
their foreign husbands, resulted in discriminatory situations that
effectively incapacitated the women from transmitting their Filipino
citizenship to their legitimate children and required illegitimate children
of Filipino mothers to still elect Filipino citizenship upon reaching the age
4
of majority. Seeking to correct this anomaly, as well as fully cognizant of
the newly found status of Filipino women as equals to men, the framers
of the 1973 Constitution crafted the provisions of the new Constitution
on citizenship to reflect such concerns -
"Section 1, Article III, 1973 Constitution - The following are
citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of
the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the
Philippines.
"(3) Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and thirty-
five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further provided
that –
"A female citizen of the Philippines who marries an alien
retains her Philippine citizenship, unless by her act or
omission she is deemed, under the law to have renounced her
citizenship."
The 1987 Constitution generally adopted the provisions of the 1973
Constitution, except for subsection (3) thereof that aimed to correct the
irregular situation generated by the questionable proviso in the 1935
Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of
the Philippines.
"(3) Those born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
"(4) Those who are naturalized in accordance with
law."
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-
born citizen of the Philippines, a registered voter, able to read
and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years
immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are
citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship."27
The date, month and year of birth of FPJ appeared to be 20 August 1939
during the regime of the 1935 Constitution. Through its history, four
modes of acquiring citizenship - naturalization, jus soli, res judicata and
jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus
sanguinis, could qualify a person to being a "natural-born" citizen of the
Philippines. Jus soli, per Roa vs. Collector of Customs29 (1912), did not
last long. With the adoption of the 1935 Constitution and the reversal of
Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood
relationship would now become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that
the earliest established direct ascendant of FPJ was his paternal
grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F.
Poe. While the record of birth of Lorenzo Pou had not been presented
in evidence, his death certificate, however, identified him to be a Filipino,
a resident of San Carlos, Pangasinan, and 84 years old at the time of
his death on 11 September 1954. The certificate of birth of the father of
FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an
Español father, Lorenzo Pou, and a mestiza Español mother, Marta
Reyes. Introduced by petitioner was an "uncertified" copy of a supposed
certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on
05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16 September 1940. In the
same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two
years old, unmarried, and an American citizen. The birth certificate of
FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe,
a Filipino, twenty-four years old, married to Bessie Kelly, an American
citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of
some of the entries on the birth certificate of respondent and the
marriage certificate of his parents, the only conclusions that could be
drawn with some degree of certainty from the documents would be that
-
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other
on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo
Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact
that FPJ is a natural-born Filipino citizen? The marriage certificate of
Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death
certificate of Lorenzo Pou are documents of public record in the custody
of a public officer. The documents have been submitted in evidence by
both contending parties during the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and
Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to
Bessie Kelley was submitted as Exhibit "21" for respondent. The death
certificate of Lorenzo Pou was submitted by respondent as his Exhibit
"5." While the last two documents were submitted in evidence for
respondent, the admissibility thereof, particularly in reference to the facts
which they purported to show, i.e., the marriage certificate in relation to
the date of marriage of Allan F. Poe to Bessie Kelley and the death
certificate relative to the death of Lorenzo Pou on 11 September 1954 in
San Carlos, Pangasinan, were all admitted by petitioner, who had
utilized those material statements in his argument. All three documents
were certified true copies of the originals.
Section 3, Rule 130, Rules of Court states that -
"Original document must be produced; exceptions. - When the
subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself,
except in the following cases:
"x x x xxx xxx
"(d) When the original is a public record in the custody of a
public office or is recorded in a public office."
Being public documents, the death certificate of Lorenzo Pou, the
marriage certificate of Allan F. Poe and Bessie Kelly, and the birth
certificate of FPJ, constitute prima facie proof of their contents. Section
44, Rule 130, of the Rules of Court provides:
5
 "Entries in official records. Entries in official records made in
the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts
therein stated."
The trustworthiness of public documents and the value given to the
entries made therein could be grounded on 1) the sense of official duty
in the preparation of the statement made, 2) the penalty which is usually
affixed to a breach of that duty, 3) the routine and disinterested origin of
most such statements, and 4) the publicity of record which makes more
likely the prior exposure of such errors as might have occurred. 31
The death certificate of Lorenzo Pou would indicate that he died on 11
September 1954, at the age of 84 years, in San Carlos, Pangasinan. It
could thus be assumed that Lorenzo Pou was born sometime in the year
1870 when the Philippines was still a colony of Spain. Petitioner would
argue that Lorenzo Pou was not in the Philippines during the crucial
period of from 1898 to 1902 considering that there was no existing
record about such fact in the Records Management and Archives Office.
Petitioner, however, likewise failed to show that Lorenzo Pou was at any
other place during the same period. In his death certificate, the residence
of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the
absence of any evidence to the contrary, it should be sound to conclude,
or at least to presume, that the place of residence of a person at the time
of his death was also his residence before death. It would be extremely
doubtful if the Records Management and Archives Office would have
had complete records of all residents of the Philippines from 1898 to
1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship
or civil status of the child to the father [or mother]) or paternity
(relationship or civil status of the father to the child) of an illegitimate
child, FPJ evidently being an illegitimate son according to petitioner, the
mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from
08 December 1889 up until the day prior to 30 August 1950 when the
Civil Code of the Philippines took effect, acknowledgment was required
to establish filiation or paternity. Acknowledgment was either judicial
(compulsory) or voluntary. Judicial or compulsory acknowledgment was
possible only if done during the lifetime of the putative parent; voluntary
acknowledgment could only be had in a record of birth, a will, or a public
document.32 Complementary to the new code was Act No. 3753 or the
Civil Registry Law expressing in Section 5 thereof, that -
"In case of an illegitimate child, the birth certificate shall be
signed and sworn to jointly by the parents of the infant or only
by the mother if the father refuses. In the latter case, it shall
not be permissible to state or reveal in the document the name
of the father who refuses to acknowledge the child, or to give
therein any information by which such father could be
identified."
In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to
be signed or sworn to by the father. The failure of such requirement
rendered the same useless as being an authoritative document of
recognition.33 In Mendoza vs. Mella,34 the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was
enacted, the question here really is whether or not his birth
certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the names
of both parents, there is no showing that they signed the
original, let alone swore to its contents as required in Section
5 of Act No. 3753. For all that might have happened, it was
not even they or either of them who furnished the data to be
entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be
made, according to the same Article 131. True enough, but in
such a case, there must be a clear statement in the document
that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties,
nowhere in the document was the signature of Allan F. Poe found. There
being no will apparently executed, or at least shown to have been
executed, by decedent Allan F. Poe, the only other proof of voluntary
recognition remained to be "some other public document." In Pareja vs.
Pareja,35 this Court defined what could constitute such a document as
proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public
documents, those executed by private individuals which must
be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document
pointed out in Article 131 as one of the means by which
recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of
illegitimate children into voluntary, legal or compulsory. Voluntary
recognition was required to be expressedly made in a record of birth, a
will, a statement before a court of record or in any authentic writing.
Legal acknowledgment took place in favor of full blood brothers and
sisters of an illegitimate child who was recognized or judicially declared
as natural. Compulsory acknowledgment could be demanded generally
in cases when the child had in his favor any evidence to prove filiation.
Unlike an action to claim legitimacy which would last during the lifetime
of the child, and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be brought during
the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument,
"authentic writing," so as to be an authentic writing for purposes of
voluntary recognition, simply as being a genuine or indubitable writing of
the father. The term would include a public instrument (one duly
acknowledged before a notary public or other competent official) or a
private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article
173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by
any of the following:
"(1) The record of birth appearing in the civil register or a final
judgment; or
"(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the parent
concerned.
"In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
"(1) The open and continuous possession of the status of a
legitimate child; or
"(2) Any other means allowed by the Rules of Court and
special laws.
"Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted to
the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
"The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
6
 "x x x xxx x x x.
"Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same, evidence as
legitimate children.
"The action must be brought within the same period specified
in Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied; Article 256
of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:
"We hold that whether Jose was a voluntarily recognized
natural child should be decided under Article 278 of the Civil
Code of the Philippines. Article 2260 of that Code provides
that 'the voluntary recognition of a natural child shall take
place according to this Code, even if the child was born before
the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the
acknowledgment or recognition of illegitimate children is an attempt to
break away from the traditional idea of keeping well apart legitimate and
non-legitimate relationships within the family in favor of the greater
interest and welfare of the child. The provisions are intended to merely
govern the private and personal affairs of the family. There is little, if any,
to indicate that the legitimate or illegitimate civil status of the individual
would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the
Civil Code, such provisions must be taken in the context of private
relations, the domain of civil law; particularly -
"Civil Law is that branch of law which has for its double
purpose the organization of the family and the regulation of
property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance,
authority and obedience among members of a family, and
those which exist among members of a society for the
protection of private interests."37
In Yañez de Barnuevo vs. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x
the laws relating to family rights and duties, or to the status,
condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in
consequence, 'all questions of a civil nature, such as those
dealing with the validity or nullity of the matrimonial bond, the
domicile of the husband and wife, their support, as between
them, the separation of their properties, the rules governing
property, marital authority, division of conjugal property, the
classification of their property, legal causes for divorce, the
extent of the latter, the authority to decree it, and, in general,
the civil effects of marriage and divorce upon the persons and
properties of the spouses, are questions that are governed
exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best
exemplified in Article 15 of the Civil Code, stating that -
"Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of the
Constitutional provisions on citizenship. Similarly, citizenship is
significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations. 40 In
adoption, for instance, an adopted child would be considered the child
of his adoptive parents and accorded the same rights as their legitimate
child but such legal fiction extended only to define his rights under civil
law41 and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and property
laws, which, while defining proprietary and successional rights of
members of the family, provided distinctions in the rights of legitimate
and illegitimate children. In the monarchial set-up of old Spain, the
distribution and inheritance of titles and wealth were strictly according to
bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in
the Spanish Civil Code, and the invidious discrimination survived when
the Spanish Civil Code became the primary source of our own Civil
Code. Such distinction, however, remains and should remain only in the
sphere of civil law and not unduly impede or impinge on the domain of
political law.
The proof of filiation or paternity for purposes of determining his
citizenship status should thus be deemed independent from and not
inextricably tied up with that prescribed for civil law purposes. The Civil
Code or Family Code provisions on proof of filiation or paternity,
although good law, do not have preclusive effects on matters alien to
personal and family relations. The ordinary rules on evidence could well
and should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code or Family
Code provisions.
Section 39, Rule 130, of the Rules of Court provides -
"Act or Declaration about pedigree. The act or declaration of
a person deceased, or unable to testify, in respect to the
pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The
word `pedigree’ includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these
facts occurred, and the names of the relatives. It embraces
also facts of family history intimately connected with
pedigree."
For the above rule to apply, it would be necessary that (a) the declarant
is already dead or unable to testify, (b) the pedigree of a person must be
at issue, (c) the declarant must be a relative of the person whose
pedigree is in question, (d) declaration must be made before the
controversy has occurred, and (e) the relationship between the declarant
and the person whose pedigree is in question must be shown by
evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas,
sister of Bessie Kelley Poe submitted as Exhibit 20 before the
COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together
with Bessie Kelley and his children (including respondent FPJ) in one
house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind,
presently residing in Stockton, California, U.S.A., after being
sworn in accordance with law do hereby declare that:
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
"3. Fernando and Bessie Poe had a son by the name of
Ronald Allan Poe, more popularly known in the Philippines as
`Fernando Poe, Jr.,’ or `FPJ’.
"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at
St. Luke's Hospital, Magdalena Street, Manila.
7
 "x x x xxx xxx
Bernas, SJ, is most convincing; he states -
"7. Fernando Poe Sr., and my sister Bessie, met and became
engaged while they were students at the University of the
Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first
child in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three
children, Elizabeth, Ronald, Allan and Fernando II, and myself
lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of
Manila in 1945, except for some months between 1943-1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed
with four (4) more children after Ronald Allan Poe.
"x x x xxx xxx
"18. I am executing this Declaration to attest to the fact that
my nephew, Ronald Allan Poe is a natural born Filipino, and
that he is the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of
January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to. A positive
match would clear up filiation or paternity. In Tijing vs. Court of
Appeals,42 this Court has acknowledged the strong weight of DNA
testing -
"Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have
now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR)
analysis. The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and the child are
analyzed to establish parentage. Of course, being a novel scientific
technique, the use of DNA test as evidence is still open to challenge.
Eventually, as the appropriate case comes, courts should not hesitate to
rule on the admissibility of DNA evidence. For it was said, that courts
should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."
Petitioner’s Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen,
he could not have transmitted his citizenship to respondent FPJ, the
latter being an illegitimate child. According to petitioner, prior to his
marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted
marriage with a certain Paulita Gomez, making his subsequent marriage
to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The
veracity of the supposed certificate of marriage between Allan F. Poe
and Paulita Gomez could be most doubtful at best. But the documentary
evidence introduced by no less than respondent himself, consisting of a
birth certificate of respondent and a marriage certificate of his parents
showed that FPJ was born on 20 August 1939 to a Filipino father and an
American mother who were married to each other a year later, or on 16
September 1940. Birth to unmarried parents would make FPJ an
illegitimate child. Petitioner contended that as an illegitimate child, FPJ
so followed the citizenship of his mother, Bessie Kelley, an American
citizen, basing his stand on the ruling of this Court in Morano vs.
Vivo,43 citing Chiongbian vs. de Leo44 and Serra vs. Republic.45
On the above score, the disquisition made by amicus curiae Joaquin G.
"We must analyze these cases and ask what the lis mota was
in each of them. If the pronouncement of the Court on jus
sanguinis was on the lis mota, the pronouncement would be
a decision constituting doctrine under the rule of stare decisis.
But if the pronouncement was irrelevant to the lis mota, the
pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the
Court to look closely into these cases.
"First, Morano vs. Vivo. The case was not about an illegitimate
child of a Filipino father. It was about a stepson of a Filipino,
a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed
the naturalization of the stepfather. Nothing about jus
sanguinis there. The stepson did not have the blood of the
naturalized stepfather.
"Second, Chiongbian vs. de Leon. This case was not about
the illegitimate son of a Filipino father. It was about a
legitimate son of a father who had become Filipino by election
to public office before the 1935 Constitution pursuant to Article
IV, Section 1(2) of the 1935 Constitution. No one was
illegitimate here.
"Third, Serra vs. Republic. The case was not about the
illegitimate son of a Filipino father. Serra was an illegitimate
child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother
who still needed to be naturalized. There is nothing there
about invidious jus sanguinis.
"Finally, Paa vs. Chan.46 This is a more complicated case. The
case was about the citizenship of Quintin Chan who was the
son of Leoncio Chan. Quintin Chan claimed that his father,
Leoncio, was the illegitimate son of a Chinese father and a
Filipino mother. Quintin therefore argued that he got his
citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the
son of a Filipina mother. The Court therefore concluded that
Leoncio was not Filipino. If Leoncio was not Filipino, neither
was his son Quintin. Quintin therefore was not only not a
natural-born Filipino but was not even a Filipino.
"The Court should have stopped there. But instead it followed
with an obiter dictum. The Court said obiter that even if
Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement
about Quintin, based on a contrary to fact assumption, was
absolutely unnecessary for the case. x x x It was obiter dictum,
pure and simple, simply repeating the obiter dictum in Morano
vs. Vivo.
"x x x xxx xxx
"Aside from the fact that such a pronouncement would have
no textual foundation in the Constitution, it would also violate
the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between
a legitimate child and an illegitimate child, and second, it
would make an illegitimate distinction between the illegitimate
child of a Filipino father and the illegitimate child of a Filipino
mother.
"The doctrine on constitutionally allowable distinctions was
established long ago by People vs. Cayat.47 I would grant that
the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences
alone do not justify invidious distinction. Real differences may
justify distinction for one purpose but not for another purpose.
"x x x What is the relevance of legitimacy or illegitimacy to
elective public service? What possible state interest can there
8
 be for disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child that his parents
had illicit liaison. Why deprive the child of the fullness of
political rights for no fault of his own? To disqualify an
illegitimate child from holding an important public office is to
punish him for the indiscretion of his parents. There is neither
justice nor rationality in that. And if there is neither justice nor
rationality in the distinction, then the distinction transgresses
the equal protection clause and must be reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former member
of this Court), Professor Ruben Balane and Dean Martin Magallona, at
bottom, have expressed similar views. The thesis of petitioner,
unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the
citizenship of its mother, it did so for the benefit the child. It was to ensure
a Filipino nationality for the illegitimate child of an alien father in line with
the assumption that the mother had custody, would exercise parental
authority and had the duty to support her illegitimate child. It was to help
the child, not to prejudice or discriminate against him.
The fact of the matter – perhaps the most significant consideration – is
that the 1935 Constitution, the fundamental law prevailing on the day,
month and year of birth of respondent FPJ, can never be more explicit
than it is. Providing neither conditions nor distinctions, the Constitution
states that among the citizens of the Philippines are "those whose
fathers are citizens of the Philippines." There utterly is no cogent
justification to prescribe conditions or distinctions where there clearly are
none provided.
In Sum –
(1) The Court, in the exercise of its power of judicial review,
possesses jurisdiction over the petition in G. R. No. 161824,
filed under Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of
discretion in dismissing, for lack of merit, the petition in SPA
No. 04-003 which has prayed for the disqualification of
respondent FPJ from running for the position of President in
the 10th May 2004 national elections on the contention that
FPJ has committed material representation in his certificate of
candidacy by representing himself to be a natural-born citizen
of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and
prematurity, the petitions in G. R. No. 161434 and No. 161634
both having been directly elevated to this Court in the latter’s
capacity as the only tribunal to resolve a presidential and vice-
presidential election contest under the Constitution. Evidently,
the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse
of discretion has been committed by the COMELEC, it is
necessary to take on the matter of whether or not respondent
FPJ is a natural-born citizen, which, in turn, depended on
whether or not the father of respondent, Allan F. Poe, would
have himself been a Filipino citizen and, in the affirmative,
whether or not the alleged illegitimacy of respondent prevents
him from taking after the Filipino citizenship of his putative
father. Any conclusion on the Filipino citizenship of Lorenzo
Pou could only be drawn from the presumption that having
died in 1954 at 84 years old, Lorenzo would have been born
sometime in the year 1870, when the Philippines was under
Spanish rule, and that San Carlos, Pangasinan, his place of
residence upon his death in 1954, in the absence of any other
evidence, could have well been his place of residence before
death, such that Lorenzo Pou would have benefited from the
"en masse Filipinization" that the Philippine Bill had effected
in 1902. That citizenship (of Lorenzo Pou), if acquired, would
thereby extend to his son, Allan F. Poe, father of respondent
FPJ. The 1935 Constitution, during which regime respondent
FPJ has seen first light, confers citizenship to all persons
whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish
conclusively that respondent FPJ is a natural-born citizen of
the Philippines, the evidence on hand still would preponderate
in his favor enough to hold that he cannot be held guilty of
having made a material misrepresentation in his certificate of
candidacy in violation of Section 78, in relation to Section 74,
of the Omnibus Election Code. Petitioner has utterly failed to
substantiate his case before the Court, notwithstanding the
ample opportunity given to the parties to present their position
and evidence, and to prove whether or not there has been
material misrepresentation, which, as so ruled in Romualdez-
Marcos vs. COMELEC,48 must not only be material, but also
deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS –
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and
Felix B. Desiderio, Jr., Petitioners, versus Commission on
Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe,
Jr.,) and Victorino X. Fornier, Respondents," and G. R. No.
161634, entitled "Zoilo Antonio Velez, Petitioner, versus
Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner,
versus Hon. Commission on Elections and Ronald Allan
Kelley Poe, also known as Fernando Poe, Jr.," for failure to
show grave abuse of discretion on the part of respondent
Commission on Elections in dismissing the petition in SPA No.
04-003.
No Costs.
SO ORDERED.
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS
AND AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation
to Rule 65 of the Rules of Court with extremely urgent application for
an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following: (1)
1 December 2015 Resolution of the Commission on Elections
(COMELEC) Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015
Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA
No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued
without jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found
abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a
9
certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives,
Emiliano Militar (Emiliano) and his wife. Three days after, 6 September
1968, Emiliano reported and registered petitioner as a foundling with the
Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the petitioner was given the name
"Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan
Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a.
Susan Roces) filed a petition for her adoption with the Municipal Trial
Court (MTC) of San Juan City. On 13 May 1974, the trial court granted
their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora
Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed
adoption,2 the petitioner's adoptive mother discovered only sometime in
the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live
Birth indicating petitioner's new name and the name of her adoptive
parents. 3 Without delay, petitioner's mother executed an affidavit
attesting to the lawyer's omission which she submitted to the OCR-Iloilo.
On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the
name of Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner
registered as a voter with the local COMELEC Office in San Juan City.
On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro
Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine
Passport No. F9272876 by the Department of Foreign Affairs (DFA).
Subsequently, on 5 April 1993 and 19 May 1998, she renewed her
Philippine passport and respectively secured Philippine Passport Nos.
L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development
Studies at the University of the Philippines8but she opted to continue her
studies abroad and left for the United States of America (U.S.) in 1988.
Petitioner graduated in 1991 from Boston College in Chestnuts Hill,
Massachusetts where she earned her Bachelor of Arts degree in
Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V.
Llamanzares (Llamanzares), a citizen of both the Philippines and the
U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of
being with her husband who was then based in the U.S., the couple flew
back to the U.S. two days after the wedding ceremony or on 29 July
1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie
(Hanna) and Jesusa Anika (Anika) were both born in the Philippines on
10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American
citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December
2001. 15
On 8 April 2004, the petitioner came back to the Philippines together
with Hanna to support her father's candidacy for President in the May
2004 elections. It was during this time that she gave birth to her youngest
daughter Anika. She returned to the U.S. with her two daughters on 8
July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating
medical condition. 17 Her father slipped into a coma and eventually
expired. The petitioner stayed in the country until 3 February 2005 to
take care of her father's funeral arrangements as well as to assist in the
settlement of his estate.18
According to the petitioner, the untimely demise of her father was a
severe blow to her entire family. In her earnest desire to be with her
grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of
2005.19 The couple began preparing for their resettlement including
notification of their children's schools that they will be transferring to
Philippine schools for the next semester;20coordination with property
movers for the relocation of their household goods, furniture and cars
from the U.S. to the Philippines;21 and inquiry with Philippine authorities
as to the proper procedure to be followed in bringing their pet dog into
the country.22 As early as 2004, the petitioner already quit her job in the
U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed25 while
her husband was forced to stay in the U.S. to complete pending projects
as well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until
she and her husband purchased a condominium unit with a parking slot
at One Wilson Place Condominium in San Juan City in the second half
of 2005.27 The corresponding Condominium Certificates of Title covering
the unit and parking slot were issued by the Register of Deeds of San
Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending
Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.29 She travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S.
Postal Service of the family's change and abandonment of their address
in the U.S.31 The family home was eventually sold on 27 April
2006.32 Petitioner's husband resigned from his job in the U.S. in April
2006, arrived in the country on 4 May 2006 and started working for a
major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter
lot in Corinthian Hills, Quezon City where they built their family
home34 and to this day, is where the couple and their children have been
residing.35 A Transfer Certificate of Title covering said property was
issued in the couple's name by the Register of Deeds of Quezon City on
1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of
the Philippines pursuant to Republic Act (R.A.) No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003.36 Under the same
Act, she filed with the Bureau of Immigration (BI) a sworn petition to
reacquire Philippine citizenship together with petitions for derivative
citizenship on behalf of her three minor children on 10 July 2006. 37 As
can be gathered from its 18 July 2006 Order, the BI acted favorably on
petitioner's petitions and declared that she is deemed to have reacquired
her Philippine citizenship while her children are considered as citizens
of the Philippines.38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3)
children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San
Juan City on 31 August 2006.40 She also secured from the DFA a new
Philippine Passport bearing the No. XX4731999.41 This passport was
renewed on 18 March 2014 and she was issued Philippine Passport No.
EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner
as Chairperson of the Movie and Television Review and Classification
Board (MTRCB).43 Before assuming her post, petitioner executed an
"Affidavit of Renunciation of Allegiance to the United States of America
and Renunciation of American Citizenship" before a notary public in
Pasig City on 20 October 2010,44 in satisfaction of the legal requisites
stated in Section 5 of R.A. No. 9225.45 The following day, 21 October
2010 petitioner submitted the said affidavit to the BI46 and took her oath
of office as Chairperson of the MTRCB.47 From then on, petitioner
stopped using her American passport.48
10
On 12 July 2011, the petitioner executed before the Vice Consul of the
U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of
Nationality of the United States."49 On that day, she accomplished a
sworn questionnaire before the U.S. Vice Consul wherein she stated that
she had taken her oath as MTRCB Chairperson on 21 October 2010
with the intent, among others, of relinquishing her American
citizenship.50 In the same questionnaire, the petitioner stated that she
had resided outside of the U.S., specifically in the Philippines, from 3
September 1968 to 29 July 1991 and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a
"Certificate of Loss of Nationality of the United States" effective 21
October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her
Certificate of Candidacy (COC) for Senator for the 2013 Elections
wherein she answered "6 years and 6 months" to the question "Period
of residence in the Philippines before May 13, 2013."53 Petitioner
obtained the highest number of votes and was proclaimed Senator on
16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic
Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the
May 2016 Elections. 56 In her COC, the petitioner declared that she is a
natural-born citizen and that her residence in the Philippines up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months
counted from 24 May 2005.57 The petitioner attached to her COC an
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and
sworn to before a notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were
the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which
was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division.59She is convinced that the COMELEC has jurisdiction
over her petition.60 Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her COC that
she is a natural-born Filipino citizen and that she is a resident of the
Philippines for at least ten (10) years and eleven (11) months up to the
day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was
a foundling.62 Elamparo claimed that international law does not confer
natural-born status and Filipino citizenship on foundlings.63 Following
this line of reasoning, petitioner is not qualified to apply for reacquisition
of Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with.64Even assuming arguendo that petitioner
was a natural-born Filipino, she is deemed to have lost that status when
she became a naturalized American citizen.65 According to Elamparo,
natural-born citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that
petitioner was bound by the sworn declaration she made in her 2012
COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No.
9225, she still fell short of the ten-year residency requirement of the
Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said
Act. Also on the assumption that petitioner is qualified to reacquire lost
Philippine Citizenship, Elamparo is of the belief that she failed to
reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's
petition as it was actually a petition for quo warranto which
could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has
primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did
not contain allegations which, if hypothetically admitted, would
make false the statement in her COC that she is a natural-
born Filipino citizen nor was there any allegation that there
was a willful or deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the
COC regarding her citizenship and residency qualifications
for:
a. the 1934 Constitutional Convention deliberations
show that foundlings were considered citizens;
b. foundlings are presumed under international law
to have been born of citizens of the place where
they are found;
c. she reacquired her natural-born Philippine
citizenship under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her
American citizenship prior to the filing of her COC
for President in the May 9, 2016 Elections and that
the same is in full force and effect and has not been
withdrawn or recanted;
e. the burden was on Elamparo in proving that she
did not possess natural-born status;
f. residence is a matter of evidence and that she
reestablished her domicile in the Philippines as
early as May 24, 2005;
g. she could reestablish residence even before she
reacquired natural-born citizenship under R.A. No.
9225;
h. statement regarding the period of residence in
her 2012 COC for Senator was an honest mistake,
not binding and should give way to evidence on her
true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp
the sovereign right of the Filipino people to decide
a purely political question, that is, should she serve
as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running
for the President of the Republic of the Philippines in the 9 May 2016
National and Local Elections, contained material representations which
are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant
Petition to Deny Due Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora
Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed
by petitioner which the COMELEC En Banc resolved in its 23 December
2015 Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
11
This case stemmed from three (3) separate petitions filed by Francisco
S. Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D.
Valdez (Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC
Rules of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged
that petitioner lacks the requisite residency and citizenship to qualify her
for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings,
cannot be considered natural-born Filipino citizens since blood
relationship is determinative of natural-born status.73 Tatad invoked the
rule of statutory construction that what is not included is excluded. He
averred that the fact that foundlings were not expressly included in the
categories of citizens in the 193 5 Constitution is indicative of the
framers' intent to exclude them.74 Therefore, the burden lies on petitioner
to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or
treaties to support her claim that foundlings have a
nationality.76 According to Tatad, international conventions and treaties
are not self-executory and that local legislations are necessary in order
to give effect to treaty obligations assumed by the Philippines.77 He also
stressed that there is no standard state practice that automatically
confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot
avail of the option to reacquire Philippine citizenship under R.A. No.
9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did
not comply with the ten (10) year residency requirement.80 Tatad opined
that petitioner acquired her domicile in Quezon City only from the time
she renounced her American citizenship which was sometime in 2010
or 2011.81 Additionally, Tatad questioned petitioner's lack of intention to
abandon her U.S. domicile as evinced by the fact that her husband
stayed thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of
petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her
repatriation under R.A. No. 9225 did not bestow upon her the status of
a natural-born citizen.83 He advanced the view that former natural-born
citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-
born citizens.84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6)
years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not
meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President
should be cancelled on the ground that she did not possess the ten-year
period of residency required for said candidacy and that she made false
entry in her COC when she stated that she is a legal resident of the
Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing
petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved
by the BI.87 He asserted that petitioner's physical presence in the country
before 18 July 2006 could not be valid evidence of reacquisition of her
Philippine domicile since she was then living here as an American citizen
and as such, she was governed by the Philippine immigration laws. 88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a
cause of action. His petition did not invoke grounds proper for a
disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.89 Instead, Tatad completely relied on the
alleged lack of residency and natural-born status of petitioner which are
not among the recognized grounds for the disqualification of a candidate
to an elective office.90
Second, the petitions filed against her are basically petitions for quo
warranto as they focus on establishing her ineligibility for the
Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen
is on the respondents.93 Otherwise stated, she has a presumption in her
favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled
to a nationality and are presumed to be citizens of the country where
they are found.94 Consequently, the petitioner is considered as a natural-
born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to
be repatriated under R.A. No. 9225 or the right to reacquire her natural-
born status.96 Moreover, the official acts of the Philippine Government
enjoy the presumption of regularity, to wit: the issuance of the 18 July
2006 Order of the BI declaring her as natural-born citizen, her
appointment as MTRCB Chair and the issuance of the decree of
adoption of San Juan RTC.97 She believed that all these acts reinforced
her position that she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she
started reestablishing her domicile of choice in the Philippines as
demonstrated by her children's resettlement and schooling in the
country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of
choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile
are complied with.100She reasoned out that there was no requirement
that renunciation of foreign citizenship is a prerequisite for the
acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion
of her COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC
First Division ruled that petitioner is not a natural-born citizen, that she
failed to complete the ten (10) year residency requirement, and that she
committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9
May 2016. The COMELEC First Division concluded that she is not
qualified for the elective position of President of the Republic of the
Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as
it hereby RESOLVES, to GRANT the Petitions and cancel the
Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of
the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted
the present petitions for certiorari with urgent prayer for the issuance of
an ex parte temporary restraining order/status quo ante order and/or
writ of preliminary injunction. On 28 December 2015, temporary
restraining orders were issued by the Court enjoining the COMELEC
12
and its representatives from implementing the assailed COMELEC
Resolutions until further orders from the Court. The Court also ordered
the consolidation of the two petitions filed by petitioner in its Resolution
of 12 January 2016. Thereafter, oral arguments were held in these
cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-
Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its
Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its
First Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; SPA No.
15-007 (DC) entitled Antonio P. Contreras, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 1 December 2015 Resolution of the
Second Division.
4. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 11 December 2015 Resolution of the First
Division.
The procedure and the conclusions from which the questioned
Resolutions emanated are tainted with grave abuse of discretion
amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that
she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC
and restrain it from going into the issue of the qualifications of the
candidate for the position, if, as in this case, such issue is yet undecided
or undetermined by the proper authority. The COMELEC cannot itself,
in the same cancellation case, decide the qualification or lack thereof of
the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following
powers and functions:
(1) Enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum,
and recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of
limited jurisdiction.
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) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in
national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be
prescribed by law.
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend 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.
(9) Submit to the President and the Congress a
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of
the provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or the
House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the
political parties and the parties or organizations registered
under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of
all contests relating to the election, returns, and qualifications
of the President or Vice-President, and may promulgate its
rules for the purpose.
The tribunals which have jurisdiction over the question of the
qualifications of the President, the Vice-President, Senators and the
Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these
positions.
Can the COMELEC be such judge?
13
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,104 which was affirmatively cited in the En
Banc decision in Fermin v. COMELEC105 is our guide. The citation
in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring
the ineligibility of candidates, the COMELEC amended its rules on
February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not
possess all the qualifications of a candidate as provided for by
the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is equivalent
to the creation of a cause of action which is a substantive matter which
the COMELEC, in the exercise of its rule-making power under Art. IX, A,
§6 of the Constitution, cannot do it. It is noteworthy that the Constitution
withholds from the COMELEC even the power to decide cases involving
the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters.
[Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the evident
intention of the law. For not only in their grounds but also in their
consequences are proceedings for "disqualification" different from those
for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in § 12 and §68 of the
Omnibus Election Code and in §40 of the Local Government Code and
are for the purpose of barring an individual from becoming a candidate
or from continuing as a candidate for public office. In a word, their
purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of
the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a
candidate or continuing as a candidate for a public office and vice versa.
We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473)
That an alien has the qualifications prescribed in §2 of the Law does not
imply that he does not suffer from any of [the] disqualifications provided
in §4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the
opinion is in its statement that "the lack of provision for declaring the
ineligibility of candidates, however, cannot be supplied by a mere rule".
Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a
candidate.
First is the fact that unless a candidate wins and is proclaimed elected,
there is no necessity for determining his eligibility for the office. In
contrast, whether an individual should be disqualified as a candidate for
acts constituting election offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his
disqualification is being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate will not be voted
for; if he has been voted for, the votes in his favor will not be counted;
and if for some reason he has been voted for and he has won, either he
will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates'
eligibility, e.g., his citizenship or, as in this case, his domicile, may take
a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the
elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of
candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation
cases in elections for President, Vice President, Senators and members
of the House of Representatives. (R.A. No. 7166, § 15) The purpose is
to preserve the prerogatives of the House of Representatives Electoral
Tribunal and the other Tribunals as "sole judges" under the Constitution
of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC
Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party,
is declared by final decision of a competent court, guilty of, or found by
the Commission to be suffering from any disqualification provided by law
or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to
Deny to or Cancel a Certificate of Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify
a candidate there must be a declaration by a final judgment of a
competent court that the candidate sought to be disqualified "is guilty of
or found by the Commission to be suffering from any disqualification
provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and
Rule 23 are flipsides of one to the other. Both do not allow, are not
authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of qualification
may be by statute, by executive order or by a judgment of a competent
court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she
is suffering from a disqualification "provided by law or the Constitution,"
neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not
qualified, such prior authority being the necessary measure by which the
falsity of the representation can be found. The only exception that can
be conceded are self-evident facts of unquestioned or unquestionable
veracity and judicial confessions. Such are, anyway, bases equivalent
to prior decisions against which the falsity of representation can be
determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false
representations regarding the candidate's citizenship and residence,
forced the COMELEC to rule essentially that since foundlings 108 are not
mentioned in the enumeration of citizens under the 1935
14
Constitution,109 they then cannot be citizens. As the COMELEC stated
in oral arguments, when petitioner admitted that she is a foundling, she
said it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain
that such relationship is indemonstrable," proceeded to say that "she
now has the burden to present evidence to prove her natural filiation with
a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of
the Philippines has a whole chapter on Paternity and Filiation. 110 That
said, there is more than sufficient evider1ce that petitioner has Filipino
parents and is therefore a natural-born Filipino. Parenthetically, the
burden of proof was on private respondents to show that petitioner is not
a Filipino citizen. The private respondents should have shown that both
of petitioner's parents were aliens. Her admission that she is a foundling
did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case
where there is a high probability, if not certainty, that her parents are
Filipinos.
The factual issue is not who the parents of petitioner are, as their
identities are unknown, but whether such parents are Filipinos. Under
Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a
relation to the fact in issue as to induce belief in its existence or no-
existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine
Statistics Authority (PSA)111 that from 1965 to 1975, the total number of
foreigners born in the Philippines was 15,986 while the total number of
Filipinos born in the country was 10,558,278. The statistical probability
that any child born in the Philippines in that decade is natural-born
Filipino was 99.83%. For her part, petitioner presented census statistics
for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of
the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures
for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year,
there were 210,349 Filipino males and 886 male aliens, or 99.58%. In
1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not dispute
these figures. Notably, Commissioner Arthur Lim admitted, during the
oral arguments, that at the time petitioner was found in 1968, the majority
of the population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents
are the fact that she was abandoned as an infant in a Roman Catholic
Church in Iloilo City.1âwphi1 She also has typical Filipino features:
height, flat nasal bridge, straight black hair, almond shaped eyes and an
oval face.
There is a disputable presumption that things have happened according
to the ordinary course of nature and the ordinary habits of life. 113 All of
the foregoing evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of
the Philippines is overwhelmingly Filipinos such that there would be
more than a 99% chance that a child born in the province would be a
Filipino, would indicate more than ample probability if not statistical
certainty, that petitioner's parents are Filipinos. That probability and the
evidence on which it is based are admissible under Rule 128, Section 4
of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually
impossible, as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come
to the Philippines so they can get pregnant and leave their newborn
babies behind. We do not face a situation where the probability is such
that every foundling would have a 50% chance of being a Filipino and a
50% chance of being a foreigner. We need to frame our questions
properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that
the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of
foreign parents. Thus, for that sample period, the ratio of non-Filipino
children to natural born Filipino children is 1:1357. This means that the
statistical probability that any child born in the Philippines would be a
natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines
is 15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661.
This means that the statistical probability that any child born in the
Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the
numbers for us, but I am confident that the statistical probability that a
child born in the Philippines would be a natural born Filipino will not be
affected by whether or not the parents are known. If at all, the likelihood
that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps,
shame. We do not imagine foreigners abandoning their children here in
the Philippines thinking those infants would have better economic
opportunities or believing that this country is a tropical paradise suitable
for raising abandoned children. I certainly doubt whether a foreign
couple has ever considered their child excess baggage that is best left
behind.
To deny full Filipino citizenship to all foundlings and render them
stateless just because there may be a theoretical chance that one
among the thousands of these foundlings might be the child of not just
one, but two, foreigners is downright discriminatory, irrational, and
unjust. It just doesn't make any sense. Given the statistical certainty -
99.9% - that any child born in the Philippines would be a natural born
citizen, a decision denying foundlings such status is effectively a denial
of their birthright. There is no reason why this Honorable Court should
use an improbable hypothetical to sacrifice the fundamental political
rights of an entire class of human beings. Your Honor, constitutional
interpretation and the use of common sense are not separate
disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While
the 1935 Constitution's enumeration is silent as to foundlings, there is
no restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the
intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the
framers.115
As pointed out by petitioner as well as the Solicitor General, the
deliberations of the 1934 Constitutional Convention show that the
framers intended foundlings to be covered by the enumeration. The
following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a
Filipino mother not recognized by the father.
15
xxxx illegitimate children with a foreign father of a mother who was
a citizen of the Philippines, and also foundlings; but this
President: amendment was defeated primarily because the Convention
[We] would like to request a clarification from the proponent of the believed that the cases, being too few to warrant the inclusion
amendment. The gentleman refers to natural children or to any kind of of a provision in the Constitution to apply to them, should be
illegitimate children? governed by statutory legislation. Moreover, it was believed
that the rules of international law were already clear to the
Sr. Rafols: effect that illegitimate children followed the citizenship of the
To all kinds of illegitimate children. It also includes natural children of mother, and that foundlings followed the nationality of the
unknown parentage, natural or illegitimate children of unknown parents. place where they were found, thereby making unnecessary
the inclusion in the Constitution of the proposed amendment.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current This explanation was likewise the position of the Solicitor General during
codes consider them Filipino, that is, I refer to the Spanish Code wherein the 16 February 2016 Oral Arguments:
all children of unknown parentage born in Spanish territory are
considered Spaniards, because the presumption is that a child of We all know that the Rafols proposal was rejected. But note that what
unknown parentage is the son of a Spaniard. This may be applied in the was declined was the proposal for a textual and explicit recognition of
Philippines in that a child of unknown parentage born in the Philippines foundlings as Filipinos. And so, the way to explain the constitutional
is deemed to be Filipino, and there is no need ... silence is by saying that it was the view of Montinola and Roxas which
prevailed that there is no more need to expressly declare foundlings as
Sr. Rafols: Filipinos.
There is a need, because we are relating the conditions that are
[required] to be Filipino. Obviously, it doesn't matter whether Montinola's or Roxas' views were
legally correct. Framers of a constitution can constitutionalize rules
Sr. Montinola: based on assumptions that are imperfect or even wrong. They can even
But that is the interpretation of the law, therefore, there is no [more] need overturn existing rules. This is basic. What matters here is that Montinola
for amendment. and Roxas were able to convince their colleagues in the convention that
there is no more need to expressly declare foundlings as Filipinos
Sr. Rafols: because they are already impliedly so recognized.
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother In other words, the constitutional silence is fully explained in terms of
recognized by one, or the children of unknown parentage." linguistic efficiency and the avoidance of redundancy. The policy is clear:
it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section
Sr. Briones: 1 (3) of the 1935 Constitution. This inclusive policy is carried over into
The amendment [should] mean children born in the Philippines of the 1973 and 1987 Constitution. It is appropriate to invoke a famous
unknown parentage. scholar as he was paraphrased by Chief Justice Fernando: the
constitution is not silently silent, it is silently vocal. 118
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not The Solicitor General makes the further point that the framers "worked
recognize the child, is not unknown. to create a just and humane society," that "they were reasonable patriots
and that it would be unfair to impute upon them a discriminatory intent
President: against foundlings." He exhorts that, given the grave implications of the
Does the gentleman accept the amendment or not? argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an
express intention to deny foundlings the status of Filipinos. The burden
Sr. Rafols:
I do not accept the amendment because the amendment would exclude is on those who wish to use the constitution to discriminate against
the children of a Filipina with a foreigner who does not recognize the foundlings to show that the constitution really intended to take this path
to the dark side and inflict this across the board marginalization."
child. Their parentage is not unknown and I think those of overseas
Filipino mother and father [whom the latter] does not recognize, should
also be considered as Filipinos. We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic
President: right to equal protection of the laws. All exhort the State to render social
justice. Of special consideration are several provisions in the present
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones. charter: Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for human
rights," Article XIII, Section 1 which mandates Congress to "give highest
Sr. Busion:
priority to the enactment of measures that protect and enhance the right
Mr. President, don't you think it would be better to leave this matter in
of all the people to human dignity, reduce social, economic, and political
the hands of the Legislature?
inequalities x x x" and Article XV, Section 3 which requires the State to
defend the "right of children to assistance, including proper care and
Sr. Roxas: nutrition, and special protection from all forms of neglect, abuse, cruelty,
Mr. President, my humble opinion is that these cases are few and far in exploitation, and other conditions prejudicial to their development."
between, that the constitution need [not] refer to them. By international Certainly, these provisions contradict an intent to discriminate against
law the principle that children or people born in a country of unknown foundlings on account of their unfortunate status.
parents are citizens in this nation is recognized, and it is not necessary
to include a provision on the subject exhaustively.116
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship
Though the Rafols amendment was not carried out, it was not because upon the adoptee. Rather, the adoptee must be a Filipino in the first
there was any objection to the notion that persons of "unknown place to be adopted. The most basic of such laws is Article 15 of the
parentage" are not citizens but only because their number was not Civil Code which provides that "[l]aws relating to family rights, duties,
enough to merit specific mention. Such was the account, 117 cited by status, conditions, legal capacity of persons are binding on citizens of
petitioner, of delegate and constitution law author Jose Aruego who said: the Philippines even though living abroad." Adoption deals with status,
and a Philippine adoption court will have jurisdiction only if the adoptee
During the debates on this provision, Delegate Rafols is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified
presented an amendment to include as Filipino citizens the mother was sought to be adopted by aliens. This Court said:
16
In this connection, it should be noted that this is a proceedings in
rem, which no court may entertain unless it has jurisdiction, not only over
the subject matter of the case and over the parties, but also over the
res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is determined by the
latter's nationality. Pursuant to this theory, we have jurisdiction over the
status of Baby Rose, she being a citizen of the Philippines, but not over
the status of the petitioners, who are foreigners. 120 (Underlining
supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act
Establishing the Rules to Govern the Inter-Country Adoption of Filipino
Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children
and For Other Purposes" (otherwise known as the Domestic Adoption
Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on
Adoption," all expressly refer to "Filipino children" and include foundlings
as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these
laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at
best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens
are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship." In the
first place, "having to perform an act" means that the act must be
personally done by the citizen. In this instance, the determination of
foundling status is done not by the child but by the
authorities.121 Secondly, the object of the process is the determination of
the whereabouts of the parents, not the citizenship of the child. Lastly,
the process is certainly not analogous to naturalization proceedings to
acquire Philippine citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under the 1935 Constitution,
which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued
in her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as
her "foundling parents," hence effectively affirming petitioner's status as
a foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation.124 On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty
obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized
nations.125 International customary rules are accepted as binding as a
result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.126 "General principles of law
recognized by civilized nations" are principles "established by a process
of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally,"127 such as "general principles of
equity, i.e., the general principles of fairness and justice," and the
"general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, the Convention
Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and
Occupation."128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted
by this Court as part of the generally accepted principles of international
law and binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of
the Child (UNCRC). Article 7 of the UNCRC imposes the following
obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and as far
as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the
relevant international instruments in this field, in particular where the
child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right
of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth, the
right, to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have
a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it
cannot be accomplished by the application of our present naturalization
laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139,
both of which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The
first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is
presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall
be determined by the rules applicable in cases where the parentage is
known.
A foundling is, until the contrary is proved, presumed to have been born
on the territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of
citizens of the country where he is found, contained in Article 2 of the
1961 United Nations Convention on the Reduction of Statelessness:
Article 2
17
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within
the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to
the 1961 Convention on the Reduction of Statelessness does not mean
that their principles are not binding. While the Philippines is not a party
to the 1930 Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) ofwhich131effectively affirms
Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United
Nations Convention on the Reduction of Statelessness" merely "gives
effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court
noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced
disappearances in the said convention was nonetheless binding as a
"generally accepted principle of international law." Razon v. Tagitis is
likewise notable for declaring the ban as a generally accepted principle
of international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed the
ratification of a minimum of twenty states. Additionally, as petitioner
points out, the Court was content with the practice of international and
regional state organs, regional state practice in Latin America, and State
Practice in the United States.
Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada, 134 where only four countries had
"either ratified or acceded to"135 the 1966 "Convention on the
Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters" when the case was decided in 2005. The Court
also pointed out that that nine member countries of the European
Common Market had acceded to the Judgments Convention. The Court
also cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that recognition of foreign
judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the
fact that "generally accepted principles of international law" are based
not only on international custom, but also on "general principles of law
recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
policy against discrimination, which are fundamental principles
underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under
the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North
and South America, and Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the
1961 Convention on Statelessness; twenty-six (26) are not signatories
to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or
87.83%), foundlings are recognized as citizens. These circumstances,
including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings
as having been born of nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the Philippines to this
generally accepted principle of international law. In particular, R.A. No.
8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer
to "Filipino children." In all of them, foundlings are among the Filipino
children who could be adopted. Likewise, it has been pointed that the
DFA issues passports to foundlings. Passports are by law, issued only
to citizens. This shows that even the executive department, acting
through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and
the 1961 Convention on Statelessness is rational and reasonable and
consistent with the jus sanguinis regime in our Constitution. The
presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the
empirical data provided by the PSA show, that presumption is at more
than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the
matter of nationality of foundlings were designed to address the plight of
a defenseless class which suffers from a misfortune not of their own
making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of
nations. The Solicitor General's warning in his opening statement is
relevant:
.... the total effect of those documents is to signify to this Honorable
Court that those treaties and conventions were drafted because the
world community is concerned that the situation of foundlings renders
them legally invisible. It would be tragically ironic if this Honorable Court
ended up using the international instruments which seek to protect and
uplift foundlings a tool to deny them political status or to accord them
second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006
under the provisions of R.A. No. 9225 did not result in the reacquisition
of natural-born citizenship. The COMELEC reasoned that since the
applicant must perform an act, what is reacquired is not "natural-born"
citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on
the matter of repatriation statutes in general and of R.A. No. 9225 in
particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was
explained as follows:
Moreover, repatriation results in the recovery of the original nationality.
This means that a naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such
in several cases. They include Sobejana-Condon v.
COMELEC141 where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included
is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of
Appeals,143where we said that "[t]he repatriation of the former Filipino
will allow him to recover his natural-born citizenship. Parreno v.
Commission on Audit144 is categorical that "if petitioner reacquires his
Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-
born citizenship."
The COMELEC construed the phrase "from birth" in the definition of
natural citizens as implying "that natural-born citizenship must begin at
birth and remain uninterrupted and continuous from birth." R.A. No. 9225
was obviously passed in line with Congress' sole prerogative to
determine how citizenship may be lost or reacquired. Congress saw it fit
to decree that natural-born citizenship may be reacquired even if it had
been once lost. It is not for the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the
phrase "from birth" was clarified to mean at the time of birth: "A person
who at the time of his birth, is a citizen of a particular country, is a natural-
born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out
that there are only two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there is no third category
for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law.
A citizen who is not a naturalized Filipino, ie., did not have to undergo
the process of naturalization to obtain Philippine citizenship, necessarily
18
is a natural-born Filipino. Noteworthy is the absence in said enumeration
of a separate category for persons who, after losing Philippine
citizenship, subsequently reacquire it. The reason therefor is clear: as to
such persons, they would either be natural-born or naturalized
depending on the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce a natural-
born Filipino. As such, he possessed all the necessary qualifications to
be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to
this Court. And while we may always revisit a doctrine, a new rule
reversing standing doctrine cannot be retroactively applied. In Morales
v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we
decreed reversed the condonation doctrine, we cautioned that it "should
be prospective in application for the reason that judicial decisions
applying or interpreting the laws of the Constitution, until reversed, shall
form part of the legal system of the Philippines." This Court also said that
"while the future may ultimately uncover a doctrine's error, it should be,
as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that
petitioner committed a falsehood when she put in the spaces for "born
to" in her application for repatriation under R.A. No. 9225 the names of
her adoptive parents, and this misled the BI to presume that she was a
natural-born Filipino. It has been contended that the data required were
the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally
adopted. One of the effects of adoption is "to sever all legal ties between
the biological parents and the adoptee, except when the biological
parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner
was also entitled to an amended birth certificate "attesting to the fact that
the adoptee is the child of the adopter(s)" and which certificate "shall not
bear any notation that it is an amended issue."150 That law also requires
that "[a]ll records, books, and papers relating to the adoption cases in
the files of the court, the Department [of Social Welfare and
Development], or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential." 151 The law
therefore allows petitioner to state that her adoptive parents were her
birth parents as that was what would be stated in her birth certificate
anyway. And given the policy of strict confidentiality of adoption records,
petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which
it cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether
or not petitioner committed false material representation when she
stated in her COC that she has before and until 9 May 2016 been a
resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years
and eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years.
In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11
months" which according to her pleadings in these cases corresponds
to a beginning date of 25 May 2005 when she returned for good from
the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire
a new domicile: 1. Residence or bodily presence in a new locality; 2. an
intention to remain there; and 3. an intention to abandon the old
domicile.152 To successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the
purpose. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her
family abandoned their U.S. domicile and relocated to the Philippines for
good. These evidence include petitioner's former U.S. passport showing
her arrival on 24 May 2005 and her return to the Philippines every time
she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of
their household items weighing about 28,000 pounds to the Philippines;
e-mail with the Philippine Bureau of Animal Industry inquiring how to ship
their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding
years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23
February 2005 from the Salvation Army in the U.S. acknowledging
donation of items from petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of address; final statement
from the First American Title Insurance Company showing sale of their
U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had
been a Philippine resident since May 2005; affidavit from Jesusa Sonora
Poe (attesting to the return of petitioner on 24 May 2005 and that she
and her family stayed with affiant until the condominium was purchased);
and Affidavit from petitioner's husband (confirming that the spouses
jointly decided to relocate to the Philippines in 2005 and that he stayed
behind in the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed
by the COMELEC, particularly in its Resolution in the Tatad, Contreras
and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile
had been timely changed as of 24 May 2005. At the oral arguments,
COMELEC Commissioner Arthur Lim conceded the presence of the first
two requisites, namely, physical presence and animus manendi, but
maintained there was no animus non-revertendi.154 The COMELEC
disregarded the import of all the evidence presented by petitioner on the
basis of the position that the earliest date that petitioner could have
started residence in the Philippines was in July 2006 when her
application under R.A. No. 9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral
arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the
stay of an alien former Filipino cannot be counted until he/she obtains a
permanent resident visa or reacquires Philippine citizenship, a visa-free
entry under a balikbayan stamp being insufficient. Since petitioner was
still an American (without any resident visa) until her reacquisition of
citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July
2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,159 the only
evidence presented was a community tax certificate secured by the
candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC160 did not involve a candidate who
wanted to count residence prior to his reacquisition of Philippine
citizenship. With the Court decreeing that residence is distinct from
citizenship, the issue there was whether the candidate's acts after
reacquisition sufficed to establish residence. In Caballero v.
COMELEC, 161 the candidate admitted that his place of work was abroad
and that he only visited during his frequent vacations. In Reyes v.
COMELEC,162 the candidate was found to be an American citizen who
had not even reacquired Philippine citizenship under R.A. No. 9225 or
had renounced her U.S. citizenship. She was disqualified on the
citizenship issue. On residence, the only proof she offered was a seven-
19
month stint as provincial officer. The COMELEC, quoted with approval
by this Court, said that "such fact alone is not sufficient to prove her one-
year residency."
It is obvious that because of the sparse evidence on residence in the
four cases cited by the respondents, the Court had no choice but to hold
that residence could be counted only from acquisition of a permanent
resident visa or from reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and taken together leads to
no other conclusion that she decided to permanently abandon her U.S.
residence (selling the house, taking the children from U.S. schools,
getting quotes from the freight company, notifying the U.S. Post Office
of the abandonment of their address in the U.S., donating excess items
to the Salvation Army, her husband resigning from U.S. employment
right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May
2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines
after all trips abroad, her husband getting employed here). Indeed,
coupled with her eventual application to reacquire Philippine citizenship
and her family's actual continuous stay in the Philippines over the years,
it is clear that when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she
had entered the Philippines visa-free as a balikbayan. A closer look at
R.A. No. 6768 as amended, otherwise known as the "An Act Instituting
a Balikbayan Program," shows that there is no overriding intent to
treat balikbayans as temporary visitors who must leave after one year.
Included in the law is a former Filipino who has been naturalized abroad
and "comes or returns to the Philippines." 163 The law institutes
a balikbayan program "providing the opportunity to avail of the
necessary training to enable the balikbayan to become economically
self-reliant members of society upon their return to the country"164in line
with the government's "reintegration
program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and
help him reintegrate into society, it would be an unduly harsh conclusion
to say in absolute terms that the balikbayan must leave after one year.
That visa-free period is obviously granted him to allow him to re-establish
his life and reintegrate himself into the community before he attends to
the necessary formal and legal requirements of repatriation. And that is
exactly what petitioner did - she reestablished life here by enrolling her
children and buying property while awaiting the return of her husband
and then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been
decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the
facts of residence of petitioner. There is no indication in Coquilla v.
COMELEC,166 and the other cases cited by the respondents that the
Court intended to have its rulings there apply to a situation where the
facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence
of petitioner, the COMELEC ruled that petitioner's claim of residence of
ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC
was false because she put six ( 6) years and six ( 6) months as "period
of residence before May 13, 2013" in her 2012 COC for Senator. Thus,
according to the COMELEC, she started being a Philippine resident only
in November 2006. In doing so, the COMELEC automatically assumed
as true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood
the date required in the 2013 COC as the period of residence as of the
day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that residence could be
counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012
(period of residence before 13 May 2013) as inquiring about residence
as of the time she submitted the COC, is bolstered by the change which
the COMELEC itself introduced in the 2015 COC which is now "period
of residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge
that the first version was vague.
That petitioner could have reckoned residence from a date earlier than
the sale of her U.S. house and the return of her husband is plausible
given the evidence that she had returned a year before. Such evidence,
to repeat, would include her passport and the school records of her
children.
It was grave abuse of discretion for the COMELEC to treat the 2012
COC as a binding and conclusive admission against petitioner. It could
be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as
to period of residence made in a COC was overcome by
evidence. In Romualdez-Marcos v. COMELEC,167 the candidate
mistakenly put seven (7) months as her period of residence where the
required period was a minimum of one year. We said that "[i]t is the fact
of residence, not a statement in a certificate of candidacy which ought
to be decisive in determining whether or not an individual has satisfied
the constitutions residency qualification requirement." The COMELEC
ought to have looked at the evidence presented and see if petitioner was
telling the truth that she was in the Philippines from 24 May 2005. Had
the COMELEC done its duty, it would have seen that the 2012 COC and
the 2015 COC both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not
because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under
R.A. No. 9225 in July 2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and was here to stay
permanently, on 24 May 2005. When she claimed to have been a
resident for ten (10) years and eleven (11) months, she could do so in
good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which
the COMELEC pegged the commencement of residence, petitioner's
repatriation in July 2006 under R.A. No. 9225, was an established fact
to repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6)
months in the 2012 COC, petitioner recounted that this was first brought
up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United
Nationalist Alliance. Petitioner appears to have answered the issue
immediately, also in the press. Respondents have not disputed
petitioner's evidence on this point. From that time therefore when Rep.
Tiangco discussed it in the media, the stated period of residence in the
2012 COC and the circumstances that surrounded the statement were
already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the
SET petition for quo warranto. Her Verified Answer, which was filed on
1 September 2015, admitted that she made a mistake in the 2012 COC
when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her
answer in the SET case was a matter of public record. Therefore, when
petitioner accomplished her COC for President on 15 October 2015, she
could not be said to have been attempting to hide her erroneous
statement in her 2012 COC for Senator which was expressly mentioned
in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at
an intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does
not necessarily constitute material misrepresentation which is the sole
ground for denying due course to, and for the cancellation of, a COC.
Further, as already discussed, the candidate's misrepresentation in his
20
COC must not only refer to a material fact (eligibility and qualifications In early 2006, [petitioner] and her husband acquired a vacant lot in
for elective office), but should evince a deliberate intent to mislead, Corinthian Hills, where they eventually built their family home.170
misinform or hide a fact which would otherwise render a candidate
ineligible. It must be made with an intention to deceive the electorate as In light of all these, it was arbitrary for the COMELEC to satisfy its
to one's qualifications to run for public office. 168 intention to let the case fall under the exclusive ground of false
representation, to consider no other date than that mentioned by
In sum, the COMELEC, with the same posture of infallibilism, virtually petitioner in her COC for Senator.
ignored a good number of evidenced dates all of which can
evince animus manendi to the Philippines and animus non revertedi to All put together, in the matter of the citizenship and residence of
the United States of America. The veracity of the events of coming and petitioner for her candidacy as President of the Republic, the questioned
staying home was as much as dismissed as inconsequential, the focus Resolutions of the COMELEC in Division and En Banc are, one and all,
having been fixed at the petitioner's "sworn declaration in her COC for deadly diseased with grave abuse of discretion from root to fruits.
Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for 1. dated 1 December 2015 rendered through the COMELEC Second
President." This conclusion, as already shown, ignores the standing Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo,
jurisprudence that it is the fact of residence, not the statement of the petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
person that determines residence for purposes of compliance with the respondent, stating that:
constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of [T]he Certificate of Candidacy for President of the Republic of the
residency have been decided favorably for the candidate on the basis of Philippines in the May 9, 2016 National and Local Elections filed by
facts of residence far less in number, weight and substance than that respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
presented by petitioner.169 It ignores, above all else, what we consider GRANTED.
as a primary reason why petitioner cannot be bound by her declaration
in her COC for Senator which declaration was not even considered by
2. dated 11 December 2015, rendered through the COMELEC First
the SET as an issue against her eligibility for Senator. When petitioner Division, in the consolidated cases SPA No. 15-002 (DC)
made the declaration in her COC for Senator that she has been a
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora
resident for a period of six (6) years and six (6) months counted up to
Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio
the 13 May 2013 Elections, she naturally had as reference the residency P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
requirements for election as Senator which was satisfied by her declared
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
years of residence. It was uncontested during the oral arguments before
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
us that at the time the declaration for Senator was made, petitioner did Llamanzares, respondent; stating that:
not have as yet any intention to vie for the Presidency in 2016 and that
the general public was never made aware by petitioner, by word or
WHEREFORE, premises considered, the Commission RESOLVED, as
action, that she would run for President in 2016. Presidential candidacy
it hereby RESOLVES, to GRANT the petitions and cancel the Certificate
has a length-of-residence different from that of a senatorial candidacy.
of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
There are facts of residence other than that which was mentioned in the
LLAMANZARES for the elective position of President of the Republic of
COC for Senator. Such other facts of residence have never been proven
the Philippines in connection with the 9 May 2016 Synchronized Local
to be false, and these, to repeat include:
and National Elections.
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
3. dated 23 December 2015 of the COMELEC En Banc, upholding the
husband however stayed in the USA to finish pending projects and
1 December 2015 Resolution of the Second Division stating that:
arrange the sale of their family home.
WHEREFORE, premises considered, the Commission RESOLVED, as
Meanwhile [petitioner] and her children lived with her mother in San Juan
it hereby RESOLVES, to DENY the Verified Motion for Reconsideration
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005
of SENATOR MARY GRACE NATIVIDAD SONORA POE-
and Hanna in Assumption College in Makati City in 2005. Anika was
LLAMANZARES. The Resolution dated 11 December 2015 of the
enrolled in Learning Connection in San Juan in 2007, when she was
Commission First Division is AFFIRMED.
already old enough to go to school.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the
In the second half of 2005, [petitioner] and her husband acquired Unit
11 December 2015 Resolution of the First Division.
7F of One Wilson Place Condominium in San Juan. [Petitioner] and her
family lived in Unit 7F until the construction of their family home in
Corinthian Hills was completed. are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED
QUALIFIED to be a candidate for President in the National and Local
Sometime in the second half of 2005, [petitioner's] mother discovered
Elections of 9 May 2016.
that her former lawyer who handled [petitioner's] adoption in 1974 failed
to secure from the Office of the Civil Registrar of Iloilo a new Certificate
of Live Birth indicating [petitioner's] new name and stating that her SO ORDERED.
parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to

supervise the disposal of some of the family's remaining household IMELDA ROMUALDEZ-MARCOS, petitioner,
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March vs.
2006. COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
In late March 2006, [petitioner's] husband informed the United States
Postal Service of the family's abandonment of their address in the US.
KAPUNAN, J.:
The family home in the US was sole on 27 April 2006.
A constitutional provision should be construed as to give it effective
In April 2006, [petitioner's] husband resigned from his work in the US. operation and suppress the mischief at which it is aimed. 1 The 1987
He returned to the Philippines on 4 May 2006 and began working for a Constitution mandates that an aspirant for election to the House of
Philippine company in July 2006. Representatives be "a registered voter in the district in which he shall be

21
elected, and a resident thereof for a period of not less than one year
immediately preceding the election."2 The mischief which this provision
— reproduced verbatim from the 1973 Constitution — seeks to prevent
is the possibility of a "stranger or newcomer unacquainted with the
conditions and needs of a community and not identified with the latter,
from an elective office to serve that community."3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy
for the position of Representative of the First District of Leyte with the
Provincial Election Supervisor on March 8, 1995, providing the following
information in item no. 8:4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:
__________ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a candidate
for the same position, filed a "Petition for Cancellation and
Disqualification"5 with the Commission on Elections alleging that
petitioner did not meet the constitutional requirement for residency. In
his petition, private respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for candidates for the
House of Representatives on the evidence of declarations made by her
in Voter Registration Record 94-No. 33497726 and in her Certificate of
Candidacy. He prayed that "an order be issued declaring (petitioner)
disqualified and canceling the certificate of candidacy."7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of
Candidacy, changing the entry "seven" months to "since childhood" in
item no. 8 of the amended certificate.8 On the same day, the Provincial
Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned
Certificate of Candidacy on the ground that it is filed out of
time, the deadline for the filing of the same having already
lapsed on March 20, 1995. The Corrected/Amended
Certificate of Candidacy should have been filed on or before
the March 20, 1995 deadline.9
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No.
95-009 was likewise filed with the head office on the same day. In said
Answer, petitioner averred that the entry of the word "seven" in her
original Certificate of Candidacy was the result of an "honest
misinterpretation" 10 which she sought to rectify by adding the words
"since childhood" in her Amended/Corrected Certificate of Candidacy
and that "she has always maintained Tacloban City as her domicile or
residence. 11 Impugning respondent's motive in filing the petition seeking
her disqualification, she noted that:
When respondent (petitioner herein) announced that she was
intending to register as a voter in Tacloban City and run for
Congress in the First District of Leyte, petitioner immediately
opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot,
Tolosa, Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual residence
therein, petitioner filed a petition with the COMELEC to
transfer the town of Tolosa from the First District to the Second
District and pursued such a move up to the Supreme Court,
his purpose being to remove respondent as petitioner's
opponent in the congressional election in the First District. He
also filed a bill, along with other Leyte Congressmen, seeking
the creation of another legislative district to remove the town
of Tolosa out of the First District, to achieve his purpose.
However, such bill did not pass the Senate. Having failed on
such moves, petitioner now filed the instant petition for the
same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections
(COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding
private respondent's Petition for Disqualification in SPA 95-009
meritorious; 2) striking off petitioner's Corrected/Amended Certificate of
Candidacy of March 31, 1995; and 3) canceling her original Certificate
of Candidacy. 14 Dealing with two primary issues, namely, the validity of
amending the original Certificate of Candidacy after the lapse of the
deadline for filing certificates of candidacy, and petitioner's compliance
with the one year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer that
the printed word "Seven" (months) was a result of an "honest
misinterpretation or honest mistake" on her part and,
therefore, an amendment should subsequently be allowed.
She averred that she thought that what was asked was her
"actual and physical" presence in Tolosa and not residence of
origin or domicile in the First Legislative District, to which she
could have responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban City, a
component of the First District, to which she always intended
to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by alleging that
she has been a resident of the First Legislative District of
Leyte since childhood, although she only became a resident
of the Municipality of Tolosa for seven months. She asserts
that she has always been a resident of Tacloban City, a
component of the First District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note that prior to her
registration in Tolosa, respondent announced that she would
be registering in Tacloban City so that she can be a candidate
for the District. However, this intention was rebuffed when
petitioner wrote the Election Officer of Tacloban not to allow
respondent since she is a resident of Tolosa and not
Tacloban. She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the Certificate
of Candidacy only asks for RESIDENCE. Since on the basis
of her Answer, she was quite aware of "residence of origin"
which she interprets to be Tacloban City, it is curious why she
did not cite Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her actual
and physical presence in Tolosa is not easy to believe
because there is none in the question that insinuates about
Tolosa. In fact, item no. 8 in the Certificate of Candidacy
speaks clearly of "Residency in the CONSTITUENCY where I
seek to be elected immediately preceding the election." Thus,
the explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest
mistake or misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an
amendment may be made, she cited the case of Alialy
v. COMELEC (2 SCRA 957). The reliance of respondent on
the case of Alialy is misplaced. The case only applies to the
"inconsequential deviations which cannot affect the result of
the election, or deviations from provisions intended primarily
to secure timely and orderly conduct of elections." The
Supreme Court in that case considered the amendment only
as a matter of form. But in the instant case, the amendment
cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years
of residence in the place where respondent seeks to be
elected is a substantial matter which determines her
qualification as a candidacy, specially those intended to
suppress, accurate material representation in the original
certificate which adversely affects the filer. To admit the
amended certificate is to condone the evils brought by the
shifting minds of manipulating candidate, of the detriment of
the integrity of the election.
22
Moreover, to allow respondent to change the seven (7) month
period of her residency in order to prolong it by claiming it was
"since childhood" is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7
months residency the respondent indicated in her certificate
of candidacy can be gleaned from her entry in her Voter's
Registration Record accomplished on January 28, 1995 which
reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for
6 months at the time of the said registration (Annex A,
Petition). Said accuracy is further buttressed by her letter to
the election officer of San Juan, Metro Manila, dated August
24, 1994, requesting for the cancellation of her registration in
the Permanent List of Voters thereat so that she can be re-
registered or transferred to Brgy. Olot, Tolosa, Leyte. The
dates of these three (3) different documents show the
respondent's consistent conviction that she has transferred
her residence to Olot, Tolosa, Leyte from Metro Manila only
for such limited period of time, starting in the last week of
August 1994 which on March 8, 1995 will only sum up to 7
months. The Commission, therefore, cannot be persuaded to
believe in the respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate
of Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing
discussion, it is clear that respondent has not complied with
the one year residency requirement of the Constitution.
In election cases, the term "residence" has always been
considered as synonymous with "domicile" which imports not
only the intention to reside in a fixed place but also personal
presence in-that place, coupled with conduct indicative of
such intention. Domicile denotes a fixed permanent residence
to which when absent for business or pleasure, or for like
reasons, one intends to return. (Perfecto Faypon vs. Eliseo
Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226
SCRA 408). In respondent's case, when she returned to the
Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a
resident of the First District since childhood is nothing more
than to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face
of the facts admitted by the respondent in her affidavit. Except
for the time that she studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila.
In 1959, after her husband was elected Senator, she lived and
resided in San Juan, Metro Manila where she was a registered
voter. In 1965, she lived in San Miguel, Manila where she was
again a registered voter. In 1978, she served as member of
the Batasang Pambansa as the representative of the City of
Manila and later on served as the Governor of Metro Manila.
She could not have served these positions if she had not been
a resident of the City of Manila. Furthermore, when she filed
her certificate of candidacy for the office of the President in
1992, she claimed to be a resident of San Juan, Metro Manila.
As a matter of fact on August 24, 1994, respondent wrote a
letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the
permanent list of voters that she may be re-registered or
transferred to Barangay Olot, Tolosa, Leyte. These facts
manifest that she could not have been a resident of Tacloban
City since childhood up to the time she filed her certificate of
candidacy because she became a resident of many places,
including Metro Manila. This debunks her claim that prior to
her residence in Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention
to make Tacloban her domicile. She registered as a voter in
different places and on several occasions declared that she
was a resident of Manila. Although she spent her school days
in Tacloban, she is considered to have abandoned such place
when she chose to stay and reside in other different places.
In the case of Romualdez vs. RTC (226 SCRA 408) the Court
explained how one acquires a new domicile by choice. There
must concur: (1) residence or bodily presence in the new
locality; (2) intention to remain there; and (3) intention to
abandon the old domicile. In other words there must basically
be animus manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in Manila,
coupled with her intention to stay there by registering as a
voter there and expressly declaring that she is a resident of
that place, she is deemed to have abandoned Tacloban City,
where she spent her childhood and school days, as her place
of domicile.
Pure intention to reside in that place is not sufficient, there
must likewise be conduct indicative of such intention.
Respondent's statements to the effect that she has always
intended to return to Tacloban, without the accompanying
conduct to prove that intention, is not conclusive of her choice
of residence. Respondent has not presented any evidence to
show that her conduct, one year prior the election, showed
intention to reside in Tacloban. Worse, what was evident was
that prior to her residence in Tolosa, she had been a resident
of Manila.
It is evident from these circumstances that she was not a
resident of the First District of Leyte "since childhood."
To further support the assertion that she could have not been
a resident of the First District of Leyte for more than one year,
petitioner correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter
Registration Record that she resided in the municipality of
Tolosa for a period of six months. This may be
inconsequential as argued by the respondent since it refers
only to her residence in Tolosa, Leyte. But her failure to prove
that she was a resident of the First District of Leyte prior to her
residence in Tolosa leaves nothing but a convincing proof that
she had been a resident of the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the
COMELEC en banc denied petitioner's Motion for Reconsideration 16 of
the April 24, 1995 Resolution declaring her not qualified to run for the
position of Member of the House of Representatives for the First
Legislative District of Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the
Commission RESOLVED to DENY it, no new substantial
matters having been raised therein to warrant re-examination
of the resolution granting the petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show that she
obtained the highest number of votes in the congressional elections in
the First District of Leyte. On the same day, however, the COMELEC
reversed itself and issued a second Resolution directing that the
proclamation of petitioner be suspended in the event that she obtains
the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that
she was the overwhelming winner of the elections for the congressional
seat in the First District of Leyte held May 8, 1995 based on the canvass
completed by the Provincial Board of Canvassers on May 14, 1995.
Petitioner alleged that the canvass showed that she obtained a total of
70,471 votes compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.
23
On account of the Resolutions disqualifying petitioner from running for
the congressional seat of the First District of Leyte and the public
respondent's Resolution suspending her proclamation, petitioner comes
to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for
election purposes, of the First District of Leyte for a
period of one year at the time of the May 9, 1995
elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised
its jurisdiction in disqualifying petitioner outside the
period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said
Code.
b) After the Elections
Whether or not the House of Representatives
Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals
a startling confusion in the application of settled concepts of "Domicile"
and "Residence" in election law. While the COMELEC seems to be in
agreement with the general proposition that for the purposes of election
law, residence is synonymous with domicile, the Resolution reveals a
tendency to substitute or mistake the concept of domicile for actual
residence, a conception not intended for the purpose of determining a
candidate's qualifications for election to the House of Representatives
as required by the 1987 Constitution. As it were, residence, for the
purpose of meeting the qualification for an elective position, has a settled
meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong vs. Republic 20 this court took
the concept of domicile to mean an individual's "permanent home", "a
place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense
that they disclose intent." 21Based on the foregoing, domicile includes
the twin elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in
a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business,
or health. If a person's intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is
residence. 22 It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only have
a single domicile, unless, for various reasons, he successfully abandons
his domicile in favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and residence.
"Residence" is used to indicate a place of abode, whether
permanent or temporary; "domicile" denotes a fixed
permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile,
but domicile is residence coupled with the intention to remain
for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places
of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no
length of residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally emerged
is the fact that residence for election purposes is used synonymously
with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in
a fixed place, but also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated
the same doctrine in a case involving the qualifications of the respondent
therein to the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino, 27 held that the absence from residence to
pursue studies or practice a profession or registration as a voter other
than in the place where one is elected does not constitute loss of
residence. 28 So settled is the concept (of domicile) in our election law
that in these and other election law cases, this Court has stated that the
mere absence of an individual from his permanent residence without the
intention to abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification
for certain elective positions have placed beyond doubt the principle that
when the Constitution speaks of "residence" in election law, it actually
means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the
1971 Constitutional Convention, there was an attempt to
require residence in the place not less than one year
immediately preceding the day of the elections. So my
question is: What is the Committee's concept of residence of
a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular
members of the National Assembly are concerned, the
proposed section merely provides, among others, "and a
resident thereof", that is, in the district for a period of not less
than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given
to it was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page
2. I think Commissioner Nolledo has raised the same point
that "resident" has been interpreted at times as a matter of
intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at
the proper time to go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty
especially considering that a provision in the Constitution in
the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original
concept that it should be by domicile and not physical
residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this
Court concluded that the framers of the 1987 Constitution obviously
adhered to the definition given to the term residence in election law,
regarding it as having the same meaning as domicile. 32
24
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated by
Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the
questioned entry in petitioner's Certificate of Candidacy stating her
residence in the First Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not and individual
has satisfied the constitution's residency qualification requirement. The
said statement becomes material only when there is or appears to be a
deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for
a candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest
mistake in jotting the word "seven" in the space provided for the
residency qualification requirement. The circumstances leading to her
filing the questioned entry obviously resulted in the subsequent
confusion which prompted petitioner to write down the period of her
actual stay in Tolosa, Leyte instead of her period of residence in the First
district, which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a different
interpretation. For instance, when herein petitioner announced that she
would be registering in Tacloban City to make her eligible to run in the
First District, private respondent Montejo opposed the same, claiming
that petitioner was a resident of Tolosa, not Tacloban City. Petitioner
then registered in her place of actual residence in the First District, which
is Tolosa, Leyte, a fact which she subsequently noted down in her
Certificate of Candidacy. A close look at said certificate would reveal the
possible source of the confusion: the entry for residence (Item No. 7) is
followed immediately by the entry for residence in the constituency
where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa,
Leyte
POST OFFICE ADDRESS FOR ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK
TO
BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of
actual residence in Leyte instead of petitioner's claimed domicile, it
appears that petitioner had jotted down her period of stay in her legal
residence or domicile. The juxtaposition of entries in Item 7 and Item 8
— the first requiring actual residence and the second requiring domicile
— coupled with the circumstances surrounding petitioner's registration
as a voter in Tolosa obviously led to her writing down an unintended
entry for which she could be disqualified. This honest mistake should
not, however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing than a
mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly
be in the First District of Leyte, the Second Division of the COMELEC,
in its assailed Resolution of April 24,1995 maintains that "except for the
time when (petitioner) studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila." The
Resolution additionally cites certain facts as indicative of the fact that
petitioner's domicile ought to be any place where she lived in the last
few decades except Tacloban, Leyte. First, according to the Resolution,
petitioner, in 1959, resided in San Juan, Metro Manila where she was
also registered voter. Then, in 1965, following the election of her
husband to the Philippine presidency, she lived in San Miguel, Manila
where she as a voter. In 1978 and thereafter, she served as a member
of the Batasang Pambansa and Governor of Metro Manila. "She could
not, have served these positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose
his domicile even if he has lived and maintained residences in different
places. Residence, it bears repeating, implies a factual relationship to a
given place for various purposes. The absence from legal residence or
domicile to pursue a profession, to study or to do other things of a
temporary or semi-permanent nature does not constitute loss of
residence. Thus, the assertion by the COMELEC that "she could not
have been a resident of Tacloban City since childhood up to the time
she filed her certificate of candidacy because she became a resident of
many places" flies in the face of settled jurisprudence in which this Court
carefully made distinctions between (actual) residence and domicile for
election law purposes. In Larena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who
has his own house wherein he lives with his family in a
municipality without having ever had the intention of
abandoning it, and without having lived either alone or with his
family in another municipality, has his residence in the former
municipality, notwithstanding his having registered as an
elector in the other municipality in question and having been
a candidate for various insular and provincial positions, stating
every time that he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of
course includes study in other places, practice of his
avocation, or engaging in business. When an election is to be
held, the citizen who left his birthplace to improve his lot may
desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he
may not absent himself from his professional or business
activities; so there he registers himself as voter as he has the
qualifications to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the
government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile
or residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other
than his residence of origin has not been deemed sufficient to
constitute abandonment or loss of such residence. It finds
justification in the natural desire and longing of every person
to return to his place of birth. This strong feeling of attachment
to the place of one's birth must be overcome by positive proof
of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible to run
for the position of Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's various places of
(actual) residence, not her domicile. In doing so, it not only ignored
settled jurisprudence on residence in election law and the deliberations
of the constitutional commission but also the provisions of the Omnibus
Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim from the
COMELEC's Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years
old, she established her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy Infant Academy in
Tacloban from 1938 to 1949 when she graduated from high
school. She pursued her college studies in St. Paul's College,
now Divine Word University in Tacloban, where she earned
her degree in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of Representatives. In
1954, she married ex-President Ferdinand E. Marcos when
he was still a congressman of Ilocos Norte and registered
there as a voter. When her husband was elected Senator of
the Republic in 1959, she and her husband lived together in
San Juan, Rizal where she registered as a voter. In 1965,
25
 when her husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang Palace and
registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were
abducted and kidnapped to Honolulu, Hawaii. In November
1991, she came home to Manila. In 1992, respondent ran for
election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a
resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what
is inescapable is that petitioner held various residences for different
purposes during the last four decades. None of these purposes
unequivocally point to an intention to abandon her domicile of origin in
Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a
minor she naturally followed the domicile of her parents. She grew up in
Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons. Even
during her husband's presidency, at the height of the Marcos Regime's
powers, petitioner kept her close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-
publicized projects for the benefit of her province and hometown, and
establishing a political power base where her siblings and close relatives
held positions of power either through the ballot or by appointment,
always with either her influence or consent. These well-publicized ties to
her domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country. Either they were entirely ignored
in the COMELEC'S Resolutions, or the majority of the COMELEC did
not know what the rest of the country always knew: the fact of petitioner's
domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not
petitioner's domicile of origin because she did not live there until she was
eight years old. He avers that after leaving the place in 1952, she
"abandoned her residency (sic) therein for many years and . . . (could
not) re-establish her domicile in said place by merely expressing her
intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once
acquired is retained until a new one is gained, it follows that in spite of
the fact of petitioner's being born in Manila, Tacloban, Leyte was her
domicile of origin by operation of law. This domicile was not established
only when her father brought his family back to Leyte contrary to private
respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate: 37
1. An actual removal or an actual change of
domicile;
2. A bona fide intention of abandoning the former
place of residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires
an actual and deliberate abandonment, and one cannot have two legal
residences at the same time. 38 In the case at bench, the evidence
adduced by private respondent plainly lacks the degree of
persuasiveness required to convince this court that an abandonment of
domicile of origin in favor of a domicile of choice indeed occurred. To
effect an abandonment requires the voluntary act of relinquishing
petitioner's former domicile with an intent to supplant the former domicile
with one of her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her
domicile of origin by operation of law as a result of her marriage to the
late President Ferdinand E. Marcos in 1952. For there is a clearly
established distinction between the Civil Code concepts of "domicile"
and "residence." 39 The presumption that the wife automatically gains
the husband's domicile by operation of law upon marriage cannot be
inferred from the use of the term "residence" in Article 110 of the Civil
Code because the Civil Code is one area where the two concepts are
well delineated. Dr. Arturo Tolentino, writing on this specific area
explains:
In the Civil Code, there is an obvious difference
between domicile and residence. Both terms imply
relations between a person and a place; but in
residence, the relation is one of fact while in
domicile it is legal or juridical, independent of the
necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the residence of
the family. But the court may exempt the wife from
living with the husband if he should live abroad
unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of
domicile or residence as they affect the female spouse upon marriage
yields nothing which would suggest that the female spouse automatically
loses her domicile of origin in favor of the husband's choice of residence
upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code
of 1889 which states:
La mujer esta obligada a seguir a su marido donde
quiera que fije su residencia. Los Tribunales, sin
embargo, podran con justa causa eximirla de esta
obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the
aforequoted article, which means wherever (the husband) wishes to
establish residence. This part of the article clearly contemplates only
actual residence because it refers to a positive act of fixing a family home
or residence. Moreover, this interpretation is further strengthened by the
phrase "cuando el marido translade su residencia" in the same provision
which means, "when the husband shall transfer his residence," referring
to another positive act of relocating the family to another home or place
of actual residence. The article obviously cannot be understood to refer
to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often as the
husband may deem fit to move his family, a circumstance more
consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with
the intention of the law to strengthen and unify the family, recognizing
the fact that the husband and the wife bring into the marriage different
domiciles (of origin). This difference could, for the sake of family unity,
be reconciled only by allowing the husband to fix a single place of actual
residence.
Very significantly, Article 110 of the Civil Code is found under Title V
under the heading: RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109
which obliges the husband and wife to live together, thus:
Art. 109. — The husband and wife are obligated to
live together, observe mutual respect and fidelity
and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the
couple has many residences (as in the case of the petitioner). If the
husband has to stay in or transfer to any one of their residences, the wife
should necessarily be with him in order that they may "live together."
Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not
to "residence." Otherwise, we shall be faced with a situation where the
wife is left in the domicile while the husband, for professional or other
26
reasons, stays in one of their (various) residences. As Dr. Tolentino
further explains:
Residence and Domicile — Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a question
of some difficulty, and the ultimate decision must be
made from a consideration of the purpose and
intent with which the word is used. Sometimes they
are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring
to the physical presence of a person in a place. A
person can have two or more residences, such as
a country residence and a city residence.
Residence is acquired by living in place; on the
other hand, domicile can exist without actually living
in the place. The important thing for domicile is that,
once residence has been established in one place,
there be an intention to stay there permanently,
even if residence is also established in some other
place. 41
In fact, even the matter of a common residence between the husband
and the wife during the marriage is not an iron-clad principle; In cases
applying the Civil Code on the question of a common matrimonial
residence, our jurisprudence has recognized certain situations 42 where
the spouses could not be compelled to live with each other such that the
wife is either allowed to maintain a residence different from that of her
husband or, for obviously practical reasons, revert to her original
domicile (apart from being allowed to opt for a new one). In De la Vina
vs.Villareal 43 this Court held that "[a] married woman may acquire a
residence or domicile separate from that of her husband during the
existence of the marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either to obtain new
residence or to choose a new domicile in such an event. In instances
where the wife actually opts, .under the Civil Code, to live separately
from her husband either by taking new residence or reverting to her
domicile of origin, the Court has held that the wife could not be
compelled to live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of
the spouses to cohabit with, and render conjugal
rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we
are disinclined to sanction the doctrine that an
order, enforcible (sic) by process of contempt, may
be entered to compel the restitution of the purely
personal right of consortium. At best such an order
can be effective for no other purpose than to compel
the spouses to live under the same roof; and he
experience of those countries where the courts of
justice have assumed to compel the cohabitation of
married people shows that the policy of the practice
is extremely questionable. Thus in England,
formerly the Ecclesiastical Court entertained suits
for the restitution of conjugal rights at the instance
of either husband or wife; and if the facts were
found to warrant it, that court would make a
mandatory decree, enforceable by process of
contempt in case of disobedience, requiring the
delinquent party to live with the other and render
conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to
enforce such orders, and in Weldon v. Weldon (9
P.D. 52), decided in 1883, Sir James Hannen,
President in the Probate, Divorce and Admiralty
Division of the High Court of Justice, expressed his
regret that the English law on the subject was not
the same as that which prevailed in Scotland, where
a decree of adherence, equivalent to the decree for
the restitution of conjugal rights in England, could
be obtained by the injured spouse, but could not be
enforced by imprisonment. Accordingly, in
obedience to the growing sentiment against the
practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may
serve in appropriate cases as the basis of an order
for the periodical payment of a stipend in the
character of alimony.
In the voluminous jurisprudence of the United
States, only one court, so far as we can discover,
has ever attempted to make a preemptory order
requiring one of the spouses to live with the other;
and that was in a case where a wife was ordered to
follow and live with her husband, who had changed
his domicile to the City of New Orleans. The
decision referred to (Bahn v. Darby, 36 La. Ann.,
70) was based on a provision of the Civil Code of
Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the
doctrine evidently has not been fruitful even in the
State of Louisiana. In other states of the American
Union the idea of enforcing cohabitation by process
of contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme
Court of Spain appears to have affirmed an order of
the Audiencia Territorial de Valladolid requiring a
wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a
particular disposition of certain money and effects
then in her possession and to deliver to her
husband, as administrator of the ganancial
property, all income, rents, and interest which might
accrue to her from the property which she had
brought to the marriage. (113 Jur. Civ., pp. 1, 11)
But it does not appear that this order for the return
of the wife to the marital domicile was sanctioned
by any other penalty than the consequences that
would be visited upon her in respect to the use and
control of her property; and it does not appear that
her disobedience to that order would necessarily
have been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obliged — by virtue of Article 110 of the
Civil Code — to follow her husband's actual place of residence fixed by
him. The problem here is that at that time, Mr. Marcos had several places
of residence, among which were San Juan, Rizal and Batac, Ilocos
Norte. There is no showing which of these places Mr. Marcos did fix as
his family's residence. But assuming that Mr. Marcos had fixed any of
these places as the conjugal residence, what petitioner gained upon
marriage was actual residence. She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile"
appears to have been incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of 1950, into the New
Family Code. To underscore the difference between the intentions of the
Civil Code and the Family Code drafters, the term residence has been
supplanted by the term domicile in an entirely new provision (Art. 69)
distinctly different in meaning and spirit from that found in Article 110.
The provision recognizes revolutionary changes in the concept of
women's rights in the intervening years by making the choice of domicile
a product of mutual agreement between the spouses. 46
Without as much belaboring the point, the term residence may mean
one thing in civil law (or under the Civil Code) and quite another thing in
political law. What stands clear is that insofar as the Civil Code is
concerned-affecting the rights and obligations of husband and wife —
27
the term residence should only be interpreted to mean "actual
residence." The inescapable conclusion derived from this unambiguous
civil law delineation therefore, is that when petitioner married the former
President in 1954, she kept her domicile of origin and merely gained a
new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new
"domicile" after her marriage and only acquired a right to choose a new
one after her husband died, petitioner's acts following her return to the
country clearly indicate that she not only impliedly but expressly chose
her domicile of origin (assuming this was lost by operation of law) as her
domicile. This "choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's permission
to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot,
Leyte. . . to make them livable for the Marcos family to have a home in
our homeland." 47 Furthermore, petitioner obtained her residence
certificate in 1992 in Tacloban, Leyte, while living in her brother's house,
an act which supports the domiciliary intention clearly manifested in her
letters to the PCGG Chairman. She could not have gone straight to her
home in San Juan, as it was in a state of disrepair, having been
previously looted by vandals. Her "homes" and "residences" following
her arrival in various parts of Metro Manila merely qualified as temporary
or "actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse
either reverts to her domicile of origin or chooses a new one during the
subsistence of the marriage, it would be highly illogical for us to assume
that she cannot regain her original domicile upon the death of her
husband absent a positive act of selecting a new one where situations
exist within the subsistence of the marriage itself where the wife gains a
domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the facts
established by the parties weigh heavily in favor of a conclusion
supporting petitioner's claim of legal residence or domicile in the First
District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already
lapsed considering that the assailed resolutions were rendered on April
24, 1995, fourteen (14) days before the election in violation of Section
78 of the Omnibus Election Code. 48 Moreover, petitioner contends that
it is the House of Representatives Electoral Tribunal and not the
COMELEC which has jurisdiction over the election of members of the
House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within
a specified time is generally construed to be merely directory, 49 "so that
non-compliance with them does not invalidate the judgment on the
theory that if the statute had intended such result it would have clearly
indicated it." 50 The difference between a mandatory and a directory
provision is often made on grounds of necessity. Adopting the same view
held by several American authorities, this court in Marcelino
vs. Cruz held that: 51
The difference between a mandatory and directory provision
is often determined on grounds of expediency, the reason
being that less injury results to the general public by
disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of
a statute containing a limitation of thirty (30) days within which
a decree may be entered without the consent of counsel, it
was held that "the statutory provisions which may be thus
departed from with impunity, without affecting the validity of
statutory proceedings, are usually those which relate to the
mode or time of doing that which is essential to effect the aim
and purpose of the Legislature or some incident of the
essential act." Thus, in said case, the statute under
examination was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have
abstained from rendering a decision after the period stated in the
Omnibus Election Code because it lacked jurisdiction, lies in the fact that
our courts and other quasi-judicial bodies would then refuse to render
judgments merely on the ground of having failed to reach a decision
within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in
relation to Section 78 of B.P. 881, 52 it is evident that the respondent
Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the
elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's qualifications
after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction
as the sole judge of all contests relating to the elections, returns and
qualifications of members of Congress begins only after a candidate has
become a member of the House of Representatives. 53 Petitioner not
being a member of the House of Representatives, it is obvious that the
HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987
Constitution for us to either to ignore or deliberately make distinctions in
law solely on the basis of the personality of a petitioner in a case.
Obviously a distinction was made on such a ground here. Surely, many
established principles of law, even of election laws were flouted for the
sake perpetuating power during the pre-EDSA regime. We renege on
these sacred ideals, including the meaning and spirit of EDSA ourselves
bending established principles of principles of law to deny an individual
what he or she justly deserves in law. Moreover, in doing so, we
condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed
to order the Provincial Board of Canvassers to proclaim petitioner as the
duly elected Representative of the First District of Leyte.
SO ORDERED.
JUAN DOMINO, petitioner,
vs.
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR.,
EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and
DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-
SOLON, intervenor.
DAVIDE, JR., CJ.:
Challenged in this case for certiorari with a prayer for preliminary
injunction are the Resolution of 6 May 19981 of the Second Division of
the Commission on Elections (hereafter COMELEC), declaring
petitioner Juan Domino (hereafter DOMINO) disqualified as candidate
for representative of the Lone Legislative District of the Province of
Sarangani in the 11 May 1998 elections, and the Decision of 29 May
19982 of the COMELEC en banc denying DOMINO's motion for
reconsideration.
The antecedents are not disputed.1âwphi1.nêt
On 25 March 1998, DOMINO filed his certificate of candidacy for the
position of Representative of the Lone Legislative District of the Province
of Sarangani indicating in item nine (9) of his certificate that he had
28
resided in the constituency where he seeks to be elected for one (1) year
and two (2) months immediately preceding the election.3
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy
B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr.,
fied with the COMELEC a Petition to Deny Due Course to or Cancel
Certificate of Candidacy, which was docketed as SPA No. 98-022 and
assigned to the Second Division of the COMELEC. Private respondents
alleged that DOMINO, contrary to his declaration in the certificate of
candidacy, is not a resident, much less a registered voter, of the province
of Sarangani where he seeks election. To substantiate their allegations,
private respondents presented the following evidence:
1. Annex "A" — the Certificate of Candidacy of respondent for
the position of Congressman of the Lone District of the
Province of Sarangani filed with the Office of the Provincial
Election Supervisor of Sarangani on March 25, 1998, where
in item 4 thereof he wrote his date of birth as December 5,
1953; in item 9, he claims he have resided in the constituency
where he seeks election for one (1) year and two (2) months;
and, in item 10, that he is registered voter of Precinct No. 14A-
1, Barangay Poblacion, Alabel, Sarangani;
2. Annex "B" — Voter's Registration Record with SN
31326504 dated June 22, 1997 indicating respondent's
registration at Precinct No. 4400-A, Old Balara, Quezon City;
3. Annex "C" — Respondent's Community Tax Certificate No.
11132214C dated January 15, 1997;
4. Annex "D" — Certified true copy of the letter of Herson D.
Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel,
Sarangani, dated February 26, 1998, addressed to Mr.
Conrado G. Butil, which reads:
In connection with your letter of even date, we are furnishing
you herewith certified xerox copy of the triplicate copy of
COMMUNITY TAX CERTIFICATE NO. 11132214C in the
name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of
the same stub was issued to Carlito Engcong on September
5, 1997, while Certificate No. 11132213C was also issued to
Mr. Juan Domino but was cancelled and serial no. 11132215C
was issued in the name of Marianita Letigio on September 8,
1997.
5. Annex "E" — The triplicate copy of the Community Tax
Certificate No. 11132214C in the name of Juan Domino dated
September 5, 1997;
6. Annex "F" — Copy of the letter of Provincial Treasurer
Lourdes P. Riego dated March 2, 1998 addressed to Mr.
Herson D. Dema-ala, Deputy Provincial Treasurer and
Municipal Treasurer of Alabel, Sarangani, which states:
For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate containing
Nos. 11132201C-11132250C issued to you on June 13, 1997
and paid under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7. Annex "G" — Certificate of Candidacy of respondent for the
position of Congressman in the 3rd District of Quezon City for
the 1995 elections filed with the Office of the Regional Election
Director, National Capital Region, on March 17, 1995, where,
in item 4 thereof, he wrote his birth date as December 22,
1953; in item 8 thereof his "residence in the constituency
where I seek to be elected immediately preceding the
election" as 3 years and 5 months; and, in item 9, that he is a
registered voter of Precinct No. 182, Barangay Balara,
Quezon City;
8. Annex "H" — a copy of the APPLICATION FOR
TRANSFER OF REGISTRATION RECORDS DUE TO
CHANGE OF RESIDENCE of respondent dated August 30,
1997 addressed to and received by Election Officer Mantil
Alim, Alabel, Sarangani, on September 22, 1997, stating
among others, that "[T]he undersigned's previous residence is
at 24 Bonifacio Street, Ayala Heights, Quezon City, III District,
Quezon City; wherein he is a registered voter" and "that for
business and residence purposes, the undersigned has
transferred and conducts his business and reside at Barangay
Poblacion, Alabel, Province of Sarangani prior to this
application;"
9. Annex "I" — Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF]
PREVIOUS REGISTRATION of respondent subscribed and
sworn to on 22 October 1997 before Election Officer Mantil
Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-
year residence requirement and that he has been residing in Sarangani
since January 1997. In support of the said contention, DOMINO
presented before the COMELEC the following exhibits, to wit:
1. Annex "1" — Copy of the Contract of Lease between Nora
Dacaldacal as Lessor and Administrator of the properties of
deceased spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15, 1997,
subscribed and sworn to before Notary Public Johnny P.
Landero;
2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate
with Absolute Deed of sale executed by and between the heirs
of deceased spouses Maximo and Remedios Dacaldacal,
namely: Maria Lourdes, Jupiter and Beberlie and the
respondent on November 4, 1997, subscribed and sworn to
before Notary Public Jose A. Alegario;
3. Annex "3" — True Carbon Xerox copy of the Decision dated
January 19, 1998, of the Metropolitan Trial Court of Metro
Manila, Branch 35, Quezon City, in Election Case NO. 725
captioned as "In the Matter of the Petition for the Exclusion
from the List of voters of Precinct No. 4400-A Brgy. Old
Balara, Quezon City, Spouses Juan and Zorayda Domino,
Petitioners, -versus- Elmer M. Kayanan, Election Officer,
Quezon City, District III, and the Board of Election Inspectors
of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
1. Declaring the registration of petitioners
as voters of Precinct No. 4400-A,
Barangay Old Balara, in District III
Quezon City as completely erroneous as
petitioners were no longer residents of
Quezon City but of Alabel, Sarangani
where they have been residing since
December 1996;
2. Declaring this erroneous registration of
petitioners in Quezon City as done in
good faith due to an honest mistake
caused by circumstances beyond their
control and without any fault of
petitioners;
3. Approving the transfer of registration of
voters of petitioners from Precint No.
4400-A of Barangay Old Balara, Quezon
City to Precinct No. 14A1 of Barangay
Poblacion of Alabel, Sarangani; and
4. Ordering the respondents to
immediately transfer and forward all the
election/voter's registration records of the
petitioners in Quezon City to the Election
29
 Officer, the Election Registration Board
and other Comelec Offices of Alabel,
Sarangani where the petitioners are
obviously qualified to excercise their
respective rights of suffrage.
4. Annex "4" — Copy of the Application for Transfer of
Registration Records due to Change of Residence addressed
to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated
August 30, 1997.
5. Annex "5" — Certified True Copy of the Notice of Approval
of Application, the roster of applications for registration
approved by the Election Registration Board on October 20,
1997, showing the spouses Juan and Zorayda Bailon Domino
listed as numbers 111 and 112 both under Precinct No. 14A1,
the last two names in the slate indicated as transferees
without VRR numbers and their application dated August 30,
1997 and September 30, 1997, respectively.
6. Annex "6" — same as Annex "5"
7. Annex "6-a" — Copy of the Sworn Application for
Cancellation of Voter's Previous Registration (Annex "I",
Petition);
8. Annex "7" — Copy of claim card in the name of respondent
showing his VRR No. 31326504 dated October 20, 1997 as a
registered voter of Precinct No. 14A1, Barangay Poblacion,
Alabel, Sarangani;
9. Annex "7-a" — Certification dated April 16, 1998, issued by
Atty. Elmer M. Kayanan, Election Officer IV, District III,
Quezon City, which reads:
This is to certify that the spouses JUAN and ZORAYDA
DOMINO are no longer registered voters of District III, Quezon
City. Their registration records (VRR) were transferred and
are now in the possession of the Election Officer of Alabel,
Sarangani.
This certification is being issued upon the request of Mr. JUAN
DOMINO.
10. Annex "8" — Affidavit of Nora Dacaldacal and Maria
Lourdes Dacaldacal stating the circumstances and incidents
detailing their alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the
uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes,
Coraminda Lomibao and Elena V. Piodos subscribed and
sworn to before Notary Public Bonifacio F. Doria, Jr., on April
18, 1998, embodying their alleged personal knowledge of
respondent's residency in Alabel, Sarangani;
12. Annex "8-e" — A certification dated April 20, 1998,
subscribed and sworn to before Notary Public Bonifacio,
containing a listing of the names of fifty-five (55) residents of
Alabel, Sarangani, declaring and certifying under oath that
they personally know the respondent as a permanent resident
of Alabel, Sarangani since January 1997 up to present;
13. Annexes "9", "9-a" and "9-b" — Copies of Individual
Income Tax Return for the year 1997, BIR form 2316 and W-
2, respectively, of respondent; and,
14. Annex "10" — The affidavit of respondent reciting the
chronology of events and circumstances leading to his
relocation to the Municipality of Alabel, Sarangani, appending
Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-
markings "G-1" and "G-2" and "H" his CTC No. 111`32214C
dated September 5, 1997, which are the same as Annexes
"1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and
"9-b" except Annex "H".5
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution
declaring DOMINO disqualified as candidate for the position of
representative of the lone district of Sarangani for lack of the one-year
residence requirement and likewise ordered the cancellation of his
certificate of candidacy, on the basis of the following findings:
What militates against respondent's claim that he has met the
residency requirement for the position sought is his own
Voter's Registration Record No. 31326504 dated June 22,
1997 [Annex "B", Petition] and his address indicated as 24
Bonifacio St., Ayala Heights, Old Balara, Quezon City. This
evidence, standing alone, negates all his protestations that he
established residence at Barangay Poblacion, Alabel,
Sarangani, as early as January 1997. It is highly improbable,
nay incredible, for respondent who previously ran for the same
position in the 3rd Legislative District of Quezon City during
the elections of 1995 to unwittingly forget the residency
requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when
respondent registered at Precinct No. 4400-A, up to and until
the day of the elections on May 11, 1998, respondent clearly
lacks the one (1) year residency requirement provided for
candidates for Member of the House of Representatives
under Section 6, Article VI of the Constitution.
All told, petitioner's evidence conspire to attest to
respondent's lack of residence in the constituency where he
seeks election and while it may be conceded that he is a
registered voter as contemplated under Section 12 of R.A.
8189, he lacks the qualification to run for the position of
Congressman for the Lone District of the Province of
Sarangani.6
On 11 May 1998, the day of the election, the COMELEC issued
Supplemental Omnibus Resolution No. 3046, ordering that the votes
cast for DOMINO be counted but to suspend the proclamation if winning,
considering that the Resolution disqualifying him as candidate had not
yet become final and executory.7
The result of the election, per Statement of Votes certified by the
Chairman of the Provincial Board of Canvassers, 8shows that DOMINO
garnered the highest number of votes over his opponents for the position
of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the
Resolution dated 6 May 1998, which was denied by the COMELEC en
banc in its decision dated 29 May 1998. Hence, the present Petition
for Certiorari with prayer for Preliminary Mandatory Injunction alleging,
in the main, that the COMELEC committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that he did not
meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary
Restraining Order, the Court directed the parties to maintain the status
quo prevailing at the time of the filing of the instant petition.9
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter
INTERVENOR), the candidate receiving the second highest number of
votes, was allowed by the Court to Intervene.10 INTERVENOR in her
Motion for Leave to Intervene and in her Comment in Intervention 11 is
asking the Court to uphold the disqualification of petitioner Juan Domino
and to proclaim her as the duly elected representative of Sarangani in
the 11 May 1998 elections.
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court
of Quezon City declaring petitioner as resident of Sarangani
and not of Quezon City is final, conclusive and binding upon
the whole world, including the Commission on Elections.
b. Whether or not petitioner herein has resided in the subject
congressional district for at least one (1) year immediately
preceding the May 11, 1998 elections; and
30
 c. Whether or not respondent COMELEC has jurisdiction over
the petition a quo for the disqualification of petitioner.12
The first issue.
The contention of DOMINO that the decision of the Metropolitan Trial
Court of Quezon City in the exclusion proceedings declaring him a
resident of the Province of Sarangani and not of Quezon City is final and
conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the
Omnibus Election Code, over a petition to deny due course to or cancel
certificate of candidacy. In the exercise of the said jurisdiction, it is within
the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of
candidacy, that will include, among others, the residence of the
candidate.
The determination of the Metropolitan Trial Court of Quezon City in the
exclusion proceedings as to the right of DOMINO to be included or
excluded from the list of voters in the precinct within its territorial
jurisdicton, does not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the issue of
compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of
voters are summary in character. Thus, the factual findings of the trial
court and its resultant conclusions in the exclusion proceedings on
matters other than the right to vote in the precinct within its territorial
jurisdiction are not conclusive upon the COMELEC. Although the court
in inclusion or exclusion proceedings may pass upon any question
necessary to decide the issue raised including the questions of
citizenship and residence of the challenged voter, the authority to order
the inclusion in or exclusion from the list of voters necessarily caries with
it the power to inquire into and settle all matters essential to the exercise
of said authority. However, except for the right to remain in the list of
voters or for being excluded therefrom for the particular election in
relation to which the proceedings had been held, a decision in an
exclusion or inclusion proceeding, even if final and unappealable, does
not acquire the nature of res judicata.13 In this sense, it does not operate
as a bar to any future action that a party may take concerning the subject
passed upon in the proceeding.14 Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political status,
nor bar subsequent proceedings on his right to be registered as a voter
in any other election.15
Thus, in Tan Cohon v. Election Registrar16 we ruled that:
. . . It is made clear that even as it is here held that the order
of the City Court in question has become final, the same does
not constitute res adjudicata as to any of the matters therein
contained. It is ridiculous to suppose that such an important
and intricate matter of citizenship may be passed upon and
determined with finality in such a summary and peremptory
proceeding as that of inclusion and exclusion of persons in the
registry list of voters. Even if the City Court had granted
appellant's petition for inclusion in the permanent list of voters
on the allegation that she is a Filipino citizen qualified to vote,
her alleged Filipino citizenship would still have been left open
to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January
decision exceeded its jurisdiction when it declared DOMINO a resident
of the Province of Sarangani, approved and ordered the transfer of his
voter's registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani.
It is not within the competence of the trial court, in an exclusion
proceedings, to declare the challenged voter a resident of another
municipality. The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the list of voters
or to declare that the challenged voter is not qualified to vote in the
precint in which he is registered, specifying the ground of the voter's
disqualification. The trial court has no power to order the change or
transfer of registration from one place of residence to another for it is the
function of the election Registration Board as provided under Section 12
of R.A. No. 8189. 17 The only effect of the decision of the lower court
excluding the challenged voter from the list of voters, is for the Election
Registration Board, upon receipt of the final decision, to remove the
voter's registration record from the corresponding book of voters, enter
the order of exclusion therein, and thereafter place the record in the
inactive file.18
Finally, the application of the rule on res judicata is unavailing. Identity
of parties, subject matter and cause of action are indispensable
requirements for the application of said doctrine. Neither herein Private
Respondents nor INTERVENOR, is a party in the exclusion
proceedings. The Petition for Exclusion was filed by DOMINDO himself
and his wife, praying that he and his wife be excluded from the Voter's
List on the ground of erroneous registration while the Petition to Deny
Due Course to or Cancel Certificate of Candidacy was filed by private
respondents against DOMINO for alleged false representation in his
certificate of candidacy. For the decision to be a basis for the dismissal
by reason of res judicata, it is essential that there must be between the
first and the second action identity of parties, identity of subject matter
and identity of causes of action.19 In the present case, the aforesaid
essential requisites are not present. In the case of Nuval v. Guray, et
al., 20 the Supreme Court in resolving a similar issue ruled that:
The question to be solved under the first assignment of error
is whether or not the judgment rendered in the case of the
petition for the exclusion of Norberto Guray's name from the
election list of Luna, is res judicata, so as to prevent the
institution and prosecution of an action in quo warranto, which
is now before us.
The procedure prescribed by section 437 of the Administrative
Code, as amended by Act No. 3387, is of a summary
character and the judgment rendered therein is not
appealable except when the petition is tried before the justice
of the peace of the capital or the circuit judge, in which case it
may be appealed to the judge of first instance, with whom said
two lower judges have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in
his dual capacity as qualified voter of the municipality of Luna,
and as a duly registered candidate for the office of president
of said municipality, against Norberto Guray as a registered
voter in the election list of said municipality. The present
proceeding of quo warranto was interposed by Gregorio
Nuval in his capacity as a registered candidate voted for the
office of municipal president of Luna, against Norberto Guray,
as an elected candidate for the same office. Therefore, there
is no identity of parties in the two cases, since it is not enough
that there be an identity of persons, but there must be an
identity of capacities in which said persons litigate. (Art. 1259
of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561;
34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the
litigation, or the litigious matter was the exclusion of Norberto
Guray as a voter from the election list of the municipality of
Luna, while in the present que warranto proceeding, the
object of the litigation, or the litigious matter is his exclusion or
expulsion from the office to which he has been elected.
Neither does there exist, then, any identity in the object of the
litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action
was that Norberto Guray had not the six months' legal
residence in the municipality of Luna to be a qualified voter
thereof, while in the present proceeding of quo warranto, the
cause of action is that Norberto Guray has not the one year's
legal residence required for eligibility to the office of municipal
president of Luna. Neither does there exist therefore, identity
of causes of action.
In order that res judicata may exist the following are
necessary: (a) identity of parties; (b) identity of things; and (c)
identity of issues (Aquino v. Director of Lands, 39 Phil. 850).
And as in the case of the petition for excluision and in the
31
 present quo warranto proceeding, as there is no identity of
parties, or of things or litigious matter, or of issues or causes
of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one
year immediately preceding the 11 May 1998 election as stated in his
certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in the law
prescribing the qualifications for suffrage and for elective office, means
the same thing as "domicile," which imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled
with conduct indicative of such intention.21 "Domicile" denotes a fixed
permanent residence to which, whenever absent for business, pleasure,
or some other reasons, one intends to return.22 "Domicile" is a question
of intention and circumstances. In the consideration of circumstances,
three rules must be borne in mind, namely: (1) that a man must have a
residence or domicile somewhere; (2) when once established it remains
until a new one is acquired; and (3) a man can have but one residence
or domicile at a time.23
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur 24 and that sometime in 1991, he acquired a new domicile of choice
at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown
by his certificate of candidacy for the position of representative of the 3rd
District of Quezon City in the May 1995 election. Petitioner is now
claiming that he had effectively abandoned his "residence" in Quezon
City and has established a new "domicile" of choice at the Province of
Sarangani.
A person's "domicile" once established is considered to continue and will
not be deemed lost until a new one is established. 25 To successfully
effect a change of domicile one must demonstrate an actual removal or
an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite acts
which correspond with the
purpose. 26 In other words, there must basically
be animus manendi coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence
at the place chosen for the new domicile must be actual. 27
It is the contention of petitioner that his actual physical presence in
Alabel, Sarangani since December 1996 was sufficiently established by
the lease of a house and lot located therein in January 1997 and by the
affidavits and certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to show
that from said date he had transferred his residence in that place. To
establish a new domicile of choice, personal presence in the place must
be coupled with conduct indicative of that intention. While "residence"
simply requires bodily presence in a given place, "domicile" requires not
only such bodily presence in that place but also a declared and probable
intent to make it one's fixed and permanent place of abode, one's
home.28
As a general rule, the principal elements of domicile, physical presence
in the locality involved and intention to adopt it as a domicile, must
concur in order to establish a new domicile. No change of domicile will
result if either of these elements is absent. Intention to acquire a domicile
without actual residence in the locality does not result in acquisition of
domicile, nor does the fact of physical presence without intention.29
The lease contract entered into sometime in January 1997, does not
adequately support a change of domicile. The lease contract may be
indicative of DOMINO's intention to reside in Sarangani but it does not
engender the kind of permanency required to prove abandonment of
one's original domicile. The mere absence of individual from his
permanent residence, no matter how long, without the intention to
abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a house and lot
located in the province of Sarangani, i.e., 15 January 1997, cannot be
used, in the absence of other circumstances, as the reckoning period of
the one-year residence requirement.
Further, Domino's lack of intention to abandon his residence in Quezon
City is further strengthened by his act of registering as voter in one of
the precincts in Quezon City. While voting is not conclusive of residence,
it does give rise to a strong presumption of residence especially in this
case where DOMINO registered in his former barangay. Exercising the
right of election franchise is a deliberate public assertion of the fact of
residence, and is said to have decided preponderance in a doubtful case
upon the place the elector claims as, or believes to be, his
residence.31The fact that a party continously voted in a particular locality
is a strong factor in assisting to determine the status of his domicile. 32
His claim that his registration in Quezon City was erroneous and was
caused by events over which he had no control cannot be sustained.
The general registration of voters for purposes of the May 1998 elections
was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21,
and 22.33
While, Domino's intention to establish residence in Sarangani can be
gleaned from the fact that be bought the house he was renting on
November 4, 1997, that he sought cancellation of his previous
registration in Qezon City on 22 October 1997,34 and that he applied for
transfer of registration from Quezon City to Sarangani by reason of
change of residence on 30 August 1997,35 DOMINO still falls short of the
one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and
actual presence in the district one intends to represent must satisfy the
length of time prescribed by the fundamental law.36 Domino's failure to
do so rendered him ineligible and his election to office null and void.37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the
present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the
Omnibus Election Code, has jurisdiction over a petition to deny due
course to or cancel certificate of candidacy. Such jurisdiction continues
even after election, if for any reason no final judgment of disqualification
is rendered before the election, and the candidate facing disqualification
is voted for and receives the highest number of votes38 and provided
further that the winning candidate has not been proclaimed or has taken
his oath of office.39
It has been repeatedly held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and exclusive jurisdiction over
all contests relating to the election, returns and qualifications of
members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the
House of Representatives. 40
The fact of obtaining the highest number of votes in an election does not
automatically vest the position in the winning candidate. 41 A candidate
must be proclaimed and must have taken his oath of office before he
can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect
of the Lone Congressional District of the Province of Sarangani by
reason of a Supplemental Omnibus Resolution issued by the COMELEC
on the day of the election ordering the suspension of DOMINO's
proclamation should he obtain the winning number of votes. This
resolution was issued by the COMELEC in view of the non-finality of its
6 May 1998 resolution disqualifying DOMINO as candidate for the
position.
Cosidering that DOMINO has not been proclaimed as Congressman-
elect in the Lone Congressional District of the Province of Sarangani he
cannot be deemed a member of the House of Representatives. Hence,
it is the COMELEC and not the Electoral Tribunal which has jurisdiction
over the issue of his ineligibility as a candidate.42
32
 Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the position of
representative of the province of Sarangani, may INTERVENOR, as the
candidate who received the next highest number of votes, be proclaimed
as the winning candidate?
It is now settled doctrine that the candidate who obtains the second
highest number of votes may not be proclaimed winner in case the
winning candidate is disqualified.43 In every election, the people's choice
is the paramount consideration and their expressed will must, at all
times, be given effect. When the majority speaks and elects into office a
candidate by giving the highest number of votes cast in the election for
that office, no one can be declared elected in his place. 44
It would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.45 To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for the mind
of the voters. He could not be considered the first among qualified
candidates because in a field which excludes the qualified candidate,
the conditions would have substantially changed.46
Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is fundamental idea in all republican forms of government
that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes
cast in the election.47
The effect of a decision declaring a person ineligible to hold an office is
only that the election fails entirely, that the wreath of victory cannot be
transferred48 from the disqualified winner to the repudiated loser
because the law then as now only authorizes a declaration of election in
favor of the person who has obtained a plurality of votes 49 and does not
entitle the candidate receiving the next highest number of votes to be
declared elected. In such case, the electors have failed to make a choice
and the election is a nullity.50 To allow the defeated and repudiated
candidate to take over the elective position despite his rejection by the
electorate is to disenfranchise the electorate without any fault on their
part and to undermine the importance and meaning of democracy and
the people's right to elect officials of their choice. 51
INTERVENOR's plea that the votes cast in favor of DOMINO be
considered stray votes cannot be sustained. INTERVENOR's reliance
on the opinion made in the Labo, Jr. case52 to wit: if the electorate, fully
aware in fact and in law of a candidate's disqualification so as to bring
such awareness within the realm of notoriety, would nevertheless cast
their votes in favor of the ineligible candidate, the electorate may be said
to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be
deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously
known by the public as an ineligible candidate. Although the resolution
declaring him ineligible as candidate was rendered before the election,
however, the same is not yet final and executory. In fact, it was no less
than the COMELEC in its Supplemental Omnibus Resolution No. 3046
that allowed DOMINO to be voted for the office and ordered that the
votes cast for him be counted as the Resolution declaring him ineligible
has not yet attained finality. Thus the votes cast for DOMINO are
presumed to have been cast in the sincere belief that he was a qualified
candidate, without any intention to misapply their franchise. Thus, said
votes can not be treated as stray, void, or meaningless.53
WHEREFORE, the instant petition is DISMISSED. The resolution dated
6 May 1998 of the COMELEC 2nd Division and the decision dated 29
May 1998 of the COMELEC En Banc, are hereby
AFFIRMED.1âwphi1.nêt
SO ORDERED.
POE VS. COMELEC
SEE ABOVE
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and
JACQUELINE M. SERIÑO, petitioners,
vs.
COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give candidates the
opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. Inasmuch
as Vicente Y. Emano has proven that he, together with his family, (1)
had actually resided in a house he bought in 1973 in Cagayan de Oro
City; (2) had actually held office there during his three terms as provincial
governor of Misamis Oriental, the provincial capitol being located
therein; and (3) has registered as voter in the city during the period
required by law, he could not be deemed "a stranger or newcomer" when
he ran for and was overwhelmingly voted as city mayor. Election laws
must be liberally construed to give effect to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
seeking to set aside the January 18, 1999 Resolution1 of the
Commission on Elections (Comelec) en banc in SPA No. 98-298, which
upheld the July 14, 1998 Resolution2 of the Comelec First Division. The
assailed Resolutions ruled that Private Respondent Vicente Y. Emano
possessed the minimum period of residence to be eligible to vote in
Cagayan de Oro City, as well as be voted mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as
follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and
proclaimed provincial governor of Misamis Oriental. It was his third
consecutive term as governor of the province. In his Certificate of
Candidacy dated March 12, 1995, his residence was declared to be in
Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano
executed a Voter Registration Record in Cagayan de Oro City
(geographically located in the Province of Misamis Oriental), a highly
urbanized city, in which he claimed 20 years of residence. On March 25,
1998, he filed his Certificate of Candidacy for mayor of the city, stating
therein that his residence for the preceding two years and five months
was at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan
de Oro City.
Among those who ran for the mayorship of the city in 1998, along with
Emano, was Erasmo B. Damasing, counsel of herein petitioners. On
May 15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan
and Jacqueline M. Seriño, all residents of Cagayan de Oro City, filed a
Petition before the Comelec, docketed as SPA No. 98-298, in which they
sought the disqualification of Emano as mayoral candidate, on the
ground that he had allegedly failed to meet the one-year residence
requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor. Thus, on
May 29, 1998, petitioners filed another Petition before the Comelec, this
time for quo warranto,3 in which they sought (1) the annulment of the
33
election of private respondent; and (2) the proclamation of Erasmo B.
Damasing, who had garnered the next highest number of votes, as the
duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied
the Petition for Disqualification. Upon petitioners' Motion for
Reconsideration and Motion for Consolidation, the two cases were
consolidated.4
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and
conclusions of the First Division, holding that "[t]he records clearly show
that the respondent is an actual resident of Cagayan de Oro City for such
a period of time necessary to qualify him to run for mayor therein. This
fact is clearly established by the respondent having a house in the city
which has been existing therein since 1973 and where his family has
been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official from
residing and/or registering as a voter in a highly urbanized city whose
residents are not given the right to vote for and be elected to a position
in the province embracing such highly urbanized city as long as he has
complied with the requirements prescribed by law in the case of a
qualified voter.
"Neither can the list of voters submitted as evidence for the petitioners
showing that the respondent was a registered voter as of March 13, 1995
in Precinct No. 12, Barangay Poblacion, Tagoloan, Misamis Oriental
bolster the petitioner's argument that the respondent is not a resident [or
a] registered voter in Cagayan de Oro City since registration in said
Precinct No. 12 does not preclude the respondent from registering anew
in another place."
Hence, this recourse5 before this Court.
Issues
In their Memorandum,6 petitioners submit that the main issue is whether
the "Comelec gravely abused its discretion amounting to lack of
jurisdiction in issuing the questioned Resolutions." Allegedly, the
resolution of this issue would depend on the following:7
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until
he filed his certificate of candidacy for mayor of
Cagayan de Oro City on March 25, 1998 in the May
11, 1998 election;
(b) asserting under oath [that he was] qualified to
act as governor of said province until said date; and
(c) admitting, in sworn statements, [that he was] a
resident of Misamis Oriental,
precluded him from acquiring a bona fide domicile of choice
for at least one (1) year in Cagayan de Oro City prior to the
May 11, 1998 elections, as to disqualify him for being a
candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a
residence certificate in Cagayan de Oro City, holding offices
as governor of Misamis Oriental in the Capitol Building located
in Cagayan de Oro City and having a house therein where [he
had] stay[ed] during his tenure as governor, and registering as
a voter in said City in June 1997, would be legally sufficient,
as against the undisputed facts above enumerated, to
constitute a change of his domicile of birth in Tagoloan,
Misamis Oriental in favor of a new domicile of choice in
Cagayan de Oro City for at least one (1) year for purposes of
qualifying him to run for city mayor in the May 11, 1998
elections.
3. Whether or not Erasmo Damasing, the candidate for mayor
of Cagayan de Oro City in the May 11, 1998 elections, who
received the second highest number of votes, can be declared
winner, considering that respondent Emano was disqualified
to run for and hold said office and considering that his
disqualification or ineligibility had been extensively brought to
the attention and consciousness of the voters prior to the May
11, 1998 election as to attain notoriety, notwithstanding which
they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1)
whether private respondent had duly established his residence in
Cagayan de Oro City at least one year prior to the May 11, 1998
elections to qualify him to run for the mayorship thereof; and (2) if not,
whether Erasmo Damasing, the candidate who had received the second
highest number of votes, should be proclaimed mayor of the city.
The Court’s Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners
was deliberated upon by the Court. We note that petitioners pray, among
others, for judgment "declaring Atty. Erasmo B. Damasing as entitled to
be proclaimed winner as mayor in the May 11, 1998 elections in
Cagayan de Oro City."8 And yet, Damasing is not a party to the instant
"Petition for Certiorari pursuant to Rule[s] 64 and 65" brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1)
the solicitor general or (2) a public prosecutor or (3) a person claiming
to be entitled to the public office or position usurped or unlawfully held
or exercised by another.9 A reading of the Rules shows that petitioners,
none of whom qualify under any of the above three categories, are
without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed
before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-
62 for quo warranto. Under our election laws and the Comelec Rules of
Procedure, any voter may file a petition to disqualify a candidate on
grounds provided by law,10 or to contest the election of a city officer on
the ground of ineligibility or disloyalty to the Republic. 11 The petitioners
herein, being "duly-registered voters" of Cagayan de Oro City, therefore
satisfy the requirement of said laws and rules.12
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in
Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as allegedly
shown by the following facts: (1) he had run and won as governor of the
province of Misamis Oriental for three consecutive terms immediately
preceding the 1998 elections; (2) in the pleadings he filed in connection
with an election protest against him relating to the 1995 election, he had
stated that he was a resident of Tagoloan, Misamis Oriental; (3) he had
fully exercised the powers and prerogatives of governor until he filed his
Certificate of Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial governor,
private respondent remained a resident of the province. They aver that
residence is a continuing qualification that an elective official must
possess throughout his term. Thus, private respondent could not have
changed his residence to Cagayan de Oro City while he was still
governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to
constitute a change of domicile: having a house in Cagayan de Oro City,
residing therein while exercising one's office as governor (the city being
the seat of government of the province), securing a residence certificate
and registering as voter therein.
34
Private respondent, on the other hand, alleges that he actually and
physically resided in Cagayan de Oro City while serving as provincial
governor for three consecutive terms, since the seat of the provincial
government was located at the heart of that city.13 He also avers that
one's choice of domicile is a matter of intention, and it is the person
concerned who would be in the best position to make a choice. In this
case, Emano decided to adopt Cagayan de Oro City as his place of
residence after the May 1995 elections. In fact, in January 1997, he
secured his Community Tax Certificate at the City Treasurer's Office,
stating therein that he was a resident of 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City. During the general
registration of voters in June 1997, he registered in one of the precincts
of Gusa, Cagayan de Oro City. This meant that, at the time, Emano had
been a voter of the city for the minimum period required by law. No one
has ever challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal residence
did not ipso facto divest him of his position as provincial governor. First,
there is no law that prevents an elected official from transferring
residence while in office. Second, an elective official's transfer of
residence does not prevent the performance of that official's duties,
especially in private respondent's case in which the seat of government
became his adopted place of residence. Third, as ruled in Frivaldo v.
Comelec,14 the loss of any of the required qualifications for election
merely renders the official's title or right to office open to challenge. In
Emano's case, no one challenged his right to the Office of Provincial
Governor when he transferred his residence to Cagayan de Oro City.
Naturally, he continued to discharge his functions as such, until he filed
his candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed
in the election result, must be respected. He is not, after all, a stranger
to the city, much less to its voters. During his three terms as governor of
Misamis Oriental, his life and actuations have been closely interwoven
with the pulse and beat of Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v.
Comelec15 in its Memorandum16 which supports the assailed
Resolutions, and which has been filed in view of the solicitor general's
Manifestation and Motion in Lieu of Comment.17 Thus, the poll body
argues that "x x x the fact of residence x x x ought to be decisive in
determining whether or not an individual has satisfied the Constitution's
residency qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the Local
Government Code (LGC) of 1991,18 which provides for the qualifications
of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen
of the Philippines; a registered voter in the barangay, municipality, city,
or province x x x where he intends to be elected; a resident therein for
at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the Constitution
or the law intends to prevent the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and not
identified with the latter from [seeking] an elective office to serve that
community."19 Such provision is aimed at excluding outsiders "from
taking advantage of favorable circumstances existing in that community
for electoral gain."20 Establishing residence in a community merely to
meet an election law requirement defeats the purpose of representation:
to elect through the assent of voters those most cognizant and sensitive
to the needs of the community. This purpose is "best met by individuals
who have either had actual residence in the area for a given period or
who have been domiciled in the same area either by origin or by
choice."21
Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,22 this Court ruled
that private respondent therein, now Representative Rodolfo E.
Aguinaldo of the Third District of Cagayan, had duly proven his change
of residence from Gattaran, Cagayan (part of the First District) to
Tuguegarao, Cagayan (part of the Third District in which he sought
election as congressman). He proved it with the following facts: (1) in
July 1990, he leased and lived in a residential apartment in Magallanes
Street, Tuguegarao, Cagayan; (2) in July 1995, he leased another
residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan;
(3) the January 18, 1998 Certificate of Marriage between Aguinaldo and
his second wife, Lerma Dumaguit; (4) the Certificate of Live Birth of his
second daughter; and (5) various letters addressed to him and his family
showed that he had been a resident of Tuguegarao for at least one year
immediately preceding the May 1998 elections. The Court also stated
that it was not "of much importance that in his [Aguinaldo's] certificates
of candidacy for provincial governor in the elections of 1988, 1992, and
1995, private respondent stated that he was a resident of Gattaran." 23
In the case at bar, the Comelec found that private respondent and his
family had actually been residing in Capistrano Subdivision, Gusa,
Cagayan de Oro City, in a house he had bought in 1973. Furthermore,
during the three terms (1988-1998) that he was governor of Misamis
Oriental, he physically lived in that city, where the seat of the provincial
government was located. In June 1997, he also registered as voter of
the same city. Based on our ruling in Mamba-Perez, these facts
indubitably prove that Vicente Y. Emano was a resident of Cagayan de
Oro City for a period of time sufficient to qualify him to run for public
office therein. Moreover, the Comelec did not find any bad faith on the
part of Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is
a highly urbanized city whose voters cannot participate in the provincial
elections. Such political subdivisions and voting restrictions, however,
are simply for the purpose of parity in representation. The classification
of an area as a highly urbanized or independent component city, for that
matter, does not completely isolate its residents, politics, commerce and
other businesses from the entire province -- and vice versa -- especially
when the city is located at the very heart of the province itself, as in this
case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis
Oriental and remains a geographical part of the province. Not only is it
at the center of the province; more important, it is itself the seat of the
provincial government. As a consequence, the provincial officials who
carry out their functions in the city cannot avoid residing therein; much
less, getting acquainted with its concerns and interests. Vicente Y.
Emano, having been the governor of Misamis Oriental for three terms
and consequently residing in Cagayan de Oro City within that period,
could not be said to be a stranger or newcomer to the city in the last year
of his third term, when he decided to adopt it as his permanent place of
residence.
Significantly, the Court also declared in Mamba-Perez that "although
private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan,
the fact is that he was actually a resident of the Third District not just for
one (1) year prior to the May 11, 1998 elections but for more than seven
(7) years since July 1990. His claim that he ha[s] been a resident of
Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for
him to maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan."
Similarly in the instant case, private respondent was actually and
physically residing in Cagayan de Oro City while discharging his duties
as governor of Misamis Oriental. He owned a house in the city and
resided there together with his family. He even paid his 1998 community
tax and registered as a voter therein. To all intents and purposes of the
Constitution and the law, he is a resident of Cagayan de Oro City and
eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued to qualify
as provincial governor if he was indeed a resident of Cagayan de Oro
City, we respond that the issue before this Court is whether Emano's
residence in the city qualifies him to run for and be elected as mayor,
not whether he could have continued sitting as governor of the province.
There was no challenge to his eligibility to continue running the province;
35
hence, this Court cannot make any pronouncement on such issue.
Considerations of due process prevent us from adjudging matters not
properly brought to us. On the basis, however, of the facts proven before
the Comelec, we hold that he has satisfied the residence qualification
required by law for the mayorship of the city.
We stress that the residence requirement is rooted in the desire that
officials of districts or localities be acquainted not only with the metes
and bounds of their constituencies but, more important, with the
constituents themselves -- their needs, difficulties, aspirations, potentials
for growth and development, and all matters vital to their common
welfare. The requisite period would give candidates the opportunity to
be familiar with their desired constituencies, and likewise for the
electorate to evaluate the former's qualifications and fitness for the
offices they seek.
In other words, the actual, physical and personal presence of herein
private respondent in Cagayan de Oro City is substantial enough to
show his intention to fulfill the duties of mayor and for the voters to
evaluate his qualifications for the mayorship. Petitioners' very legalistic,
academic and technical approach to the residence requirement does not
satisfy this simple, practical and common-sense rationale for the
residence requirement.
Interpretation to Favor Popular Mandate
There is no question that private respondent was the overwhelming
choice of the people of Cagayan de Oro City.1âwphi1He won by a
margin of about 30,000 votes.24 Thus, we find it apt to reiterate the
principle that the manifest will of the people as expressed through the
ballot must be given fullest effect. In case of doubt, political laws must
be interpreted to give life and spirit to the popular mandate. 25 Verily,
in Frivaldo v. Comelec,26 the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving effect
to the sovereign will in order to ensure the survival of our democracy. In
any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely
sound public policy to cause elective offices to be filled by those who are
the choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly demonstrate that
the ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the
apparent will of the people would ultimately create greater prejudice to
the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote."
In the same vein, we stated in Alberto v. Comelec27 that "election cases
involve public interest; thus, laws governing election contests must be
liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular sovereignty than
to be right in complex but little understood legalisms."28
In sum, we hold that Respondent Comelec cannot be faulted with abuse,
much less grave abuse, of discretion in upholding private respondent's
election.
Corollary Issue: Effect of Disqualification of Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that the
second one posited by petitioners has become academic and need not
be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA,
in their respective capacities as Chairman and Members of the
Commission on Elections, and the COMMISSION ON
ELECTIONS, respondents.
---------------------------
G.R. No. L-24828 September 7, 1965
FELIPE N. AUREA and MELECIO MALABANAN, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs.
Juan Borra, et al.," and case G.R. No. L-24828, "Felipe N. Aurea and
Melecio Malabanan vs. Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all candidates for
national, provincial, city and municipal offices" to post a surety
bond equivalent to the one-year salary or emoluments of the
position to which he is a candidate, which bond shall be
forfeited in favor of the national, provincial, city or municipal
government concerned if the candidate, except when
declared winner, fails to obtain at least 10% of the votes cast
for the office to which he has filed his certificate of candidacy,
there being not more than four (4) candidates for the same
office;"
2. That, in compliance with said Republic Act No. 4421, the
Commission on Elections had, on July 20, 1965, decided to
require all candidates for President, Vice-President, Senator
and Member of the House of Representatives to file a surety
bond, by a bonding company of good reputation, acceptable
to the Commission, in the sums of P60,000.00 and
P40,000.00, for President and Vice-President, respectively,
and P32,000.00 for Senator and Member of the House of
Representatives;
3. That, in consequence of said Republic Act No. 4421 and
the aforementioned action of the Commission on Elections,
every candidate has to pay the premium charged by bonding
companies, and, to offer thereto, either his own properties,
worth, at least, the amount of the surety bond, or properties of
the same worth, belonging to other persons willing to
accommodate him, by way of counter-bond in favor of said
bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore,
to prevent or disqualify from running for President, Vice-
President, Senator or Member of the House of
Representatives those persons who, although having the
qualifications prescribed by the Constitution therefore, cannot
file the surety bond aforementioned, owing to failure to pay the
premium charged by the bonding company and/or lack of the
property necessary for said counter-bond;
5. That said Republic Act No. 4421 has, likewise, the effect of
disqualifying for provincial, city or municipal elective offices,
persons who, although possessing the qualifications
prescribed by law therefor, cannot pay said premium and/or
do not have the property essential for the aforementioned
counter-bond;
6. That said Republic Act No. 4421 has, accordingly, the effect
of imposing property qualifications in order that a person could
36
 run for a public office and that the people could validly vote for
him;
7. That said property qualifications are inconsistent with the
nature and essence of the Republican system ordained in our
Constitution and the principle of social justice underlying the
same, for said political system is premised upon the tenet that
sovereignty resides in the people and all government authority
emanates from them, and this, in turn, implies necessarily that
the right to vote and to be voted for shall not be dependent
upon the wealth of the individual concerned, whereas social
justice presupposes equal opportunity for all, rich and poor
alike, and that, accordingly, no person shall, by reason of
poverty, be denied the chance to be elected to public office;
and
8. That the bond required in Republic Act No. 4421 and the
confiscation of said bond are not predicated upon the
necessity of defraying certain expenses or of compensating
services given in connection with elections, and is, therefore,
arbitrary and oppressive.
The Court RESOLVED, without prejudice to rendering an extended
decision, to declare that said Republic Act No. 4421 is unconstitutional
and hence null and void, and, hence, to enjoin respondents herein, as
well as their representatives and agents, from enforcing and/or
implementing said constitutional enactment.
FELIPE TOPACIO, petitioner,
vs.
ISIDRO PAREDES, judge of First Instance, ET AL., respondents.
Ramon Diokno, for petitioner.
Mercado, Adriatico and Tirona and J.E. Blanco, for respondents.
TRENT, J.:
This is an original action instituted in this court wherein the petitioner
prays that a writ of certiorari issue to the judge of the Court of First
Instance of the Province of Cavite, directing him to certify to this court a
transcript of the record of the proceedings had in that court on a certain
election contest, hereinafter set forth.
In answer to the orders to show any cause why the writ should not
issued, respondents allege that the allegations in the petition do not
constitute a cause of action for the reason that the respondent judge had
no jurisdiction to determine all the basis of this action. The case has
been well presented by able counsel on both sides, and the court is fully
advised upon the issues involved.
The petitioner alleges that the respondent judge exceeded his
jurisdiction in the course of that election contest in that he declared that
no one had been legally elected president of the municipality of Imus at
the general election held in that town on June 4, 1912, and the petitioner
prays that the judgment thus rendered and all subsequent proceedings
based thereon be declared null and void for lack of jurisdiction. A copy
of all the proceedings which are necessary for a clear understanding of
the questions presented is attached to the petition and forms a part
thereof.
The admitted facts are these: on June 4, 1912, a general election was
held in the town of Imus, Province of Cavite, to fill the office of municipal
president. The petitioner, Felipe Topacio, and the respondent, Maximo
Abad, were opposing candidates for that office. Topacio received 430
votes, and Abad 281. Abad contested the election upon the sole ground
that Topacio was ineligible in that he was reelected the second time to
the office of the municipal president on June 4, 1912, without the four
years required by Act No. 2045 having intervened.
There is now no question and never has been about the correctness of
the method of casting and counting the votes. The only question in this
case which it necessary for us to determine is whether or not the
respondent judge had jurisdiction, under the provisions of section 27 of
the Election Law, as amended by Act No. 2170, to declare that no one
was legally elected president of Imus on June 4, 1912. In other words,
have the Courts of First Instance jurisdiction, under the above provisions
of law, to determine the eligibility of candidates for office? It is admitted
by all that the contest under consideration was instituted in the Court of
First Instance of Cavite under those provisions and that the only question
raised or which could have been raised by the pleadings in the
proceedings in the court below was whether or not Topacio was eligible
to be elected and to hold the office of municipal president. Section 27 of
Act No. 1582 as originally enacted reads:
SEC. 27. Election contests.—The Assembly shall be the judge
of the elections, returns, and qualification of its members.
Contests in all elections for the determination of which
provision has not been made otherwise shall be heard by the
Court of First Instance having jurisdiction in the judicial district
in which the election was held, upon motion by any candidate
voted for at such elections, which motion must be made within
two weeks after the election, and such court shall have
exclusive and final jurisdiction and shall forthwith cause the
registry lists and all ballots used at such election to be brought
before it and examined, and to appoint the necessary officers
therefor and to fix their compensation, which shall be payable
in the first instance out of the provincial treasury, and to issue
its mandamus directed to the boards of canvassers to correct
its canvass in accordance with the facts as found. If in any
case the court shall determine that no person was lawfully
elected it shall forthwith so certify to the Governor-General,
who shall order a special election to fill the office or offices in
question as hereinbefore provided.
Before the court shall entertain any such motion the party
making it shall give a bond in an amount to be fixed by the
court with two sureties satisfactory to it, conditioned that he
will pay all expenses and costs incident to such motion, or
shall deposit cash in court in lieu of such bond. If the party
paying such expenses and costs shall be successful they shall
be taxed by the court and entered and be collectible as a
judgment against the defeated party.
All proceedings under this section shall be upon motion with
notice of not to exceed twenty days to all candidates voted for
and not upon pleadings or by action, and shall be heard and
determined by the court in the judicial district in which the
election was held regardless of whether said court be at the
time holding a regular or stated term. In such proceedings the
registry list as finally corrected by the board of inspector shall
be conclusive to who was entitled to vote at such election.
The clerk of the court in which any such contest is instituted
shall give immediate notice of its institution and also of the
determination thereof to the Executive Secretary.
As amended by Act No. No. 2170, the same section provides:
SEC. 27. Election contests.—The Assembly shall be the judge
of the elections, returns, and disqualifications of its members.
The time for the filing of the contests, the notification thereof,
and the expenses, costs, and the bonds shall be until
repealed. Contests in all elections for the determination of
which provision has not been made otherwise shall be heard
by the Court of First Instance having jurisdiction in the judicial
district in which the election was held, upon motion by any
candidate voted for at such election. The contest shall be filed
with the court within two weeks after the election and shall be
decided by the same as soon as possible after the hearing of
the contest. Such court shall have exclusive and final
jurisdiction, except as hereinafter provided, and shall forthwith
cause the registry lists and all ballots used at such election to
be brought before it and examined, and to appoint the
necessary officers therefor and to fix their compensation,
which shall be payable in the first instance out of the provincial
treasury, and to issue its mandamus directed to the board of
37
 canvassers to correct its canvass in accordance with the facts
as found. If in any case the court shall be determine that no
person was lawfully elected it shall forthwith so certify to the
Governor-General, who shall order a special election to fill the
office or offices in question as hereinbefore
provided: Provided, however, That an appeal may be taken to
the Supreme Court, within ten days, from any final decision
rendered by the Court of First Instance on contests of
elections for provincial governors, for the review, amendment,
repeal, or confirmation of such decision, and the procedure
thereon shall be the same as in a criminal cause.
Before the court shall entertain any such motion or admit an
appeal, the party making the motion or filing the appeal shall
give bond in an amount fixed by the court with two sureties
satisfactory to it, conditioned that he will pay all expenses and
costs incident to such motion or appeal, or shall deposit cash
in court in lieu of such bond. If the party paying such expenses
and costs shall be successful they shall be taxed by the court
and entered and be collectible as a judgment against the
defeated party.
All proceedings under this section shall be upon motion with
notice of not to exceed twenty days to all candidates voted for
and not upon pleadings or by action, and shall be heard and
determined by the court in the judicial district in which the
election was held regardless of whether said court be at the
time holding or stated term. In such proceedings the registry
list as finally corrected by the board of inspectors shall be
conclusive as to who was entitled to vote at such election.
The clerk of the court in which any such contest is instituted
shall give immediate notice of its institution and also of the
determination thereof to the Executive Secretary.
It will be noted that the only changes made in the section as amended
are (1) the admonition to the courts to decide the election contests as
soon as possible, and (2) that the jurisdiction of Courts of First Instance
is not now final and conclusive in such contests as to provincial
governors. In all other essential respects, the section remains the same.
Consequently, if the courts did not have jurisdiction under the original
section to determine, in election contests, the question of the eligibility
or legal qualifications of candidates, the amendment does not confer
upon them that jurisdictional power. The conclusion placed upon the
original section by this court is perfectly applicable to the new.
The method provided in the above-quoted section for the determination
of election contests is purely a statutory one. The proceedings are not
ordinary suits. The statute expressly declares that the "proceedings"
shall not be "upon pleadings or by action." This statute was especially
enacted to give the Courts of First Instance the power to try contested
election cases and it defines the powers of the court and the rules of
procedure in the trial thereof. The statute prescribes a special mode of
procedure and the court is compelled to conform to it. It provides a
speedy remedy. It prescribes within what time the motion shall be filed
and requires the court to decide the contest as speedily as possible,
giving preference over all other cases, if practicable, and also defines to
a great extent how the court shall reach its conclusions. These facts
clearly show that the court is made a special tribunal to try contested
election cases. The jurisdiction of such tribunals, although courts of
general jurisdiction in all other matters, is strictly confined within the
provisions of the statute creating them for this purpose.
The court can take no additional power from its general
jurisdiction. In the exercise of such special powers it is
precisely limited to those plainly delegated. Nothing is to be
presumed which is not expressly given. (Sutherland, Stat.
Const., § 391.)
Whatever may be the rule with regard to courts of general
powers, when acting within the scope of those powers, it is
well settled that when they do not, and exercise a special and
statutory authority, their proceedings stand on the same
footing with those of courts of limited and inferior jurisdiction,
and will be invalid unless the authority on which they are
founded has been strictly pursued. (1 Smith's Lead. Cas., 832,
citing Denning vs. Corwin, 11 Wend., 647; Williamson vs.
Berry, 8 How., 495; Thacher vs. Powell, 6 Wheat., 119;
Embury vs. Connor, 3 N.Y., 511, 53 Am. Dec., 525, and
others.) [66 Am. Dec., 56.]
In Galpin vs. Page (85 U.S., 350, 21 L. Ed., 959), the court said:
The extent of the special jurisdiction and the conditions of its
exercise over the subjects or person necessarily depend upon
terms in which the jurisdiction is granted, and not upon the
rank of the court upon which it is conferred.
Section 27, with its amendment, was evidently intended to afford a new
and summary remedy in cases of contested elections, and it is a cardinal
rule that in summary proceedings the law must be strictly pursued.
(Dorsey vs. Barry, 24 Cal., 449.)
That the proceedings authorized by those provisions were intended by
the legislature to be summary in the highest degree cannot be doubted.
The requirements that the hearing, as we have said, is to be had on
motion and not upon pleadings or by action; that the motion must be
made within a very limited time; that the notice of the motion shall not
exceed twenty days; and that the court shall decide the contest as soon
as possible, and issue its mandamus forthwith to the canvassers; all the
show the summary, expeditious, and informal character of the
proceedings. It is a special authorization to the court to do certain things
in a particular way, and it is not to be construed as conferring power to
do anything not expressly authorized. The fact that the person selected
to inquire into such contests happens to be a judge is a mere incident,
and does not authorize the inference that the power possessed with
reference to actions is possessed with respect to these proceedings,
which are expressly declared not to be actions. In these summary
proceedings, the court is given extraordinary powers in that its
jurisdiction is exclusive and final.
Statutes authorizing summary proceedings must be
construed with strictness, and must be exactly followed by
those who act under or in pursuance of them. (Black on
Interpretation of Laws, 305, citing Robinson vs. Schmid, 48
Tex., 13.)
It is a well settled and wholesome rule, that statutes
authorizing summary proceedings, and by which
extraordinary powers are given to courts or officers of justice
are to be strictly pursued, so far as regards all the steps and
proceedings necessary to give jurisdiction or the whole
proceedings will be void. (Sedgwick on Stat. Const. (2d ed),
299.)
Upon these premises the judgment in the case at bar must rest.
Counsel for respondents insist, first, that if the Courts of First Instance
do not have the power under the above-quoted provisions of law to pass
upon the eligibility of candidates for public office, the result will be very
serious in that it will be possible for a stranger, an enemy of the
government and nation, by reason of his power and influence in certain
province or municipality, to take possession of the government of such
province or municipality and continue in the possession of the same until
he is ousted in accordance with section 12 of Act No. 1582; or, in other
words, that there is no machinery other than the Courts of First Instance
whereby eligibility or legal qualifications of candidates for provincial and
municipal offices can be determine before they enter upon the duties of
such offices. As a legal proposition, this is not true. The provisions of law
on this point and those giving the Governor-General power to remove
ineligible provincial and municipal officers who are holding office are as
follows:
. . . The Governor-General may refuse to confirm the election
of any elective provincial officer if there is reasonable ground
to suspect his loyalty to the constituted authorities, or if there
is, in the opinion of the Governor-General, reasonable ground
to believe that such person is morally unfit to hold the office,
or in case, in the opinion of the Governor-General, such
person has a bad reputation for morality, honesty, and
38
 uprighteness in the community in which he lives. In case of
refusal to confirm the election of any provincial officer the
Governor-General, with the advise and consent of the
Philippine Commission, may appoint a suitable person to fill
the vacancy for the full term and until the election and
qualification of a successor or, in his discretion, may call a
special election to fill the office as provided in section four
hereof, and at such special election a person whose
confirmation was so refused shall be ineligible and no vote
shall be counted or canvasses for him. (Sec. 3, Act No. 1726.)
Any member of a provincial board or other person who has
information that the provincial governor or third member is
ineligible shall at once report the matter to the Governor-
General who shall order an investigation by such officers as
he may appoint for the purpose, giving the governor-elect or
third member elect, as the case may be, opportunity to
present evidence in his behalf, and upon the report thereof
shall declare the office vacant, or dismiss the proceedings, as
the facts may warrant. (Paragraph 8 [6] of section 12 as
amended, Act No. 1582.)
Any councilor or other municipal officer or other person who
has information that a municipal officer is ineligible shall
immediately report the matter to the municipal council which
shall hold an investigation giving the officer opportunity to
present the evidence in his favor. The council shall declare the
office vacant or dismiss the proceedings as the facts may
warrant. A record of the proceedings and evidence shall be
kept and forwarded to the provincial board which, within thirty
days, shall affirm or reverse the action of the council.
(Paragraphs 9 [7] of section 12 as amended, Act No. 1582.)
The Governor-General, upon receipt of proof satisfactory to
him that an uneligible person is holding any provincial or
municipal office or employment, may summarily remove such
person. (Section 2, Act No. 1726.)
Those disqualifications set forth in section 25 of Act No. 1582 as
amended by section 3 of At No. 1726 (supra) which render a person
incapable of holding an elective provincial office and which prevent the
confirmation of the election of such person derived from the personal
character of the individual and do not of themselves render him
ineligible to be elected. They only prevent him from exercising the
functions of the office until they are removed. Those disqualifications
which are not derived from the personal character of the individual and
which render him ineligible to hold the office are not included in this
section.
Paragraph eight of section 12 of Act No. 1582 (as amended) authorizes
and empowers the Governor-General, after an investigation as therein
provided, to declare the office of provincial governor or third member
vacant on account of the ineligibility of the "governor-elect" or "third
member elect." In the sense here used, the word "elect" is defined by
the lexicographers as follows:
Chosen to an office, but not yet actually inducted into it; as,
bishop elect, governor or mayor elect. (Webster, Edition of
1910.)
Elected to office but not yet in charge of its functions; as, the
president elect; the bishop elect.
It will be noted that "governor-elect" is a hyphenated word, while "third
member elect" is composed of three independent word, and that the
hypen is not used in either of the above definitions. This variation in the
punctuation, however, is not important, as any construction of a statute
based upon punctuation which is in conflict with the plain and evident
intent of the legislature cannot be sustained. (Black, Int. of Laws, p. 185.)
The Governor-General can only exercise the power conferred upon him
by this paragraph in the internal between the election and the induction
into office of such person. This is clear from the mere reading of the
paragraph. Had it been otherwise, the legislature would not have used
the words "governor-elect" and "third member elect." But it is said that
under the rule of strict construction as above set forth, the word
"ineligible" as used in the paragraph under consideration, does not
include those disqualifications which are not derived from the personal
character of the individual, such as the one mentioned in section 2 of Act
No. 2045. That the authority here conferred is special and statutory and
that its extent depends upon the terms of the grant, there can be no
question. That the power to declare the office vacant has been granted
cannot be doubted. There is an express grant. It is restricted. The
paragraph is not ambiguous. Plain, ordinary language is used.
If the words of a statute are of themselves precise and
unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The
words themselves do, in such case, best declare the intention
of the legislature. (Sutherland, Stat. Const., 247.)
The word "ineligible" is defined as follows:
Legally or otherwise disqualified for office. Not eligible.
(Standard, Edition 1910.)
Disqualified to be elected to an office; also disqualified to hold
an office, if elected or appointed to it. (28 Wis., 99; Black's Law
Dict.)
The foregoing provisions of law cover every case of ineligible elective
provincial officers.
Paragraph 9 [7] of section 12, as amended, of Act No. 1582 confers upon
the municipal council, with the approval of the provincial board, the same
powers with respect to municipal officers, as are upon the Governor-
General with respect to provincial officers by paragraph 8[6]. The
wording of two paragraphs upon this point is exactly the same. The word
"ineligible" is used in the same manner in each. There cannot be the
slightest doubt about the existence of the power and the right and duty
of the municipal council to exercise it. The grant is expressed in direct
and positive language. No construction is required to reach this result.
But in paragraph does have to be examined in order to ascertain the
intent of the legislature as to when the power is to be exercised; that is,
whether it is operative before or after the person assumes office. To
determine this question, the paragraph must be construed in connection
with other provisions of the same act and subsequent legislation in pari
materia. It cannot be segregated, If it stood alone, some difficulty would
be encountered, as the word "officer" is not followed by the word "elect"
as in paragraph eight. This might be said to indicate that it was the
intention of the legislature that the power should be exercised after the
person had entered upon the duties of the office; that the oath of office
is a condition precedent to the exercise of the power therein conferred.
But when this paragraph is read in connection with paragraph eight of
the same section, and section 2 of Act No. 1726, the intent is manifest.
This latter section provides that the Governor-General, upon receipt of
proof satisfactory to him, that an ineligible person is holding any
provincial or municipal office or employment, he may summarily remove
such person. That the Governor-General cannot exercise the power
herein conferred until after the person has assumed office is specifically
stated. He can only remove persons holding office. Here the entire field
is covered and includes all provincial and municipal officers and
employees. It can hardly be said that the legislature intended to invest
the same power with reference to the removal of ineligible persons
holding municipal offices in both the Governor-General and the
municipal council. The legislature very wisely withheld from municipal
councils the power to remove persons holding municipal offices and
placed this power in the highest executive officer of the Government. It
is therefore clear that the powers conferred upon municipal councils by
paragraph nine of section 12 (supra), cannot be exercised after the
municipal officers enter upon their duties as such. The result is that there
exists a complete administrative remedy for preventing ineligible
provincial and municipal officers elect from entering upon the duties of
such offices. A like remedy exists for the summary removal of such
officers after they have taken charge.
Secondly, counsel for respondents argue that section 27 confers upon
the Courts of First Instance the power to pass upon the eligibility of
candidates for an elective office, in the exercise of the special powers
thereby granted.
39
We premise that if the Courts of First Instance cannot finally and
conclusively determine any election dispute under the powers granted
them by section 27, such dispute cannot properly be considered
justifiable under those powers at all, inasmuch as the legislature has
expressly provided that all decisions of such tribunals in the exercise of
these special powers shall be final and conclusive (with the exception,
of course, in taken within ten days). The qualification and
disqualifications of elective provincial and municipal officers are set forth
in the following provisions:
Provincial governors and third members of provincial boards must be at
the time of the election qualified electors in the province; they must have
been bona fide residents therein for at least one year prior to the date of
their election; must owe allegiance to the United States, and must be not
less than twenty-five years of age: Provided, however, That the
provisions of this section shall not apply to those persons or cases where
the Governor-General shall appoint a provincial governor or third
member of a provincial board under existing provisions of law." (Second
paragraph of section 12, as amended, of Act No. 1582.)
No person shall be eligible to election as a Delegate to the
Philippine Assembly, provincial governor, or third member of
a provincial board unless, not less than ten days before the
day set for the election, he shall have filed with the proper
provincial board a written certificate, over his signature, that
he thereby announces, or permits to be announced, his
candidacy for the position to be mentioned in said certificate.
. . . Provided, however, That in case of the death or
disqualification of any candidate who has duly announced his
candidacy, occurring within the ten days next preceeding the
day of election, as hereinbefore mentioned, it shall be lawful
for any other duly qualified person to file, on or before noon of
the day set for the election, a certificate of his candidacy for
the position for which the deceased or disqualified person was
candidate." (Paragraph 3 of section 12 as amended by section
7 of Act No. 2045.)
An elective municipal officer must have been, at the time of
the election, a qualified voter and resident in the municipality
for at least one year, owing allegiance to the United States; he
must be not less than twenty-three years of age, and be able
to read and write intelligently either Spanish, English or the
local dialect: Provided, That a person ineligible for office by
reason of nonpayment of taxes who is elected to any office
may remove such ineligibility by the payment of the taxes
before the date fixed by law for assuming office, but not
afterwards. (Paragraph 5 of section 12, Act No. 1582, as
amended.)
Unless fully pardoned, no person who is under judgment of
conviction of a crime which is punishable by imprisonment for
two years or more or which involves moral turpitude,
regardless of whether or not an appeal is pending in the
action, shall hold any public office, and no person disqualified
from holding public office by the sentence of a court, whether
or not an appeal is pending in the action, or so disqualified
under the provisions of Act Numbered Eleven hundred and
twenty-six, as amended, shall be eligible to hold public office
during the term of his disqualification. No person who
habitually smokes, chews, swallows, injects, or otherwise
consumes or uses opium in any of its forms, shall be eligible
to hold any provincial or municipal office." (Sec. 1, Act No.
1768.)
A second reelection to any provincial or municipal office is
prohibited, except after four years. (Sec. 2 of the Act No.
2045.)
No person, except a notary public, holding any appointive
public office or employment, or any public office or
employment by appointment, shall, within ninety days
preceding any general election, or within sixty days preceding
any special election, announce his candidacy for, or be
eligible to hold, any elective public office of employment to be
filled at such general or special election. No person holding an
elective present his candidacy, nor shall he be eligible while
holding such office, at any municipal, provincial or Assembly
election, except for reelection to the office held by him. . . (Sec.
3, Act No. 1948.)
Is it possible to finally pass upon the eligibility of a candidate for such
elective offices at any time prior to the date upon which he is to assume
office? It is plain that if the candidate can not qualify on election day as
to length of residence, age, or other requirement which can only be met
by time, he would be ineligible to hold office, and the court or any other
deciding power could very well decide immediately after the election that
he was ineligible. But there is at least one qualification (the payment of
taxes) which he is not required to meet on election day, and as to which
he may qualify at any time prior to the date fixed for assuming office. As
to the disqualifications mentioned in section 1 of Act No. 1768, any or all
of these may be removed between the date of the election and the date
fixed for assuming office. The removal of these, in so far as his criminal
record may be concerned, depends upon executive clemency; while
removal of the disqualification of the habitual use of opium depends
upon the candidate himself. There are, then, cases relating to the
eligibility of a person to hold the office as to which the Courts of First
Instance, in the exercise of their special powers, cannot render a final
and conclusive decision. Counsel does not suggest, nor it is hardly
necessary to negative, the proposition that the powers conferred by
section 27 are capable of exercise upon a motion presented two weeks
after the election. If any question concerning an election cannot,
because of its nature, be finally and conclusively determined under the
court's special powers, it follows that such a question should not be
considered at all, because not being within the jurisdiction conferred,
which is, as to the subject matter, final and conclusive.
All election disputes may be divided into two distinct classes: (!) those
which pertain to the casting and counting of the ballots; and (2) those
which pertain to the eligibility of the candidates. If there be cases
incapable of being so classified, they have not been suggested. Those
parts of section 27 [Act No. 1582 as amended by Act No. 2170],
indicative of the kind of contests which are to be determined under its
provisions, read:
Such court (of First Instance) shall have exclusive and final
jurisdiction except as hereinafter provided, and shall forthwith
cause the registry lists and all ballots used at such election to
be brought before it and examined, and to appoint the
necessary officers therefor and to fix their compensation, . . .
xxx xxx xxx
In such proceedings the registry list as finally corrected by the
board of inspectors shall be conclusive as to who was entitled
to vote at such election.
These very words indicate the character of the election disputes which
Courts of First Instance are empowered to decide under this provision
of law. Contests which cannot be decided by an examination of the
registry lists and of the ballots, and evidence of fraud and irregularity in
connection with the manner of casting and courting the votes, must be
included in the phrase "for the determination of which provision has not
been otherwise made" which appears near the beginning of the section.
If the nature of the evidence upon which the eligibility (qualifications) of
a person to hold office must be decided is considered, it will be sent that
such evidence has nothing to do with the manner of casting and counting
the votes. To what purpose would be the examination of registry lists
and ballots by officers appointed and paid for that purpose in determining
the eligibility of a successful candidate for office? The eligibility of a
person to be elected to a provincial or municipal office depends upon his
qualifications as a voter, his residence, his allegiance to the United
States, his age, the absence of disqualifications inflicted by the courts
by way of punishment, etc. That is, these qualifications and
disqualifications do not depend upon the conduct of election inspectors,
the illegal trafficking in votes, the method of casting and counting the
ballots, or the election returns. The evidence required to establish such
qualifications or disqualifications would not aid in any way in determining
the questions relating to he manner of casting and counting the ballots. E
converso, would the examination of ballots aid in arriving at a decision
as to his eligibility. There is nothing section to indicate that the court shall
40
receive or consider evidence as to the personal character or
circumstances of candidates.
Again, the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections is quite different from
that produced by declaring a person ineligible to hold such an
office.1awphil.net In the former case the court, after an examination of
the ballots may find that some other person than the candidate declared
to have received a plurarity by the board of canvassers actually received
the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly;
or it may find that the manner of holding the election and the returns are
so tainted with fraud or illegality that it cannot be determined who
received a plurarity of the legally cast ballots. In the latter case, no
question as to the correctness of the returns or the manner of casting
and counting the ballots is before the deciding power, and generally the
only result can be that the election fails entirely. In the former, we have
a contest in the strict sense of the word, because of the opposing parties
are striving for supremacy. If it be found that the successful candidate
(according to the board of canvassers) obtained a plurality in an illegal
manner, and that another candidate was the real victor, the former must
retire in favor of the latter. In the other case, there is not, strictly
speaking, a contest, as the wreath of victory cannot be transferred from
an ineligible candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally cast ballots. In
the one case the question is as to who received a plurality of the legally
cast ballots; in the other, the question is confined to the personal
character and circumstances of a single individual.
Applying the familiar principle of ejusdem generis, we hold that
jurisdiction under this section is limited to those matters which may be
decided by an inspection of the registry list and of the ballots and
their res gestae. (Sutherland, Sta. Const., par. 268 at seq; Sedgwick, id.,
360; 36 Cyc., 1119.)
The utmost care must be exercised in the citation of authorities in
support of any particular contention in the interpretation of election laws.
They are universally statutory and seldom similar in the matter of
election controversies. A single statutory or constitutional provision, may
render worthless as an authority the best considered case coming form
some other jurisdiction on the point under discussion. We have,
however, the satisfaction of knowing that the Supreme Court of Illinois
in two decisions in which the very question in the case at bar was at
issue, adopted the view we take of this case. The provisions of the Illinois
law reads:
The county court shall hear and determine contest of election
of all other county, township and precinct officers, and all other
officers for the contesting of whose election no provision is
made. (Starr and Curtiss' Ann. Ill. Statutes, 1661, par.
98.)1awphil.net
In Greenwood vs. Murphy (131 Ill., 604), the court said:
We think that the statute limits the power of the county court to contests
of elections. That court has no other or further jurisdiction than to
determine which of the contestants has been duly elected. The question
whether or not a party already elected possesses the necessary
qualifications for the office is one which must be determined in another
way and by a different proceeding.
Where it is claimed that such an one unlawfully holds an office
by reason of his lack of a legal qualification therefore, his right
should be determined by information in the nature of quo
warranto in the name of the people of the State.
This doctrine was reaffirmed and the earlier case cited with approval in
the late case of Edgcomb vs. Wylie (248 Ill. (1911), 602).
In Castro vs. Wislizenus (12 Phil. Rep., 468), Vicente Sotto received six
hundred and fifty votes and Martin Llorente four hundred and eighty-
three votes for the municipal president of Cebu. Llorente protested the
election upon the sole ground that Sotto was ineligible to be elected to
the office of municipal president in that he was then under a sentence of
four years and two months of prision correccional for the crime of
abduction. This was (by Sotto himself) a nonremovable disqualification
which not only rendered him ineligible to be elected, but also ineligible
to hold the office. The question squarely presented to the court below
was whether or not it had the power, under section 27 of the Election
law to pass upon the eligibility of Sotto, who had received a plurality of
the legally cast ballots. In disposing of the case, this court said:
In the present case the court below had nothing to decide in
the matter of the scrutiny of the ballots, and nothing was asked
for in the motion with respect to the operations showing the
true and lawful result of the election for the office of municipal
president of Cebu; in proof thereof, the contending parties
admit that the result of the scrutiny was lawful and correct; so
that it is not a matter of rectifying the examination of the ballots
so as to accord with the facts resulting from the proofs offered
at the trial held by virtue of the protest, nor is it a case of a
void election that should be referred to the Governor-General.
The whole of the question submitted to the court below is the
status of the party who obtained the majority of votes, that is,
whether the election of a person sentenced to four years
of prision correccional should be confirmed or not, and by
none of the sections of the Election Law is this question
submitted to the jurisdiction of the Court of First Instance.
In a republican form of the government, where a considerable number
of the public servants received there appointments directly from the
people in what are technically termed elections, it is only natural that
controversies over who has thus been appointed to a particular office
should arise with more frequency than they do in more centralized forms
of government, and are more difficult to dispose of. Obviously, it is highly
in expedient and expensive to refer such question to the appointing
power (the people), and they must, if possible, be decided by some more
expeditious and economical method. To provide the means of disposing
of these controversies quickly and cheaply, and in a way that will be
reasonably certain to discover and declare the sacred will of the majority,
is the task of legislators. In meeting these exacting requirements, the
Philippine Legislature has covered the field by enacting appropriate
legislation. It has established special tribunals with exclusive and final
jurisdiction, by which the most vexations controversies, those relating to
the manner of casting and counting the ballots, may be expeditiously
settled. It has provided for the further elimination of unnecessary and
tiresome delays by clothing administrative officers of the government
with power to remove for ineligibility candidates elect during the same
interval of time. Confusion and uncertainty as to the results of an election
are thus reduced to a minimum, and the return to political repose, so
necessary to economic progress, is hastened.
The findings of the special tribunals above mentioned, acting within their
jurisdictional powers, are final and conclusive. The return of the
canvassing board as corrected in accordance with the findings of these
special tribunals are final and conclusive upon all departments of the
government and upon all interested parties, as to who received a
plurality of the legally cast ballots. But those administrative proceedings,
authorized by law for the determination of the eligibility of candidates
elect, while conclusive upon the administrative branch of the
government, are not exclusive as to the courts. They do not abridge the
right to the remedy of quo warranto.
For the foregoing reasons, we are of the opinion and so hold that the
respondent judge exceeded his jurisdiction in declaring in those
proceedings that no one was elect municipal president of the
municipality of Imus at the last general election; and that said order and
all subsequent proceedings based thereon are null and void and of no
effect; and, although this decision is rendered on respondents' answer
to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without
costs. So ordered.
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
41
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE
VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B.
FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties' dispute. While the
significant issues are many, the jugular issue involves the relationship
between the ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the
crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year term commencing
on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a
plethora of problems that slowly but surely eroded his popularity. His
sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went
on air and accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next day, October
5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority
Leader, took the floor and delivered a fiery privilege speech entitled "I
Accuse." He accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from November 1998 to
August 2000. He also charged that the petitioner took from Governor
Singson P70 million on excise tax on cigarettes intended for Ilocos Sur.
The privilege speech was referred by then Senate President Franklin
Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino
Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo Golez,
decided to investigate the exposẻ of Governor Singson. On the other
hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of
the Presbyteral Council of the Archdiocese of Manila, asking petitioner
to step down from the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic Bishops
Conference of the Philippines joined the cry for the resignation of the
petitioner.4 Four days later, or on October 17, former President Corazon
C. Aquino also demanded that the petitioner take the "supreme self-
sacrifice" of resignation.5 Former President Fidel Ramos also joined the
chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later
asked for petitioner's resignation.7 However, petitioner strenuously held
on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip. 8 On
November 2, Secretary Mar Roxas II also resigned from the Department
of Trade and Industry.9 On November 3, Senate President Franklin
Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang
Pilipino.10
The month of November ended with a big bang. In a tumultuous session
on November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all
the members of the House of Representatives to the Senate. This
caused political convulsions in both houses of Congress. Senator Drilon
was replaced by Senator Pimentel as Senate President. Speaker Villar
was unseated by Representative Fuentebella.12 On November 20, the
Senate formally opened the impeachment trial of the petitioner. Twenty-
one (21) senators took their oath as judges with Supreme Court Chief
Justice Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On
December 7, the impeachment trial started. 14 The battle royale was
fought by some of the marquee names in the legal profession. Standing
as prosecutors were then House Minority Floor Leader Feliciano
Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio
Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan
Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary
of Justice Hernando Perez and now Solicitor General Simeon Marcelo.
Serving as defense counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito P. Mendoza,
former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of
the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty.
Raymund Fortun. The day to day trial was covered by live TV and during
its course enjoyed the highest viewing rating. Its high and low points
were the constant conversational piece of the chattering classes. The
dramatic point of the December hearings was the testimony of Clarissa
Ocampo, senior vice president of Equitable-PCI Bank. She testified that
she was one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500 million
investment agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in
the spirit of Christmas. When it resumed on January 2, 2001, more
bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took
the witness stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name
"Jose Velarde." The public and private prosecutors walked out in protest
of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous
outburst of anger that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11)
senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation of the
public prosecutors. Chief Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed
a human chain from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the people's solidarity in
demanding petitioner's resignation. Students and teachers walked out of
their classes in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the physics of
persuasion, attracted more and more people.21
42
On January 19, the fall from power of the petitioner appeared inevitable.
At 1:20 p.m., the petitioner informed Executive Secretary Edgardo
Angara that General Angelo Reyes, Chief of Staff of the Armed Forces
of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a
candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of
National Defense Orlando Mercado and General Reyes, together with
the chiefs of all the armed services went to the EDSA Shrine. 22 In the
presence of former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes declared that "on
behalf of Your Armed Forces, the 130,000 strong members of the Armed
Forces, we wish to announce that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General Panfilo Lacson
and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their
25
posts. Rallies for the resignation of the petitioner exploded in various
parts of the country. To stem the tide of rage, petitioner announced he
was ordering his lawyers to agree to the opening of the highly
controversial second envelope.26There was no turning back the tide. The
tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first
round of negotiations for the peaceful and orderly transfer of power
started at Malacañang'' Mabini Hall, Office of the Executive Secretary.
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying
Remulla, and Atty. Macel Fernandez, head of the Presidential
Management Staff, negotiated for the petitioner. Respondent Arroyo
was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice
Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in
stone-throwing and caused minor injuries. The negotiations consumed
all morning until the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at the EDSA
Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.28 At 2:30 p.m.,
petitioner and his family hurriedly left Malacañang Palace.29 He issued
the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of
our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as President,
I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the
seat of the presidency of this country, for the sake of peace
and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities
given to me for service to our people. I will not shirk from any
future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in to
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the
following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I
am unable to exercise the powers and duties of my office. By
operation of law and the Constitution, the Vice-President shall
be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m.
on January 20.23 Another copy was transmitted to Senate President
Pimentel on the same day although it was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the
same day, this Court issued the following Resolution in Administrative
Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice President
Gloria Macapagal-Arroyo to Take her Oath of Office as
President of the Republic of the Philippines before the Chief
Justice — Acting on the urgent request of Vice President
Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice
and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter,
the court Resolve unanimously to confirm the authority given
by the twelve (12) members of the Court then present to the
Chief Justice on January 20, 2001 to administer the oath of
office of Vice President Gloria Macapagal-Arroyo as President
of the Philippines, at noon of January 20, 2001.1âwphi1.nêt
This resolution is without prejudice to the disposition of any
justiciable case that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On January 23, in
a reception or vin d' honneur at Malacañang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent a
telephone call from the White House conveying US recognition of her
government.36
On January 24, Representative Feliciano Belmonte was elected new
Speaker of the House of Representatives.37The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved
Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under
the Constitution."39
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the
Political Advertising ban and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.42 The next day, February 7, the
Senate adopted Resolution No. 82 confirming the nomination of Senator
Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason
therefor the pending challenge on the legitimacy of respondent Arroyo's
presidency before the Supreme Court. Senators Teresa Aquino-Oreta
and Robert Barbers were absent.44 The House of Representatives also
approved Senator Guingona's nomination in Resolution No.
43
178.45 Senator Guingona, Jr. took his oath as Vice President two (2)
days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio and has been
terminated.47 Senator Miriam Defensor-Santiago stated "for the record"
that she voted against the closure of the impeachment court on the
grounds that the Senate had failed to decide on the impeachment case
and that the resolution left open the question of whether Estrada was
still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
public acceptance rating jacked up from 16% on January 20, 2001 to
38% on January 26, 2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of
petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon,
by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass class,
and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the
Office of the Ombudsman were set in motion. These are: (1) OMB Case
No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by
the Volunteers Against Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government
Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free
Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4)
OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on
November 28, 2000 for malversation of public funds, illegal use of public
funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by
Leonard de Vera, et al., on November 28, 2000 for bribery, plunder,
indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080;
and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent
Ombudsman to investigate the charges against the petitioner. It is
chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor
Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On
January 22, the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as other
supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner
filed with this Court GR No. 146710-15, a petition for prohibition with a
prayer for a writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until after the term
of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment "confirming petitioner to be the lawful
and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office, and declaring respondent to
have taken her oath as and to be holding the Office of the President,
only in an acting capacity pursuant to the provisions of the Constitution."
Acting on GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents "to comment thereon within a non-extendible
period expiring on 12 February 2001." On February 13, the Court
ordered the consolidation of GR Nos. 146710-15 and GR No. 146738
and the filing of the respondents' comments "on or before 8:00 a.m. of
February 15."
On February 15, the consolidated cases were orally argued in a four-
hour hearing. Before the hearing, Chief Justice Davide, Jr. 51 and
Associate Justice Artemio Panganiban52 recused themselves on motion
of petitioner's counsel, former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that they have "compromised
themselves by indicating that they have thrown their weight on one side"
but nonetheless inhibited themselves. Thereafter, the parties were given
the short period of five (5) days to file their memoranda and two (2) days
to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies
of resolution and press statement for "Gag Order" on respondent
Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court
resolved:
"(1) to inform the parties that the Court did not issue a
resolution on January 20, 2001 declaring the office of the
President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are
officers of the Court under pain of being cited for contempt to
refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision
by the Court, and
(3) to issue a 30-day status quo order effective immediately
enjoining the respondent Ombudsman from resolving or
deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases
at bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases
at bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at
bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy,
whether petitioner Estrada is a President on leave while
respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a
condition precedent for the criminal prosecution of petitioner
Estrada. In the negative and on the assumption that petitioner
is still President, whether he is immune from criminal
prosecution.
IV
Whether the prosecution of petitioner Estrada should be
enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar
pose a political question, and hence, are beyond the jurisdiction of this
Court to decide. They contend that shorn of its embroideries, the cases
at bar assail the "legitimacy of the Arroyo administration." They stress
that respondent Arroyo ascended the presidency through people power;
44
that she has already taken her oath as the 14th President of the Republic;
that she has exercised the powers of the presidency and that she has
been recognized by foreign governments. They submit that these
realities on ground constitute the political thicket, which the Court cannot
enter.
We reject private respondents' submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its exact
latitude still splits the best of legal minds. Developed by the courts in the
20th century, the political question doctrine which rests on the principle
of separation of powers and on prudential considerations, continue to be
refined in the mills of constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v.
Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of
deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from
the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence.
The doctrine of which we treat is one of 'political questions',
not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted
with cases calling for a firmer delineation of the inner and outer
perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto
Concepcion, held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great degree,
the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of government.59 Heretofore, the judiciary has focused on the "thou
shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision
did not just grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the 1987 Constitution
trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language
to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ (of habeas corpus) or the
extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C.
Aquino, et al.61 and related cases62 to support their thesis that since the
cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral reading
of the cited cases will show that they are inapplicable. In the cited cases,
we held that the government of former President Aquino was the result
of a successful revolution by the sovereign people, albeit a peaceful
one. No less than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of
a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits out of
the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that
she took at the EDSA Shrine is the oath under the 1987 Constitution.64 In
her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA
People Power II is clear. EDSA I involves the exercise of the people
power of revolution which overthrew the whole government. EDSA
II is an exercise of people power of freedom of speech and freedom
of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I
is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are
subject to judicial review. EDSA I presented a political question;
EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government for
redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos.
Denial of these rights was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal, raised the clarion call
for the recognition of freedom of the press of the Filipinos and included
it as among "the reforms sine quibus non."65 The Malolos Constitution,
which is the work of the revolutionary Congress in 1898, provided in its
Bill of Rights that Filipinos shall not be deprived (1) of the right to freely
express his ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association for purposes
of human life and which are not contrary to public means; and (3) of the
right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the
Instruction to the Second Philippine Commission of April 7, 1900 issued
by President McKinley, it is specifically provided "that no law shall be
passed abridging the freedom of speech or of the press or of the rights
of the people to peaceably assemble and petition the Government for
redress of grievances." The guaranty was carried over in the Philippine
Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of
Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935
Constitution,67 and the 197368 Constitution. These rights are now
safely ensconced in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government
for redress of grievances."
The indispensability of the people's freedom of speech and of assembly
to democracy is now self-evident. The reasons are well put by Emerson:
first, freedom of expression is essential as a means of assuring
individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for
participation in decision-making by all members of society; and fourth, it
is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy
cleavage and necessary consensus."69 In this sense, freedom of
speech and of assembly provides a framework in which the
"conflict necessary to the progress of a society can take place
without destroying the society."70In Hague v. Committee for
Industrial Organization,71 this function of free speech and assembly
was echoed in the amicus curiae filed by the Bill of Rights Committee of
the American Bar Association which emphasized that "the basis of the
right of assembly is the substitution of the expression of opinion and
belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v.
45
Sandiganbayan,73 this Court similar stressed that "… it should be clear
even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a
democracy, it is the people who count; those who are deaf to their
grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions.
The principal issues for resolution require the proper interpretation of
certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The issues likewise call for a
ruling on the scope of presidential immunity from suit. They also involve
the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,77 the
doctrine has been laid down that "it is emphatically the province and
duty of the judicial department to say what the law is . . ." Thus,
respondent's in vocation of the doctrine of political question is but a foray
in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this
issue as posing a political question. Indeed, it involves a legal question
whose factual ingredient is determinable from the records of the case
and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant when respondent
Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article
VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from
office or resignation of the President, the Vice President shall
become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or
resignation of both the President and Vice President, the
President of the Senate or, in case of his inability, the Speaker
of the House of Representatives, shall then act as President
until the President or Vice President shall have been elected
and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should
be considered resigned as of January 20, 2001 when respondent took
her oath as the 14th President of the Public. Resignation is not a high
level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent
must be coupled by acts of relinquishment.78 The validity of a
resignation is not government by any formal requirement as to form. It
can be oral. It can be written. It can be express. It can be implied. As
long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacañang Palace in the
afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his act and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior
facts and circumstantial evidence bearing a material relevance on
the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the
petitioner, it is important to follow the succession of events after the
exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate against
him. The Articles of Impeachment filed in the House of Representatives
which initially was given a near cipher chance of succeeding snowballed.
In express speed, it gained the signatures of 115 representatives or
more than 1/3 of the House of Representatives. Soon, petitioner's
powerful political allies began deserting him. Respondent Arroyo quit as
Secretary of Social Welfare. Senate President Drilon and former
Speaker Villar defected with 47 representatives in tow. Then, his
respected senior economic advisers resigned together with his
Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call for
his resignation intensified. The call reached a new crescendo when the
eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the
night of January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.
As events approached January 20, we can have an authoritative window
on the state of mind of the petitioner. The window is provided in the
"Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary
Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary
reveals that in the morning of January 19, petitioner's loyal advisers were
worried about the swelling of the crowd at EDSA, hence, they decided
to create an ad hoc committee to handle it. Their worry would worsen.
At 1:20 p.m., petitioner pulled Secretary Angara into his small office at
the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas
na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)" 80 An
hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would
not be a candidate is an indicium that petitioner had intended to
give up the presidency even at that time. At 3:00 p.m., General Reyes
joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFP's withdrawal of support
from the petitioner and their pledge of support to respondent Arroyo. The
seismic shift of support left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option of "dignified exit or resignation."81 Petitioner did
not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the
urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would be allowed to go abroad with
enough funds to support him and his family.83 Significantly, the
petitioner expressed no objection to the suggestion for a graceful
and dignified exit but said he would never leave the country.84 At
10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace."85 This
is proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President
Ramos called up Secretary Angara and requested, "Ed, magtulungan
tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request.
Secretary Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful Saturday.
The negotiation was limited to three (3) points: (1) the transition period
of five days after the petitioner's resignation; (2) the guarantee of the
safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner. 87 Again, we
note that the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and
the following entry in the Angara Diary shows the reaction of the
petitioner, viz:
"x x x
I explain what happened during the first round of negotiations.
The President immediately stresses that he just wants the
46
 five-day period promised by Reyes, as well as to open the
second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will
leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na
masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any
more of this – it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has
resigned. The intent to resign is clear when he said "x x x Ayoko
na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms.
Macapagal's spokesperson) Rene Corona. For this round, I
am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the
day, 20 January 2001, that will be effective on Wednesday, 24
January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process
for the assumption of the new administration shall commence,
and persons designated by the Vice President to various
positions and offices of the government shall start their
orientation activities in coordination with the incumbent
officials concerned.
3. The Armed Forces of the Philippines and the Philippine
National Police shall function under the Vice President as
national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of
Staff, shall guarantee the security of the President and his
family as approved by the national military and police authority
(Vice President).
5. It is to be noted that the Senate will open the second
envelope in connection with the alleged savings account of
the President in the Equitable PCI Bank in accordance with
the rules of the Senate, pursuant to the request to the Senate
President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24
January 2001, at which time President Joseph Ejercito
Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
'2. In return, President Estrada and his families are
guaranteed security and safety of their person and property
throughout their natural lifetimes. Likewise, President Estrada
and his families are guarantee freedom from persecution or
retaliation from government and the private sector throughout
their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of
the Philippines (AFP) through the Chief of Staff, as approved
by the national military and police authorities – Vice President
(Macapagal).
'3. Both parties shall endeavor to ensure that the Senate
sitting as an impeachment court will authorize the opening of
the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President
Estrada.
'4. During the five-day transition period between 20 January
2001 and 24 January 2001 (the 'Transition Period"), the
incoming Cabinet members shall receive an appropriate
briefing from the outgoing Cabinet officials as part of the
orientation program.
During the Transition Period, the AFP and the Philippine
National Police (PNP) shall function Vice President
(Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as
affixed to this agreement and insure faithful implementation
and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in "Annex A"
heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of
negotiation, the resignation of the petitioner was again treated as a given
fact. The only unsettled points at that time were the measures to be
undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was
premised on the resignation of the petitioner was further refined. It was
then, signed by their side and he was ready to fax it to General Reyes
and Senator Pimentel to await the signature of the United Opposition.
However, the signing by the party of the respondent Arroyo was aborted
by her oath-taking. The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself, there is a
firm agreement on the five points to effect a peaceful
transition. I can hear the general clearing all these points with
a group he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20
January 2001, which resignation shall be effective on 24
January 2001, on which day the Vice President will assume
the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new
administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various
government positions shall start orientation activities with
incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of
Staff, shall guarantee the safety and security of the President
47
and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.
'4. The AFP and the Philippine National Police (PNP) shall
function under the Vice President as national military and
police authorities.
'5. Both parties request the impeachment court to open the
second envelope in the impeachment trial, the contents of
which shall be offered as proof that the subject savings
account does not belong to the President.
The Vice President shall issue a public statement in the form
and tenor provided for in Annex "B" heretofore attached to this
agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene
Pimentel our agreement, signed by our side and awaiting the
signature of the United opposition.
And then it happens. General Reyes calls me to say that the
Supreme Court has decided that Gloria Macapagal-Arroyo is
President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang
agreement (why couldn't you wait? What about the
agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir
(yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and say that
there was a double cross.
But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic.
Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon
and Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to
General Reyes for the signatures of the other side, as it is
important that the provisions on security, at least, should be
respected.
I then advise the President that the Supreme Court has ruled
that Chief Justice Davide will administer the oath to Gloria at
12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the Republic
of the Philippines.
12:20 p.m. – The PSG distributes firearms to some people
inside the compound.
The president is having his final meal at the presidential
Residence with the few friends and Cabinet members who
have gathered.
By this time, demonstrators have already broken down the
first line of defense at Mendiola. Only the PSG is there to
protect the Palace, since the police and military have already
withdrawn their support for the President.
1 p.m. – The President's personal staff is rushing to pack as
many of the Estrada family's personal possessions as they
can.
During lunch, Ronnie Puno mentions that the president needs
to release a final statement before leaving Malacañang.
The statement reads: At twelve o'clock noon today, Vice
President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the
seat of the presidency of this country, for the sake of peace
and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities
given to me for service to our people. I will not shirk from any
future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted.
It was confirmed by his leaving Malacañang. In the press release
containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation about
its legality; (2) he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the healing
process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as
soon as the disability disappears: (3) he expressed his gratitude to the
people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come
ahead in the same service of our country. Petitioner's reference is to a
future challenge after occupying the office of the president which he has
given up; and (5) he called on his supporters to join him in the promotion
of a constructive national spirit of reconciliation and solidarity. Certainly,
the national spirit of reconciliation and solidarity could not be attained if
he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the part
tense.
It is, however, urged that the petitioner did not resign but only took a
temporary leave dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to
the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I
am unable to exercise the powers and duties of my office. By
operation of law and the Constitution, the Vice President shall
be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings
filed by the petitioner in the cases at bar did not discuss, may even
intimate, the circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these circumstances during
the oral argument. It strikes the Court as strange that the letter, despite
its legal value, was never referred to by the petitioner during the week-
48
long crisis. To be sure, there was not the slightest hint of its existence
when he issued his final press release. It was all too easy for him to tell
the Filipino people in his press release that he was temporarily unable
to govern and that he was leaving the reins of government to respondent
Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly as a later act.
If, however, it was prepared after the press released, still, it commands
scant legal significance. Petitioner's resignation from the presidency
cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people.
There is another reason why this Court cannot given any legal
significance to petitioner's letter and this shall be discussed in issue
number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he
also argues that he could not resign as a matter of law. He relies on
section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire
pending an investigation, criminals or administrative, or
pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on
bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any
comfort to the petitioner. RA No. 3019 originated form Senate Bill No.
293. The original draft of the bill, when it was submitted to the Senate,
did not contain a provision similar to section 12 of the law as it now
stands. However, in his sponsorship speech, Senator Arturo Tolentino,
the author of the bill, "reserved to propose during the period of
amendments the inclusion of a provision to the effect that no public
official who is under prosecution for any act of graft or corruption, or is
under administrative investigation, shall be allowed to voluntarily resign
or retire."92 During the period of amendments, the following provision
was inserted as section 15:
"Sec. 15. Termination of office – No public official shall be
allowed to resign or retire pending an investigation, criminal
or administrative, or pending a prosecution against him, for
any offense under the Act or under the provisions of the
Revised Penal Code on bribery.
The separation or cessation of a public official form office shall
not be a bar to his prosecution under this Act for an offense
committed during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who questioned
the legality of the second paragraph of the provision and insisted that
the President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the
new bill, but the deliberations on this particular provision mainly focused
on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition
against the resignation or retirement of a public official with pending
criminal and administrative cases against him. Be that as it may, the
intent of the law ought to be obvious. It is to prevent the act of resignation
or retirement from being used by a public official as a protective shield
to stop the investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal Code. To be sure, no
person can be compelled to render service for that would be a violation
of his constitutional right.94 A public official has the right not to serve if
he really wants to retire or resign. Nevertheless, if at the time he resigns
or retires, a public official is facing administrative or criminal investigation
or prosecution, such resignation or retirement will not cause the
dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected.
In the cases at bar, the records show that when petitioner resigned on
January 20, 2001, the cases filed against him before the Ombudsman
were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent
Ombudsman refrained from conducting the preliminary investigation of
the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered
as pending for the Ombudsman lacked jurisdiction to act on them.
Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner
for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of
a sitting President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars him
from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time
petitioner resigned because the process already broke down when a
majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and
the proceedings were postponed indefinitely. There was, in effect, no
impeachment case pending against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as
President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the presidency,
and hence is a President on leave. As aforestated, the inability claim is
contained in the January 20, 2001 letter of petitioner sent on the same
day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no
power to adjudge the inability of the petitioner to discharge the powers
and duties of the presidency. His significant submittal is that "Congress
has the ultimate authority under the Constitution to determine whether
the President is incapable of performing his functions in the manner
provided for in section 11 of article VII."95 This contention is
the centerpiece of petitioner's stance that he is a President on leave
and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President
of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President
as Acting President.
Whenever a majority of all the Members of the Cabinet
transmit to the President of the Senate and to the Speaker of
the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the
powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of
the Senate and to the Speaker of the House of
Representatives his written declaration that no inability exists,
he shall reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the
Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to
discharge the powers and duties of his office, the Congress
shall decide the issue. For that purpose, the Congress shall
49
 convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice-
President shall act as President; otherwise, the President
shall continue exercising the powers and duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above
letter claiming inability to the Senate President and
Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her
oath of office as President on January 20, 2001 at
about 12:30 p.m.;
3. Despite receipt of the letter, the House of
Representatives passed on January 24, 2001
House Resolution No. 175;96
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE
HOUSE OF REPRESENTATIVES TO THE ASSUMPTION
INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND
EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S
GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of
confidence on the ability of former President Joseph Ejercito
Estrada to effectively govern, the Armed Forces of the
Philippines, the Philippine National Police and majority of his
cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the
Supreme Court, Vice President Gloria Macapagal-Arroyo was
sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the
international community had extended their recognition to Her
Excellency, Gloria Macapagal-Arroyo as President of the
Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has espoused a policy of national healing and
reconciliation with justice for the purpose of national unity and
development;
WHEREAS, it is axiomatic that the obligations of the
government cannot be achieved if it is divided, thus by reason
of the constitutional duty of the House of Representatives as
an institution and that of the individual members thereof of
fealty to the supreme will of the people, the House of
Representatives must ensure to the people a stable,
continuing government and therefore must remove all
obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of
Representatives to exert all efforts to unify the nation, to
eliminate fractious tension, to heal social and political wounds,
and to be an instrument of national reconciliation and
solidarity as it is a direct representative of the various
segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for
the attainment of all the foregoing, for the House of
Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria
Macapagal-Arroyo, and to be a constructive partner in nation-
building, the national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To express its
support to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its
support for her administration as a partner in the attainment of
the Nation's goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House
Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice
President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the
Constitution, the President in the event of such vacancy shall
nominate a Vice President from among the members of the
Senate and the House of Representatives who shall assume
office upon confirmation by a majority vote of all members of
both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona Jr., to the position of Vice President of the Republic
of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public
servant endowed with integrity, competence and courage;
who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses
sterling qualities of true statesmanship, having served the
government in various capacities, among others, as Delegate
to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of
Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic:
Now, therefore, be it
Resolved as it is hereby resolved by the House of
Representatives, That the House of Representatives confirms
the nomination of Senator Teofisto T. Guingona, Jr. as the
Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
50
This Resolution was adopted by the House of
Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability,
some twelve (12) members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the
nation an opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome
awesome challenges the nation needs unity of purpose and
resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum
for vital legislative measures in unity despite diversities in
perspectives;
WHEREFORE, we recognize and express support to the new
government of President Gloria Macapagal-Arroyo and
resolve to discharge and overcome the nation's
challenges." 99
On February 7, the Senate also passed Senate Resolution
No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice
President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the
Constitution, the President in the event of such vacancy shall
nominate a Vice President from among the members of the
Senate and the House of Representatives who shall assume
office upon confirmation by a majority vote of all members of
both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona, Jr. to the position of Vice President of the Republic
of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
endowed with integrity, competence and courage; who has
served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling
qualities of true statemanship, having served the government
in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on
Audit, Executive Secretary, Secretary of Justice, Senator of
the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm
the nomination of Sen. Teofisto T. Guingona, Jr. as Vice
President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7,
2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise
passed Senate Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT
COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize
that the Impeachment Court is functus officioand has been
terminated.
Resolved, further, That the Journals of the Impeachment
Court on Monday, January 15, Tuesday, January 16 and
Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court
including the "second envelope" be transferred to the Archives
of the Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate. Disposition and
retrieval thereof shall be made only upon written approval of
the Senate president.
Resolved, finally. That all parties concerned be furnished
copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7,
2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No.
84 "certifying to the existence of vacancy in the Senate and calling on
the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth (13th) highest number of
votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability to
govern is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that the
inability of petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the
claim of temporary inability of petitioner Estrada and
thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the
Philippines. Following Tañada v. Cuenco,102 we hold that this Court
cannot exercise its judicial power or this is an issue "in regard to which
full discretionary authority has been delegated to the Legislative xxx
branch of the government." Or to use the language in Baker vs.
51
Carr,103 there is a "textually demonstrable or a lack of judicially
discoverable and manageable standards for resolving it." Clearly, the
Court cannot pass upon petitioner's claim of inability to discharge the
power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a
political issue, which cannot be decided by this Court without
transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still,
he cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against
him before the respondent Ombudsman should be prohibited because
he has not been convicted in the impeachment proceedings against him;
and second, he enjoys immunity from all kinds of suit, whether
criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history
executive immunity will be most enlightening. The doctrine of executive
immunity in this jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent
Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-
General of the Philippine Islands. J.E. Harding and C.R. Trowbridge,
Chief of Police and Chief of the Secret Service of the City of Manila,
respectively, for damages for allegedly conspiring to deport him to
China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not
mean that the judiciary has no authority to touch the acts of
the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a
construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying
rights of person and of property, wholly free from interference
of courts or legislatures. This does not mean, either that a
person injured by the executive authority by an act
unjustifiable under the law has n remedy, but must submit in
silence. On the contrary, it means, simply, that the governors-
general, like the judges if the courts and the members of the
Legislature, may not be personally mulcted in civil damages
for the consequences of an act executed in the performance
of his official duties. The judiciary has full power to, and will,
when the mater is properly presented to it and the occasion
justly warrants it, declare an act of the Governor-General
illegal and void and place as nearly as possible in status quo
any person who has been deprived his liberty or his property
by such act. This remedy is assured to every person, however
humble or of whatever country, when his personal or property
rights have been invaded, even by the highest authority of the
state. The thing which the judiciary can not do is mulct the
Governor-General personally in damages which result from
the performance of his official duty, any more than it can a
member of the Philippine Commission of the Philippine
Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief
executive may not be personally sued at all in relation to acts
which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had,
particularly that portion which touched the liability of judges
and drew an analogy between such liability and that of the
Governor-General, that the latter is liable when he acts in a
case so plainly outside of his power and authority that he can
not be said to have exercised discretion in determining
whether or not he had the right to act. What is held here is that
he will be protected from personal liability for damages not
only when he acts within his authority, but also when he is
without authority, provided he actually used discretion and
judgement, that is, the judicial faculty, in determining whether
he had authority to act or not. In other words, in determining
the question of his authority. If he decide wrongly, he is still
protected provided the question of his authority was one over
which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to
act is so plain that two such men could not honestly differ over
its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer
for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief
Executive was not granted immunity from suit, viz"xxx. Action upon
important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the state and for the office he
occupies; a tendency to unrest and disorder resulting in a way, in distrust
as to the integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the martial
law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done
by him or by others pursuant to his specific orders during his
tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled,
"Presidential Immunity and All The King's Men: The Law of Privilege As
a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin,
brightened the modifications effected by this constitutional amendment
on the existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans
one better by enlarging and fortifying the absolute immunity
concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims.
Second, we enlarged its scope so that it would cover even
acts of the President outside the scope of official duties. And
third, we broadened its coverage so as to include not only the
President but also other persons, be they government officials
or private individuals, who acted upon orders of the President.
It can be said that at that point most of us were suffering from
AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The
move was led by them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency immunity granted
to President Marcos violated the principle that a public office is a public
trust. He denounced the immunity as a return to the anachronism "the
king can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When the
1987 Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The following explanation
was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting
in the draft proposal the immunity provision for the President.
I agree with Commissioner Nolledo that the Committee did
52
 very well in striking out second sentence, at the very least, of
the original provision on immunity from suit under the 1973
Constitution. But would the Committee members not agree to
a restoration of at least the first sentence that the President
shall be immune from suit during his tenure, considering that
if we do not provide him that kind of an immunity, he might be
spending all his time facing litigation's, as the President-in-
exile in Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it
understood in present jurisprudence that during his tenure he
is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that
explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any
more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout
of the prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he should first be impeached and
then convicted before he can be prosecuted. The plea if granted, would
put a perpetual bar against his prosecution. Such a submission has
nothing to commend itself for it will place him in a better situation than a
non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that
when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may
already be filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding
has been filed against the President, for example, and the
President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does
it affect the impeachment proceeding? Will it be necessarily
dropped?
Mr. Romulo. If we decide the purpose of impeachment to
remove one from office, then his resignation would render the
case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary
courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that
'incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua
non to his criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings. His reliance on the case of
Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for
they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner
as a non-sitting President. The cases filed against petitioner Estrada are
criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially
plunder which carries the death penalty, be covered by the alleged
mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for
unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not
acting as such but stands in the same footing as any trespasser. 114
Indeed, critical reading of current literature on executive immunity will
reveal a judicial disinclination to expand the privilege especially when it
impedes the search for truth or impairs the vindication of a right. In the
1974 case of US v. Nixon,115 US President Richard Nixon, a sitting
President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of
conspiracy to obstruct Justice and other offenses, which were committed
in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon
himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable
to judicial proceedings. The claim was rejected by the US Supreme
Court. It concluded that "when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of
criminal justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US
Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton v.
Jones117 where it held that the US President's immunity from suits for
money damages arising out of their official acts is inapplicable to
unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the
scope of executive immunity in our jurisdiction. One of the great themes
of the 1987 Constitution is that a public office is a public trust. 118 It
declared as a state policy that "the State shall maintain honesty and
integrity in the public service and take positive and effective measures
against graft and corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the
right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees,
shall not be barred by prescription, latches or estoppel."121 It maintained
the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we sustain
petitioner's claim that a non-sitting president enjoys immunity from suit
for criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against him
due to the barrage of prejudicial publicity on his guilt. He submits that
the respondent Ombudsman has developed bias and is all set file the
criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on
how to deal with the rain of unrestrained publicity during the investigation
and trial of high profile cases.125 The British approach the problem with
the presumption that publicity will prejudice a jury. Thus, English courts
readily stay and stop criminal trials when the right of an accused to fair
trial suffers a threat.126 The American approach is different. US courts
assume a skeptical approach about the potential effect of pervasive
53
publicity on the right of an accused to a fair trial. They have developed
different strains of tests to resolve this issue, i.e., substantial; probability
of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in
this Court to stop the trials or annul convictions in high profile criminal
cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the
right to impartial trial due to prejudicial publicity. It is true that
the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials.
Then and now, we rule that the right of an accused to a fair
trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial
for, as well pointed out, a responsible press has always been
regarded as the criminal field xxx. The press does not simply
publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors,
and judicial processes to extensive public scrutiny and
criticism.
Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The mere fact that the trial of appellant
was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial
judge and impaired his impartiality. For one, it is impossible to
seal the minds of members of the bench from pre-trial and
other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as
they happen straight to our breakfast tables and right to our
bedrooms. These news form part of our everyday menu of the
facts and fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out of touch with
the world. We have not installed the jury system whose
members are overly protected from publicity lest they lose
there impartially. xxx xxx xxx. Our judges are learned in the
law and trained to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on
the part of the trial judge due to the barrage of publicity that
characterized the investigation and trial of the case. In
Martelino, et al. v. Alejandro, et al., we rejected this standard
of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at a bar, the records do
not show that the trial judge developed actual bias against
appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge
acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented
during the trial. Appellant has the burden to prove this actual
bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb
vs. Hon. Raul de Leon, etc.130 and its companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on
their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while
undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments
in the telecommunications industry. For sure, few cases can
match the high volume and high velocity of publicity that
attended the preliminary investigation of the case at bar. Our
daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public
with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case – the NBI, the
respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses
and their threat to a fair trial notwithstanding, criminal trials
cannot be completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the
criminal trial in Anglo-American justice
demonstrates conclusively that at the time this
Nation's organic laws were adopted, criminal trials
both here and in England had long been
presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned
and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or
partiality. In addition, the significant community
therapeutic value of public trials was recognized
when a shocking crime occurs a community
reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve
an important prophylactic purpose, providing an
outlet for community concern, hostility and emotion.
To work effectively, it is important that society's
criminal process satisfy the appearance of justice,'
Offutt v. United States, 348 US 11, 14, 99 L ED 11,
75 S Ct 11, which can best be provided by allowing
people to observe such process. From this
unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must
be concluded that a presumption of openness
inheres in the very nature of a criminal trial under
this Nation's system of justice, Cf., e,g., Levine v.
United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
b. The freedoms of speech. Press and assembly,
expressly guaranteed by the First Amendment,
share a common core purpose of assuring freedom
of communication on matters relating to the
functioning of government. In guaranteeing
freedom such as those of speech and press, the
First Amendment can be read as protecting the right
of everyone to attend trials so as give meaning to
those explicit guarantees; the First Amendment
right to receive information and ideas means, in the
context of trials, that the guarantees of speech and
press, standing alone, prohibit government from
summarily closing courtroom doors which had long
been open to the public at the time the First
Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded
not only as an independent right but also as a
catalyst to augment the free exercise of the other
First Amendment rights with which the draftsmen
deliberately linked it. A trial courtroom is a public
place where the people generally and
representatives of the media have a right to be
present, and where their presence historically has
been thought to enhance the integrity and quality of
what takes place.
c. Even though the Constitution contains no provision
which be its terms guarantees to the public the right
to attend criminal trials, various fundamental rights,
not expressly guaranteed, have been recognized
as indispensable to the enjoyment of enumerated
54
 rights. The right to attend criminal trial is implicit in
the guarantees of the First Amendment: without the
freedom to attend such trials, which people have
exercised for centuries, important aspects of
freedom of speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused
of his due process right to fair trial. Thus, in Martelino, et al.
vs. Alejandro, et al., we held that to warrant a finding of
prejudicial publicity there must be allegation and proof that
the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, we
find nothing in the records that will prove that the tone and
content of the publicity that attended the investigation of
petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ Panel,
for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg
lights of publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and
the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting
from their bombardment of prejudicial publicity." (emphasis
supplied)
Applying the above ruling, we hold that there is not enough evidence
to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof. 131 He
needs to show more weighty social science evidence to successfully
prove the impaired capacity of a judge to render a bias-free decision.
Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors
in the office of the respondent Ombudsman. No allegation whatsoever
has been made by the petitioner that the minds of the members of this
special panel have already been infected by bias because of the
pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess
whether its recommendation will be unfavorable to the
petitioner.1âwphi1.nêt
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of slanted
news reports, and he has buckled to the threats and pressures directed
at him by the mobs."132 News reports have also been quoted to establish
that the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner
is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court especially
in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the
performance of official duty to which he is entitled. Nor can we adopt
the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give investigation
prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors. 134 They
can be reversed but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating prosecutors should not
be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the
latter believes that the findings of probable cause against him is the
result of bias, he still has the remedy of assailing it before the proper
court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to a new
stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of
teeth of the minority will be more threatening. It is the sacred duty of the
respondent Ombudsman to balance the right of the State to prosecute
the guilty and the right of an accused to a fair investigation and trial which
has been categorized as the "most fundamental of all freedoms." 135To
be sure, the duty of a prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the preliminary
investigation of the petitioner shall have a circus-free atmosphere. He
has to provide the restraint against what Lord Bryce calls "the impatient
vehemence of the majority." Rights in a democracy are not decided by
the mob whose judgment is dictated by rage and not by reason. Nor are
rights necessarily resolved by the power of number for in a democracy,
the dogmatism of the majority is not and should never be the definition
of the rule of law. If democracy has proved to be the best form of
government, it is because it has respected the right of the minority to
convince the majority that it is wrong. Tolerance of multiformity of
thoughts, however offensive they may be, is the key to man's progress
from the cave to civilization. Let us not throw away that key just to pander
to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada
challenging the respondent Gloria Macapagal-Arroyo as the de
jure 14th President of the Republic are DISMISSED.
SO ORDERED.
ARTURO M. TOLENTINO and ARTURO C. MOJICA, Petitioners,
vs.
COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and
SENATOR GREGORIO B. HONASAN,Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005
dated 5 June 2001 ("Resolution No. 01-005") and Resolution No. NBC
01-006 dated 20 July 2001 ("Resolution No. 01-006") of respondent
Commission on Elections ("COMELEC"). Resolution No. 01-005
proclaimed the 13 candidates elected as Senators in the 14 May 2001
elections while Resolution No. 01-006 declared "official and final" the
ranking of the 13 Senators proclaimed in Resolution No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001,
President Gloria Macapagal-Arroyo nominated then Senator Teofisto T.
Guingona, Jr. ("Senator Guingona") as Vice-President. Congress
confirmed the nomination of Senator Guingona who took his oath as
Vice-President on 9 February 2001.
Following Senator Guingona’s confirmation, the Senate on 8 February
2001 passed Resolution No. 84 ("Resolution No. 84") certifying to the
existence of a vacancy in the Senate. Resolution No. 84 called on
COMELEC to fill the vacancy through a special election to be held
simultaneously with the regular elections on 14 May 2001. Twelve
Senators, with a 6-year term each, were due to be elected in that
election.1 Resolution No. 84 further provided that the "Senatorial
candidate garnering the 13th highest number of votes shall serve only
55
for the unexpired term of former Senator Teofisto T. Guingona, Jr.,"
which ends on 30 June 2004.2
On 5 June 2001, after COMELEC had canvassed the election results
from all the provinces but one (Lanao del Norte), COMELEC issued
Resolution No. 01-005 provisionally proclaiming 13 candidates as the
elected Senators. Resolution No. 01-005 also provided that "the first
twelve (12) Senators shall serve for a term of six (6) years and the
thirteenth (13th) Senator shall serve the unexpired term of three (3)
years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
President."3 Respondents Ralph Recto ("Recto") and Gregorio Honasan
("Honasan") ranked 12th and 13th, respectively, in Resolution No. 01-
005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica
("petitioners"), as voters and taxpayers, filed the instant petition for
prohibition, impleading only COMELEC as respondent. Petitioners
sought to enjoin COMELEC from proclaiming with finality the candidate
for Senator receiving the 13th highest number of votes as the winner in
the special election for a single three-year term seat. Accordingly,
petitioners prayed for the nullification of Resolution No. 01-005 in so far
as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005
without jurisdiction because: (1) it failed to notify the electorate of the
position to be filled in the special election as required under Section 2 of
Republic Act No. 6645 ("R.A. No. 6645");4 (2) it failed to require
senatorial candidates to indicate in their certificates of candidacy
whether they seek election under the special or regular elections as
allegedly required under Section 73 of Batas Pambansa Blg. 881;5 and,
consequently, (3) it failed to specify in the Voters Information Sheet the
candidates seeking election under the special or regular senatorial
elections as purportedly required under Section 4, paragraph 4 of
Republic Act No. 6646 ("R.A. No. 6646").6 Petitioners add that because
of these omissions, COMELEC canvassed all the votes cast for the
senatorial candidates in the 14 May 2001 elections without distinction
such that "there were no two separate Senate elections held
simultaneously but just a single election for thirteen seats, irrespective
of term."7
Stated otherwise, petitioners claim that if held simultaneously, a special
and a regular election must be distinguished in the documentation as
well as in the canvassing of their results. To support their claim,
petitioners cite the special elections simultaneously held with the regular
elections of 13 November 1951 and 8 November 1955 to fill the seats
vacated by Senators Fernando Lopez and Carlos P. Garcia,
respectively, who became Vice-Presidents during their tenures in the
Senate.8 Petitioners point out that in those elections, COMELEC
separately canvassed the votes cast for the senatorial candidates
running under the regular elections from the votes cast for the
candidates running under the special elections. COMELEC also
separately proclaimed the winners in each of those elections.9
Petitioners sought the issuance of a temporary restraining order during
the pendency of their petition.
Without issuing any restraining order, we required COMELEC to
Comment on the petition.
On 20 July 2001, after COMELEC had canvassed the results from all
the provinces, it issued Resolution No. 01-006 declaring "official and
final" the ranking of the 13 Senators proclaimed in Resolution No. 01-
005. The 13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required
petitioners to file an amended petition impleading Recto and Honasan
as additional respondents. Petitioners accordingly filed an amended
petition in which they reiterated the contentions raised in their original
petition and, in addition, sought the nullification of Resolution No. 01-
006.
In their Comments, COMELEC, Honasan, and Recto all claim that a
special election to fill the seat vacated by Senator Guingona was validly
held on 14 May 2001. COMELEC and Honasan further raise preliminary
issues on the mootness of the petition and on petitioners’ standing to
litigate. Honasan also claims that the petition, which seeks the nullity of
his proclamation as Senator, is actually a quo warranto petition and the
Court should dismiss the same for lack of jurisdiction. For his part, Recto,
as the 12th ranking Senator, contends he is not a proper party to this
case because the petition only involves the validity of the proclamation
of the 13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally –
(a) whether the petition is in fact a petition for quo
warranto over which the Senate Electoral Tribunal
is the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill a vacant
three-year term Senate seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Court’s Jurisdiction
A quo warranto proceeding is, among others, one to determine the right
of a public officer in the exercise of his office and to oust him from its
enjoyment if his claim is not well-founded.10 Under Section 17, Article VI
of the Constitution, the Senate Electoral Tribunal is the sole judge of all
contests relating to the qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows,
however, that what petitioners are questioning is the validity of the
special election on 14 May 2001 in which Honasan was elected.
Petitioners’ various prayers are, namely: (1) a "declaration" that no
special election was held simultaneously with the general elections on
14 May 2001; (2) to enjoin COMELEC from declaring anyone as having
won in the special election; and (3) to annul Resolution Nos. 01-005 and
01-006 in so far as these Resolutions proclaim Honasan as the winner
in the special election. Petitioners anchor their prayers on COMELEC’s
alleged failure to comply with certain requirements pertaining to the
conduct of that special election. Clearly then, the petition does not seek
to determine Honasan’s right in the exercise of his office as Senator.
Petitioners’ prayer for the annulment of Honasan’s proclamation and,
ultimately, election is merely incidental to petitioners’ cause of action.
Consequently, the Court can properly exercise jurisdiction over the
instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13
Senators and its subsequent confirmation on 20 July 2001 of the ranking
of the 13 Senators render the instant petition to set aside Resolutions
Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal
or board to desist from committing an act threatened to be done without
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.11 Consequently, the writ will not lie to enjoin acts already
done.12 However, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition yet evading
review.13 Thus, in Alunan III v. Mirasol,14 we took cognizance of a petition
to set aside an order canceling the general elections for the
56
Sangguniang Kabataan ("SK") on 4 December 1992 despite that at the
time the petition was filed, the SK election had already taken place. We
noted in Alunan that since the question of the validity of the order sought
to be annulled "is likely to arise in every SK elections and yet the
question may not be decided before the date of such elections," the
mootness of the petition is no bar to its resolution. This observation
squarely applies to the instant case. The question of the validity of a
special election to fill a vacancy in the Senate in relation to COMELEC’s
failure to comply with requirements on the conduct of such special
election is likely to arise in every such election. Such question, however,
may not be decided before the date of the election.
On Petitioners’ Standing
Honasan questions petitioners’ standing to bring the instant petition as
taxpayers and voters because petitioners do not claim that COMELEC
illegally disbursed public funds. Neither do petitioners claim that they
sustained personal injury because of the issuance of Resolution Nos.
01-005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial
interest in a case such that the party has sustained or will sustain direct
injury because of the challenged governmental act.15 The requirement of
standing, which necessarily "sharpens the presentation of
issues,"16 relates to the constitutional mandate that this Court settle only
actual cases or controversies.17 Thus, generally, a party will be allowed
to litigate only when (1) he can show that he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct
of the government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a favorable action.18
Applied strictly, the doctrine of standing to litigate will indeed bar the
instant petition. In questioning, in their capacity as voters, the validity of
the special election on 14 May 2001, petitioners assert a harm classified
as a "generalized grievance." This generalized grievance is shared in
substantially equal measure by a large class of voters, if not all the
voters, who voted in that election.19 Neither have petitioners alleged, in
their capacity as taxpayers, that the Court should give due course to the
petition because in the special election held on 14 May 2001 "tax money
[was] ‘x x x extracted and spent in violation of specific constitutional
protections against abuses of legislative power’ or that there [was]
misapplication of such funds by COMELEC or that public money [was]
deflected to any improper purpose."20
On the other hand, we have relaxed the requirement on standing and
exercised our discretion to give due course to voters’ suits involving the
right of suffrage.21 Also, in the recent case of Integrated Bar of the
Philippines v. Zamora,22 we gave the same liberal treatment to a
petition filed by the Integrated Bar of the Philippines ("IBP"). The IBP
questioned the validity of a Presidential directive deploying elements of
the Philippine National Police and the Philippine Marines in Metro Manila
to conduct patrols even though the IBP presented "too general an
interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration,
however, the IBP asserts no other basis in support of its locus standi.
The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest which is shared
by other groups and the whole citizenry x x x.
Having stated the foregoing, this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. In not a few cases, the
court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental
significance to the people. Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows
that the IBP has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under constant
threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in
the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.23 (Emphasis
supplied)
We accord the same treatment to petitioners in the instant case in their
capacity as voters since they raise important issues involving their right
of suffrage, considering that the issue raised in this petition is likely to
arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be
called to fill any vacancy in the Senate and the House of Representatives
"in the manner prescribed by law," thus:
In case of vacancy in the Senate or in the House of Representatives, a
special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
(Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A.
No. 6645, which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least one (1) year
before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or
the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold a
special election to fill such vacancy. If Congress is in recess, an official
communication on the existence of the vacancy and call for a special
election by the President of the Senate or by the Speaker of the House
of Representatives, as the case may be, shall be sufficient for such
purpose. The Senator or Member of the House of Representatives thus
elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days nor
later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to be
voted for: Provided, however, That if within the said period a general
election is scheduled to be held, the special election shall be held
simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of
R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. – x x x In case
a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the term,
the Commission shall call and hold a special election to fill the vacancy
not earlier than sixty (60) days nor longer than ninety (90) days after the
occurrence of the vacancy. However, in case of such vacancy in the
Senate, the special election shall be held simultaneously with the next
succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the
expiration of the term, Section 2 of R.A. No. 6645, as amended, requires
COMELEC: (1) to call a special election by fixing the date of the special
election, which shall not be earlier than sixty (60) days nor later than
ninety (90) after the occurrence of the vacancy but in case of a vacancy
in the Senate, the special election shall be held simultaneously with the
next succeeding regular election; and (2) to give notice to the voters of,
among other things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election
simultaneously with the 14 May 2001 regular elections, comply with the
requirements in Section 2 of R.A. No. 6645?
A survey of COMELEC’s resolutions relating to the conduct of the 14
May 2001 elections reveals that they contain nothing which would
amount to a compliance, either strict or substantial, with the
57
requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere
in its resolutions24 or even in its press releases25 did COMELEC state
that it would hold a special election for a single three-year term Senate
seat simultaneously with the regular elections on 14 May 2001. Nor did
COMELEC give formal notice that it would proclaim as winner the
senatorial candidate receiving the 13th highest number of votes in the
special election.
The controversy thus turns on whether COMELEC’s failure, assuming it
did fail, to comply with the requirements in Section 2 of R.A. No. 6645,
as amended, invalidated the conduct of the special senatorial election
on 14 May 2001 and accordingly rendered Honasan’s proclamation as
the winner in that special election void. More precisely, the question is
whether the special election is invalid for lack of a "call" for such election
and for lack of notice as to the office to be filled and the manner by which
the winner in the special election is to be determined. For reasons stated
below, the Court answers in the negative.
COMELEC’s Failure to Give Notice
of the Time of the Special Election Did Not
Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and place
of its occurrence, whether made by the legislature directly or by the body
with the duty to give such call, is indispensable to the election’s
validity.26 In a general election, where the law fixes the date of the
election, the election is valid without any call by the body charged to
administer the election.27
In a special election to fill a vacancy, the rule is that a statute that
expressly provides that an election to fill a vacancy shall be held at the
next general elections fixes the date at which the special election is to
be held and operates as the call for that election. Consequently, an
election held at the time thus prescribed is not invalidated by the fact
that the body charged by law with the duty of calling the election failed
to do so.28 This is because the right and duty to hold the election
emanate from the statute and not from any call for the election by some
authority29 and the law thus charges voters with knowledge of the time
and place of the election.30
Conversely, where the law does not fix the time and place for holding a
special election but empowers some authority to fix the time and place
after the happening of a condition precedent, the statutory provision on
the giving of notice is considered mandatory, and failure to do so will
render the election a nullity.31
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case
of vacancy in the Senate, the special election to fill such vacancy shall
be held simultaneously with the next succeeding regular election.
Accordingly, the special election to fill the vacancy in the Senate arising
from Senator Guingona’s appointment as Vice-President in February
2001 could not be held at any other time but must be held simultaneously
with the next succeeding regular elections on 14 May 2001. The law
charges the voters with knowledge of this statutory notice and
COMELEC’s failure to give the additional notice did not negate the
calling of such special election, much less invalidate it.
Our conclusion might be different had the present case involved a
special election to fill a vacancy in the House of Representatives. In such
a case, the holding of the special election is subject to a condition
precedent, that is, the vacancy should take place at least one year
before the expiration of the term. The time of the election is left to the
discretion of COMELEC subject only to the limitation that it holds the
special election within the range of time provided in Section 2 of R.A.
No. 6645, as amended. This makes mandatory the requirement in
Section 2 of R.A. No. 6645, as amended, for COMELEC to "call x x x a
special election x x x not earlier than 60 days nor longer than 90 days
after the occurrence of the vacancy" and give notice of the office to be
filled. The COMELEC’s failure to so call and give notice will nullify any
attempt to hold a special election to fill the vacancy. Indeed, it will be
well-nigh impossible for the voters in the congressional district involved
to know the time and place of the special election and the office to be
filled unless the COMELEC so notifies them.
No Proof that COMELEC’s
Failure to Give Notice of the Office
to be Filled and the Manner of
Determining the Winner in the Special
Election Misled Voters
The test in determining the validity of a special election in relation to the
failure to give notice of the special election is whether the want of notice
has resulted in misleading a sufficient number of voters as would change
the result of the special election. If the lack of official notice misled a
substantial number of voters who wrongly believed that there was no
special election to fill a vacancy, a choice by a small percentage of voters
would be void.32
The required notice to the voters in the 14 May 2001 special senatorial
election covers two matters. First, that COMELEC will hold a special
election to fill a vacant single three-year term Senate seat
simultaneously with the regular elections scheduled on the same date.
Second, that COMELEC will proclaim as winner the senatorial candidate
receiving the 13th highest number of votes in the special election.
Petitioners have neither claimed nor proved that COMELEC’s failure to
give this required notice misled a sufficient number of voters as would
change the result of the special senatorial election or led them to believe
that there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to
give such notice, no special election took place. This bare assertion
carries no value. Section 2 of R.A. No. 6645, as amended, charged
those who voted in the elections of 14 May 2001 with the knowledge that
the vacancy in the Senate arising from Senator Guingona’s appointment
as Vice-President in February 2001 was to be filled in the next
succeeding regular election of 14 May 2001. Similarly, the absence of
formal notice from COMELEC does not preclude the possibility that the
voters had actual notice of the special election, the office to be voted in
that election, and the manner by which COMELEC would determine the
winner. Such actual notice could come from many sources, such as
media reports of the enactment of R.A. No. 6645 and election
propaganda during the campaign.33
More than 10 million voters cast their votes in favor of Honasan, the party
who stands most prejudiced by the instant petition. We simply cannot
disenfranchise those who voted for Honasan, in the absence of proof
that COMELEC’s omission prejudiced voters in the exercise of their right
of suffrage so as to negate the holding of the special election. Indeed,
this Court is loathe to annul elections and will only do so when it is
"impossible to distinguish what votes are lawful and what are unlawful,
or to arrive at any certain result whatever, or that the great body of the
voters have been prevented by violence, intimidation, and threats from
exercising their franchise."34
Otherwise, the consistent rule has been to respect the electorate’s will
and let the results of the election stand, despite irregularities that may
have attended the conduct of the elections.35 This is but to acknowledge
the purpose and role of elections in a democratic society such as ours,
which is:
to give the voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in deciding
some question of public interest; and for that purpose all of the legal
voters should be permitted, unhampered and unmolested, to cast their
ballot. When that is done and no frauds have been committed, the ballots
should be counted and the election should not be declared null. Innocent
voters should not be deprived of their participation in the affairs of their
government for mere irregularities on the part of the election officers, for
which they are in no way responsible. A different rule would make the
manner and method of performing a public duty of greater importance
than the duty itself.36 (Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners’ claim that the manner by which
COMELEC conducted the special senatorial election on 14 May 2001 is
a nullity because COMELEC failed to document separately the
candidates and to canvass separately the votes cast for the special
election. No such requirements exist in our election laws. What is
58
mandatory under Section 2 of R.A. No. 6645 is that COMELEC "fix the
date of the election," if necessary, and "state, among others, the office
or offices to be voted for." Similarly, petitioners’ reliance on Section 73
of B.P. Blg. 881 on the filing of certificates of candidacy, and on Section
4(4) of R.A. No. 6646 on the printing of election returns and tally sheets,
to support their claim is misplaced. These provisions govern elections in
general and in no way require separate documentation of candidates or
separate canvass of votes in a jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the
special election on 14 May 2001 merely implemented the procedure
specified by the Senate in Resolution No. 84. Initially, the original draft
of Resolution No. 84 as introduced by Senator Francisco Tatad
("Senator Tatad") made no mention of the manner by which the seat
vacated by former Senator Guingona would be filled. However, upon the
suggestion of Senator Raul Roco ("Senator Roco"), the Senate agreed
to amend Resolution No. 84 by providing, as it now appears, that "the
senatorial candidate garnering the thirteenth (13th) highest number of
votes shall serve only for the unexpired term of former Senator Teofisto
T. Guingona, Jr." Senator Roco introduced the amendment to spare
COMELEC and the candidates needless expenditures and the voters
further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider
Proposed Senate Resolution No. 934 [later converted to Resolution No.
84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being
none, the motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order.
With the permission of the Body, the Secretary will read only the title and
text of the resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN
THE SENATE AND CALLING ON THE COMMISSION ON ELECTIONS
(COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION TO
BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON
MAY 14, 2001 AND THE SENATOR THUS ELECTED TO SERVE
ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected
Senator of the Philippines in 1998 for a term which will expire on June
30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria
Macapagal Arroyo nominated Senator Guingona as Vice-President of
the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed
by a majority vote of all the members of both House of Congress, voting
separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-
President of the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve
(12) Senators, all elective Members of the House of Representatives,
and all elective provincial city and municipal officials shall be held on the
second Monday and every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it
hereby certifies, the existence of a vacancy in the Senate and calling the
Commission on Elections (COMELEC) to fill up such vacancy through
election to be held simultaneously with the regular election on May 14,
2001 and the Senator thus elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this
resolution.
S[ENATOR] O[SMEÑA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the
distinguished Majority Leader, Chairman of the Committee on Rules,
author of this resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was
a special election for a vacant seat in the Senate. As a matter of fact,
the one who was elected in that special election was then Congressman,
later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In
other words, the electorate had to cast a vote for a ninth senator –
because at that time there were only eight – to elect a member or rather,
a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA
revolution, twice there were 24 candidates and the first 12 were elected
to a six-year term and the next 12 were elected to a three-year term.
My question therefore is, how is this going to be done in this election? Is
the candidate with the 13th largest number of votes going to be the one
to take a three-year term? Or is there going to be an election for a
position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving
the mechanics to the Commission on Elections. But personally, I would
like to suggest that probably, the candidate obtaining the 13th largest
number of votes be declared as elected to fill up the unexpired term of
Senator Guingona.
S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the Comelec
to conduct such an election? Is it not the case that the vacancy is for a
specific office? I am really at a loss. I am rising here because I think it is
something that we should consider. I do not know if we can… No, this is
not a Concurrent Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate
President.
T[HE] P[RESIDENT]. May I share this information that under Republic
Act No. 6645, what is needed is a resolution of this Chamber calling
attention to the need for the holding of a special election to fill up the
vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the
particular candidate to fill up would be that reserved for Mr. Guingona’s
unexpired term. In other words, it can be arranged in such a manner.
xxxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus,
wordings to the effect that in the simultaneous elections, the 13th placer
be therefore deemed to be the special election for this purpose. So we
just nominate 13 and it is good for our colleagues. It is better for the
candidates. It is also less expensive because the ballot will be printed
and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.
59
S[ENATOR] R[OCO]. If we can just deem it therefore under this
resolution to be such a special election, maybe, we satisfy the
requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for
the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. – to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the
forthcoming elections that will be held simultaneously as a special
election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator
Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later,
maybe it will be better, Mr. President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal
because I do not believe that there will be anyone running specifically –
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. – to fill up this position for three years and
campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th
candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent
of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and
if there will be no other amendment, I move for the adoption of this
resolution.
xxxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this
resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there
any objection? [Silence] There being none, the motion is approved.37
Evidently, COMELEC, in the exercise of its discretion to use means and
methods to conduct the special election within the confines of R.A. No.
6645, merely chose to adopt the Senate’s proposal, as embodied in
Resolution No. 84. This Court has consistently acknowledged and
affirmed COMELEC’s wide latitude of discretion in adopting means to
carry out its mandate of ensuring free, orderly, and honest elections
subject only to the limitation that the means so adopted are not illegal or
do not constitute grave abuse of discretion. 38 COMELEC’s decision to
abandon the means it employed in the 13 November 1951 and 8
November 1955 special elections and adopt the method embodied in
Resolution No. 84 is but a legitimate exercise of its discretion.
Conversely, this Court will not interfere should COMELEC, in
subsequent special senatorial elections, choose to revert to the means
it followed in the 13 November 1951 and 8 November 1955 elections.
That COMELEC adopts means that are novel or even disagreeable is
no reason to adjudge it liable for grave abuse of discretion. As we have
earlier noted:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of
government.1âwphi1 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.39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to
the electorate of necessary information regarding a special election, are
central to an informed exercise of the right of suffrage. While the
circumstances attendant to the present case have led us to conclude
that COMELEC’s failure to so call and give notice did not invalidate the
special senatorial election held on 14 May 2001, COMELEC should not
take chances in future elections. We remind COMELEC to comply
strictly with all the requirements under applicable laws relative to the
conduct of regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY (PDEA), respondents.
x-----------------------------------------------x
G.R. No. 158633 November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY, respondents.
x-----------------------------------------------x
G.R. No. 161658 November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.
DECISION
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of Republic
Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, insofar as it requires mandatory drug testing of
candidates for public office, students of secondary and tertiary schools,
officers and employees of public and private offices, and persons
charged before the prosecutor's office with certain offenses, among
other personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing. - Authorized drug testing
shall be done by any government forensic laboratories or by
any of the drug testing laboratories accredited and monitored
by the DOH to safeguard the quality of the test results. x x x
The drug testing shall employ, among others, two (2) testing
methods, the screening test which will determine the positive
result as well as the type of drug used and the confirmatory
60
 test which will confirm a positive screening test. x x x The
following shall be subjected to undergo drug testing:
xxxx
(c) Students of secondary and tertiary schools. - Students of
secondary and tertiary schools shall, pursuant to the related
rules and regulations as contained in the school's student
handbook and with notice to the parents, undergo a random
drug testing x x x;
(d) Officers and employees of public and private offices. -
Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random
drug test as contained in the company's work rules and
regulations, x x x for purposes of reducing the risk in the
workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which
shall be a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutor's office with a
criminal offense having an imposable penalty of imprisonment
of not less than six (6) years and one (1) day shall undergo a
mandatory drug test;
(g) All candidates for public office whether appointed or
elected both in the national or local government shall undergo
a mandatory drug test.
In addition to the above stated penalties in this Section, those found to
be positive for dangerous drugs use shall be subject to the provisions of
Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC)
issued Resolution No. 6486, prescribing the rules and regulations on the
mandatory drug testing of candidates for public office in connection with
the May 10, 2004 synchronized national and local elections. The
pertinent portions of the said resolution read as follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing. - x x x
xxxx
(g) All candidates for public office x x x both in the national or
local government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution
provides that public officers and employees must at all times
be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo mandatory
drug test, the public will know the quality of candidates they
are electing and they will be assured that only those who can
serve with utmost responsibility, integrity, loyalty, and
efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the
authority vested in it under the Constitution, Batas Pambansa
Blg. 881 (Omnibus Election Code), [RA] 9165 and other
election laws, RESOLVED to promulgate, as it hereby
promulgates, the following rules and regulations on the
conduct of mandatory drug testing to candidates for public
office[:]
SECTION 1. Coverage. - All candidates for public office,
both national and local, in the May 10, 2004 Synchronized
National and Local Elections shall undergo mandatory drug
test in government forensic laboratories or any drug testing
laboratories monitored and accredited by the Department of
Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed
with their respective offices, the Comelec Offices and
employees concerned shall submit to the Law Department two
(2) separate lists of candidates. The first list shall consist of
those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who
failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates.
- Before the start of the campaign period, the [COMELEC]
shall prepare two separate lists of candidates. The first list
shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those
candidates who failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and
file drug test certificate. - No person elected to any public
office shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices
enumerated under Section 2 hereof the drug test certificate
herein required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a
candidate for re - election in the May 10, 2004 elections,1filed a Petition
for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify
Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated
December 23, 2003 for being unconstitutional in that they impose a
qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC
from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a
natural - born citizen of the Philippines, and, on the day of the
election, is at least thirty - five years of age, able to read and
write, a registered voter, and a resident of the Philippines for
not less than two years immediately preceding the day of the
election.
According to Pimentel, the Constitution only prescribes a maximum of
five (5) qualifications for one to be a candidate for, elected to, and be a
member of the Senate. He says that both the Congress and COMELEC,
by requiring, via RA 9165 and Resolution No. 6486, a senatorial
aspirant, among other candidates, to undergo a mandatory drug test,
create an additional qualification that all candidates for senator must first
be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice
Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement
Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec.
36 of RA 9165 on the ground that they are constitutionally infirm. For
one, the provisions constitute undue delegation of legislative power
when they give unbridled discretion to schools and employers to
determine the manner of drug testing. For another, the provisions trench
in the equal protection clause inasmuch as they can be used to harass
a student or an employee deemed undesirable. And for a third, a
person's constitutional right against unreasonable searches is also
breached by said provisions.
61
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also
seeks in his Petition for Certiorari and Prohibition under Rule 65 that
Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional
for infringing on the constitutional right to privacy, the right against
unreasonable search and seizure, and the right against self -
incrimination, and for being contrary to the due process and equal
protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege
any incident amounting to a violation of the constitutional rights
mentioned in their separate petitions.2
It is basic that the power of judicial review can only be exercised in
connection with a bona fide controversy which involves the statute
sought to be reviewed.3 But even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial review unless the
constitutional question is brought before it by a party having the requisite
standing to challenge it.4 To have standing, one must establish that he
or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable
to the challenged action; and the injury is likely to be redressed by a
favorable action.5
The rule on standing, however, is a matter of procedure; hence, it can
be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers,
and legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overarching significance to
society, or of paramount public interest.6 There is no doubt that
Pimentel, as senator of the Philippines and candidate for the May 10,
2004 elections, possesses the requisite standing since he has
substantial interests in the subject matter of the petition, among other
preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the
transcendental importance and the paramount public interest involved in
the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486
impose an additional qualification for candidates for senator? Corollarily,
can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to
privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of
legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 illegally impose an additional qualification on
candidates for senator. He points out that, subject to the provisions on
nuisance candidates, a candidate for senator needs only to meet the
qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency.
Beyond these stated qualification requirements, candidates for senator
need not possess any other qualification to run for senator and be voted
upon and elected as member of the Senate. The Congress cannot
validly amend or otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a constitutional
mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165
should be, as it is hereby declared as, unconstitutional. It is basic that if
a law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic
law to which all laws must conform; no act shall be valid if it conflicts with
the Constitution.8 In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be
observed.9
Congress' inherent legislative powers, broad as they may be, are subject
to certain limitations. As early as 1927, in Government v. Springer, the
Court has defined, in the abstract, the limits on legislative power in the
following wise:
Someone has said that the powers of the legislative
department of the Government, like the boundaries of the
ocean, are unlimited. In constitutional governments, however,
as well as governments acting under delegated authority, the
powers of each of the departments x x x are limited and
confined within the four walls of the constitution or the charter,
and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is
the shore of legislative authority against which the waves of
legislative enactment may dash, but over which it cannot
leap.10
Thus, legislative power remains limited in the sense that it is subject to
substantive and constitutional limitations which circumscribe both the
exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found
in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the
Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to
implement Sec. 36(g), validly impose qualifications on candidates for
senator in addition to what the Constitution prescribes. If Congress
cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution.13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As
couched, said Sec. 36(g) unmistakably requires a candidate for senator
to be certified illegal - drug clean, obviously as a pre - condition to the
validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed
as senator - elect. The COMELEC resolution completes the chain with
the proviso that "[n]o person elected to any public office shall enter upon
the duties of his office until he has undergone mandatory drug test."
Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to
what the 1987 Constitution, at the minimum, requires for membership in
the Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is really of
no moment, as getting elected would be of little value if one cannot
assume office for non - compliance with the drug - testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA
9165, that the provision does not expressly state that non - compliance
with the drug test imposition is a disqualifying factor or would work to
nullify a certificate of candidacy. This argument may be accorded
plausibility if the drug test requirement is optional. But the particular
section of the law, without exception, made drug - testing on those
covered mandatory, necessarily suggesting that the obstinate ones shall
have to suffer the adverse consequences for not adhering to the
statutory command. And since the provision deals with candidates for
public office, it stands to reason that the adverse consequence adverted
to can only refer to and revolve around the election and the assumption
of public office of the candidates. Any other construal would reduce the
62
mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without
meaning and effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC
Resolution No. 6486 is no longer enforceable, for by its terms, it was
intended to cover only the May 10, 2004 synchronized elections and the
candidates running in that electoral event. Nonetheless, to obviate
repetition, the Court deems it appropriate to review and rule, as it hereby
rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having
infringed the constitutional provision defining the qualification or
eligibility requirements for one aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees,
while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process "the
well being of [the] citizenry, particularly the youth, from the harmful
effects of dangerous drugs." This statutory purpose, per the policy -
declaration portion of the law, can be achieved via the pursuit by the
state of "an intensive and unrelenting campaign against the trafficking
and use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti - drug abuse policies,
programs and projects."14 The primary legislative intent is not criminal
prosecution, as those found positive for illegal drug use as a result of
this random testing are not necessarily treated as criminals. They may
even be exempt from criminal liability should the illegal drug user
consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear
on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation. - A drug
dependent or any person who violates Section 15 of this Act
may, by himself/herself or through his/her parent, [close
relatives] x x x apply to the Board x x x for treatment and
rehabilitation of the drug dependency. Upon such application,
the Board shall bring forth the matter to the Court which shall
order that the applicant be examined for drug dependency. If
the examination x x x results in the certification that the
applicant is a drug dependent, he/she shall be ordered by the
Court to undergo treatment and rehabilitation in a Center
designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the
Voluntary Submission Program. - A drug dependent under the
voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under
Section 15 of this Act subject to the following conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable to
the physical, psychological, and addictive effects of drugs. Maturing
nervous systems of the young are more critically impaired by intoxicants
and are more inclined to drug dependency. Their recovery is also at a
depressingly low rate.15
The right to privacy has been accorded recognition in this jurisdiction as
a facet of the right protected by the guarantee against unreasonable
search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while
the right to privacy has long come into its own, this case appears to be
the first time that the validity of a state - decreed search or intrusion
through the medium of mandatory random drug testing among students
and employees is, in this jurisdiction, made the focal point. Thus, the
issue tendered in these proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence.
With respect to random drug testing among school children, we turn to
the teachings of Vernonia School District 47J v. Acton (Vernonia) and
Board of Education of Independent School District No. 92 of
Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both
fairly pertinent US Supreme Court - decided cases involving the
constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to
address the drug menace in their respective institutions following the
discovery of frequent drug use by school athletes. After consultation with
the parents, they required random urinalysis drug testing for the school's
athletes. James Acton, a high school student, was denied participation
in the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the school's drug testing
policy violated, inter alia, the Fourth Amendment19 of the US
Constitution.
The US Supreme Court, in fashioning a solution to the issues raised
in Vernonia, considered the following: (1) schools stand in loco
parentis over their students; (2) school children, while not shedding their
constitutional rights at the school gate, have less privacy rights; (3)
athletes have less privacy rights than non - athletes since the former
observe communal undress before and after sports events; (4) by joining
the sports activity, the athletes voluntarily subjected themselves to a
higher degree of school supervision and regulation; (5) requiring urine
samples does not invade a student's privacy since a student need not
undress for this kind of drug testing; and (6) there is need for the drug
testing because of the dangerous effects of illegal drugs on the young.
The US Supreme Court held that the policy constituted reasonable
search under the Fourth20 and 14th Amendments and declared the
random drug - testing policy constitutional.
In Board of Education, the Board of Education of a school in Tecumseh,
Oklahoma required a drug test for high school students desiring to join
extra - curricular activities. Lindsay Earls, a member of the show choir,
marching band, and academic team declined to undergo a drug test and
averred that the drug - testing policy made to apply to non - athletes
violated the Fourth and 14th Amendments. As Earls argued, unlike
athletes who routinely undergo physical examinations and undress
before their peers in locker rooms, non - athletes are entitled to more
privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of
drug testing even among non - athletes on the basis of the school's
custodial responsibility and authority. In so ruling, said court made no
distinction between a non - athlete and an athlete. It ratiocinated that
schools and teachers act in place of the parents with a similar interest
and duty of safeguarding the health of the students. And in holding that
the school could implement its random drug - testing policy, the Court
hinted that such a test was a kind of search in which even a reasonable
parent might need to engage.
In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators
stand in loco parentis with respect to their students; (2) minor students
have contextually fewer rights than an adult, and are subject to the
custody and supervision of their parents, guardians, and schools; (3)
schools, acting in loco parentis, have a duty to safeguard the health and
well - being of their students and may adopt such measures as may
reasonably be necessary to discharge such duty; and (4) schools have
the right to impose conditions on applicants for admission that are fair,
just, and non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view
and so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require,
as a condition for admission, compliance with reasonable school rules
and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited drugs
in the country that threatens the well - being of the people,21 particularly
the youth and school children who usually end up as victims.
Accordingly, and until a more effective method is conceptualized and put
in motion, a random drug testing of students in secondary and tertiary
63
schools is not only acceptable but may even be necessary if the safety
and interest of the student population, doubtless a legitimate concern of
the government, are to be promoted and protected. To borrow
from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as
important as enhancing efficient enforcement of the Nation's laws
against the importation of drugs"; the necessity for the State to act is
magnified by the fact that the effects of a drug - infested school are
visited not just upon the users, but upon the entire student body and
faculty.22 Needless to stress, the random testing scheme provided under
the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165 for
officers and employees of public and private offices is justifiable, albeit
not exactly for the same reason. The Court notes in this regard that
petitioner SJS, other than saying that "subjecting almost everybody to
drug testing, without probable cause, is unreasonable, an unwarranted
intrusion of the individual right to privacy,"23 has failed to show how the
mandatory, random, and suspicionless drug testing under Sec. 36(c)
and (d) of RA 9165 violates the right to privacy and constitutes unlawful
and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration.
Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of Appeals
have made various rulings on the constitutionality of
mandatory drug tests in the school and the workplaces. The
US courts have been consistent in their rulings that the
mandatory drug tests violate a citizen's constitutional right to
privacy and right against unreasonable search and seizure.
They are quoted extensively hereinbelow.25
The essence of privacy is the right to be left alone.26 In context, the right
to privacy means the right to be free from unwarranted exploitation of
one's person or from intrusion into one's private activities in such a way
as to cause humiliation to a person's ordinary sensibilities. 27 And while
there has been general agreement as to the basic function of the
guarantee against unwarranted search, "translation of the abstract
prohibition against ‘unreasonable searches and seizures' into workable
broad guidelines for the decision of particular cases is a difficult task," to
borrow from C. Camara v. Municipal Court.28 Authorities are agreed
though that the right to privacy yields to certain paramount rights of the
public and defers to the state's exercise of police power. 29
As the warrantless clause of Sec. 2, Art III of the Constitution is couched
and as has been held, "reasonableness" is the touchstone of the validity
of a government search or intrusion.30 And whether a search at issue
hews to the reasonableness standard is judged by the balancing of the
government - mandated intrusion on the individual's privacy interest
against the promotion of some compelling state interest.31 In the criminal
context, reasonableness requires showing of probable cause to be
personally determined by a judge. Given that the drug - testing policy for
employees--and students for that matter--under RA 9165 is in the nature
of administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause
standard is not required or even practicable. Be that as it may, the review
should focus on the reasonableness of the challenged administrative
search in question.
The first factor to consider in the matter of reasonableness is the nature
of the privacy interest upon which the drug testing, which effects a
search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees' privacy
interest in an office is to a large extent circumscribed by the company's
work policies, the collective bargaining agreement, if any, entered into
by management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their
privacy expectation in a regulated office environment is, in fine, reduced;
and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is the
scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly
drawn" or "narrowly focused"?32
The poser should be answered in the affirmative. For one, Sec. 36 of RA
9165 and its implementing rules and regulations (IRR), as couched,
contain provisions specifically directed towards preventing a situation
that would unduly embarrass the employees or place them under a
humiliating experience. While every officer and employee in a private
establishment is under the law deemed forewarned that he or she may
be a possible subject of a drug test, nobody is really singled out in
advance for drug testing. The goal is to discourage drug use by not
telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a
narrowing ingredient by providing that the employees concerned shall
be subjected to "random drug test as contained in the company's work
rules and regulations x x x for purposes of reducing the risk in the work
place."
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the employee's
privacy and dignity. As to the mechanics of the test, the law specifies
that the procedure shall employ two testing methods, i.e., the screening
test and the confirmatory test, doubtless to ensure as much as possible
the trustworthiness of the results. But the more important consideration
lies in the fact that the test shall be conducted by trained professionals
in access - controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to ensure an
accurate chain of custody.33 In addition, the IRR issued by the DOH
provides that access to the drug results shall be on the "need to know"
basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not oblige the
employer concerned to report to the prosecuting agencies any
information or evidence relating to the violation of the Comprehensive
Dangerous Drugs Act received as a result of the operation of the drug
testing. All told, therefore, the intrusion into the employees' privacy,
under RA 9165, is accompanied by proper safeguards, particularly
against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal
drug in the country and thus protect the well - being of the citizens,
especially the youth, from the deleterious effects of dangerous drugs.
The law intends to achieve this through the medium, among others, of
promoting and resolutely pursuing a national drug abuse policy in the
workplace via a mandatory random drug test.36 To the Court, the need
for drug testing to at least minimize illegal drug use is substantial enough
to override the individual's privacy interest under the premises. The
Court can consider that the illegal drug menace cuts across gender, age
group, and social - economic lines. And it may not be amiss to state that
the sale, manufacture, or trafficking of illegal drugs, with their ready
market, would be an investor's dream were it not for the illegal and
immoral components of any of such activities. The drug problem has
hardly abated since the martial law public execution of a notorious drug
trafficker. The state can no longer assume a laid back stance with
respect to this modern - day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of
preventing and deterring drug use among employees in private offices,
the threat of detection by random testing being higher than other modes.
The Court holds that the chosen method is a reasonable and enough
means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation
of privacy on the part of the employees, the compelling state concern
likely to be met by the search, and the well - defined limits set forth in
the law to properly guide authorities in the conduct of the random testing,
we hold that the challenged drug test requirement is, under the limited
context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and
employees also labor under reasonable supervision and restrictions
imposed by the Civil Service law and other laws on public officers, all
enacted to promote a high standard of ethics in the public service.37 And
64
if RA 9165 passes the norm of reasonableness for private employees,
the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to
the people and to serve them with utmost responsibility and efficiency.38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on
the ground of undue delegation of power hardly commends itself for
concurrence. Contrary to its position, the provision in question is not so
extensively drawn as to give unbridled options to schools and employers
to determine the manner of drug testing. Sec. 36 expressly provides how
drug testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted. It
enumerates the persons who shall undergo drug testing. In the case of
students, the testing shall be in accordance with the school rules as
contained in the student handbook and with notice to parents. On the
part of officers/employees, the testing shall take into account the
company's work rules. In either case, the random procedure shall be
observed, meaning that the persons to be subjected to drug test shall be
picked by chance or in an unplanned way. And in all cases, safeguards
against misusing and compromising the confidentiality of the test results
are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in
consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the
law. In net effect then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165. It is,
therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the
drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the
constitutional landscape.39 In the face of the increasing complexity of the
task of the government and the increasing inability of the legislature to
cope directly with the many problems demanding its attention, resort to
delegation of power, or entrusting to administrative agencies the power
of subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court
finds no valid justification for mandatory drug testing for persons
accused of crimes. In the case of students, the constitutional viability of
the mandatory, random, and suspicionless drug testing for students
emanates primarily from the waiver by the students of their right to
privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities.
In the case of private and public employees, the constitutional
soundness of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy and
requirement.
We find the situation entirely different in the case of persons charged
before the public prosecutor's office with criminal offenses punishable
with six (6) years and one (1) day imprisonment. The operative concepts
in the mandatory drug testing are "randomness" and "suspicionless." In
the case of persons charged with a crime before the prosecutor's office,
a mandatory drug testing can never be random or suspicionless. The
ideas of randomness and being suspicionless are antithetical to their
being made defendants in a criminal complaint. They are not randomly
picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being
haled before the prosecutor's office and peaceably submitting
themselves to drug testing, if that be the case, do not necessarily
consent to the procedure, let alone waive their right to privacy. 40 To
impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165. Drug testing in this case would violate a
persons' right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No.
161658 and declares Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec.
36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly,
permanently enjoined from implementing Sec. 36(f) and (g)of RA 9165.
No costs.
SO ORDERED.
VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG
MGA MAGSASAKA, MANGGAGAWANG BUKID AT
MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG TAO
PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON
FARMERS PARTY, petitioners,
vs.
COMMISSION ON ELECTIONS, PAG-ASA, SENIOR CITIZENS,
AKAP AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA,
MAHARLIKA, OCW-UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL,
BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMEN-POWER,
INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP,
ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAKBAYAN,
ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN,
ONEWAY PRINT, AABANTE KA PILIPINAS -- All Being Party-List
Parties/Organizations -- and Hon. MANUEL B. VILLAR, JR. in His
Capacity as Speaker of the House of
Representatives, respondents.
x-----------------------x
G.R. No. 136786 October 6, 2000
AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN
NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT
KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE
ELECTRIC COOPERATIVES (APEC),petitioners,
vs.
COMMISSION ON ELECTIONS (COMELEC), HOUSE OF
REPRESENTATIVES represented by Speaker Manuel B. Villar,
PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA,
PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-
KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW,
WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, FOUR
"L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN, ONEWAY PRINT, AABANTE KA
PILIPINAS, respondents.
x-----------------------x
G.R. No. 136795 October 6, 2000
ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL
CONFEDERATION OF SMALL COCONUT FARMERS'
ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY
(BUTIL), petitioners,
vs.
COMMISSION ON ELECTIONS, SENIOR CITIZENS, AKAP,
AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA,
OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-
BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC.,
FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP,
NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA,
MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY
PRINT, and AABANTE KA PILIPINAS, respondents.
DECISION
PANGANIBAN, J.:*
Prologue
65
To determine the winners in a Philippine-style party-list election, the
Constitution and Republic Act (RA) No. 7941 mandate at least four
inviolable parameters. These are:
First, the twenty percent allocation - the combined number of all party-
list congressmen shall not exceed twenty percent of the total
membership of the House of Representatives, including those elected
under the party list.
Second, the two percent threshold - only those parties garnering a
minimum of two percent of the total valid votes cast for the party-list
system are "qualified" to have a seat in the House of Representatives;
Third, the three-seat limit - each qualified party, regardless of the number
of votes it actually obtained, is entitled to a maximum of three seats; that
is, one "qualifying" and two additional seats.
Fourth, proportional representation - the additional seats which a
qualified party is entitled to shall be computed "in proportion to their total
number of votes."
Because the Comelec violated these legal parameters, the assailed
Resolutions must be struck down for having been issued in grave abuse
of discretion. The poll body is mandated to enforce and administer
election-related laws. It has no power to contravene or amend them.
Neither does it have authority to decide the wisdom, propriety or
rationality of the acts of Congress.
Its bounden duty is to craft rules, regulations, methods and formulas to
implement election laws -- not to reject, ignore, defeat, obstruct or
circumvent them.
In fine, the constitutional introduction of the party-list system - a normal
feature of parliamentary democracies - into our presidential form of
government, modified by unique Filipino statutory parameters, presents
new paradigms and novel questions, which demand innovative legal
solutions convertible into mathematical formulations which are, in turn,
anchored on time-tested jurisprudence.
The Case
Before the Court are three consolidated Petitions for Certiorari (with
applications for the issuance of a temporary restraining order or writ of
preliminary injunction) under Rule 65 of the Rules of Court, assailing (1)
the October 15, 1998 Resolution1 of the Commission on Elections
(Comelec), Second Division, in Election Matter 98-065;2 and (2) the
January 7, 1999 Resolution3 of the Comelec en banc, affirming the said
disposition. The assailed Resolutions ordered the proclamation of thirty-
eight (38) additional party-list representatives "to complete the full
complement of 52 seats in the House of Representatives as provided
under Section 5, Article VI of the 1987 Constitution and R.A. 7941."
The Facts and the Antecedents
Our 1987 Constitution introduced a novel feature into our presidential
system of government -- the party-list method of representation. Under
this system, any national, regional or sectoral party or organization
registered with the Commission on Elections may participate in the
election of party-list representatives who, upon their election and
proclamation, shall sit in the House of Representatives as regular
members.4 In effect, a voter is given two (2) votes for the House -- one
for a district congressman and another for a party-list representative.5
Specifically, this system of representation is mandated by Section 5,
Article VI of the Constitution, which provides:
"Sec. 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected by a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party-list.
For three consecutive terms after the ratification of this Constitution, one
half of the seats allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
Complying with its constitutional duty to provide by law the "selection or
election" of party-list representatives, Congress enacted RA 7941 on
March 3, 1995. Under this statute’s policy declaration, the State shall
"promote proportional representation in the election of representatives
to the House of Representatives through a party-list system of registered
national, regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives.
Towards this end, the State shall develop and guarantee a full, free and
open party system in order to attain the broadest possible representation
of party, sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible." (italics ours.)
The requirements for entitlement to a party-list seat in the House are
prescribed by this law (RA 7941) in this wise:
"Sec. 11. Number of Party-List Representatives. -- The party-list
representatives shall constitute twenty per centum (20%) of the total
number of the members of the House of Representatives including those
under the party-list.
For purposes of the May 1998 elections, the first five (5) major political
parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the following
procedure shall be observed:
(a) The parties, organizations, and coalitions shall be ranked
from the highest to the lowest based on the number of votes
they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least
two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each; Provided, That
those garnering more than two percent (2%) of the votes shall
be entitled to additional seats in proportion to their total
number of votes; Provided, finally, That each party,
organization, or coalition shall be entitled to not more than
three (3) seats.
Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated
Resolution No. 2847, prescribing the rules and regulations governing the
election of party-list representatives through the party-list system.
Election of the Fourteen Party-List Representatives
On May 11, 1998, the first election for party-list representation was held
simultaneously with the national elections. A total of one hundred
twenty-three (123) parties, organizations and coalitions participated. On
June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list
representatives from twelve (12) parties and organizations, which had
obtained at least two percent of the total number of votes cast for the
party-list system. Two of the proclaimed representatives belonged to
Petitioner APEC, which obtained 5.5 percent of the votes. The
proclaimed winners and the votes cast in their favor were as follows:6
Party/Organization/ Percentage
Number Nominees
Coalition Total Votes
of
66
 Votes on August 28, 1998. These organizations were COCOFED, Senior
Obtained Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI,
AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW,
Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care,
1. APEC 503,487 5.5% Rene M. Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS.
Silos
Melvyn D. On October 15, 1998, the Comelec Second Division promulgated the
Eballe present assailed Resolution granting PAG-ASA's Petition. It also
ordered the proclamation of herein 38 respondents who, in addition to
the 14 already sitting, would thus total 52 party-list representatives. It
2. ABA 321,646 3.51% Leonardo Q. held that "at all times, the total number of congressional9 seats must be
Montemayor filled up by eighty (80%) percent district representatives and twenty
(20%) percent party-list representatives." In allocating the 52 seats, it
disregarded the two percent-vote requirement prescribed under Section
3. ALAGAD 312,500 3.41% Diogenes S. 11 (b) of RA 7941. Instead, it identified three "elements of the party-list
Osabel system," which should supposedly determine "how the 52 seats should
be filled up." First, "the system was conceived to enable the marginalized
sectors of the Philippine society to be represented in the House of
4. VETERANS Eduardo P.
Representatives." Second, "the system should represent the broadest
FEDERATION 304,802 3.33% Pilapil
sectors of the Philippine society." Third, "it should encourage [the] multi-
party system." (Boldface in the original.) Considering these elements,
5. PROMDI 255,184 2.79% Joy A.G. but ignoring the two percent threshold requirement of RA 7941, it
Young concluded that "the party-list groups ranked Nos. 1 to 51 x x x should
have at least one representative." It thus disposed as follows:

6. AKO 239,042 2.61% Ariel A. "WHEREFORE, by virtue of the powers vested in it by the Constitution,
Zartiga the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other
election laws, the Commission (Second Division) hereby resolves to
GRANT the instant petition and motions for intervention, to include those
7. NCSCFO 238,303 2.60% Gorgonio P. similarly situated.
Unde
ACCORDINGLY, the nominees from the party-list hereinbelow
enumerated based on the list of names submitted by their respective
8. ABANSE! 235,548 2.57% Patricia M.
parties, organizations and coalitions are PROCLAIMED as party-list
PINAY Sarenas
representatives, to wit:

9. AKBAYAN 232,376 2.54% Loreta Ann 1. SENIOR CITIZENS

P. Rosales
2. AKAP

10. BUTIL 215,643 2.36% Benjamin A. 3. AKSYON

Cruz
4. PINATUBO
11. SANLAKAS 194,617 2.13% Renato B.
5. NUPA
Magtubo
6. PRP
12. COOP- 189,802 2.07% Cresente C.
NATCCO Paez 7. AMIN

8. PAG-ASA
After passing upon the results of the special elections held on July 4, 18,
and 25, 1998, the Comelec en banc further determined that COCOFED
9. MAHARLIKA
(Philippine Coconut Planters’ Federation, Inc.) was entitled to one party-
list seat for having garnered 186,388 votes, which were equivalent to
2.04 percent of the total votes cast for the party-list system. Thus, its first 10. OCW-UNIFIL
nominee, Emerito S. Calderon, was proclaimed on September 8, 1998
as the 14th party-list representative.7 11. FCL

On July 6, 1998, PAG-ASA (People’s Progressive Alliance for Peace 12. AMMA-KATIPUNAN
and Good Government Towards Alleviation of Poverty and Social
Advancement) filed with the Comelec a "Petition to Proclaim [the] Full 13. KAMPIL
Number of Party-List Representatives provided by the Constitution." It
alleged that the filling up of the twenty percent membership of party-list 14. BANTAY BAYAN
representatives in the House of Representatives, as provided under the
Constitution, was mandatory. It further claimed that the literal application 15. AFW
of the two percent vote requirement and the three-seat limit under RA
7941 would defeat this constitutional provision, for only 25 nominees 16. ANG LAKAS OCW
would be declared winners, short of the 52 party-list representatives who
should actually sit in the House. 17. WOMENPOWER, INC.
8
Thereafter, nine other party-list organizations filed their respective 18. FEJODAP
Motions for Intervention, seeking the same relief as that sought by PAG-
ASA on substantially the same grounds. Likewise, PAG-ASA’s Petition 19. CUP
was joined by other party-list organizations in a Manifestation they filed
67
 20. VETERANS CARE
21. 4L
22. AWATU
23. PMP
24. ATUCP
25. NCWP
26. ALU
27. BIGAS
28. COPRA
29. GREEN
30. ANAKBAYAN
31. ARBA
32. MINFA
33. AYOS
34. ALL COOP
35. PDP-LABAN
36. KATIPUNAN
37. ONEWAY PRINT
38. AABANTE KA PILIPINAS
to complete the full complement of 52 seats in the House of
Representatives as provided in Section 5, Article VI of the 1987
Constitution and R.A. 7941."
The foregoing disposition sums up a glaring bit of inconsistency and flip-
flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec
en banc had unanimously promulgated a set of "Rules and Regulations
Governing the Election of x x x Party-List Representatives Through the
Party-List System." Under these Rules and Regulations, one additional
seat shall be given for every two percent of the vote, a formula the
Comelec illustrated in its Annex "A." It apparently relied on this method
when it proclaimed the 14 incumbent party-list solons (two for APEC and
one each for the 12 other qualified parties). However, for inexplicable
reasons, it abandoned said unanimous Resolution and proclaimed,
based on its three "elements," the "Group of 38" private respondents.10
The twelve (12) parties and organizations, which had earlier been
proclaimed winners on the basis of having obtained at least two percent
of the votes cast for the party-list system, objected to the proclamation
of the 38 parties and filed separate Motions for Reconsideration. They
contended that (1) under Section 11 (b) of RA 7941, only parties,
organizations or coalitions garnering at least two percent of the votes for
the party-list system were entitled to seats in the House of
Representatives; and (2) additional seats, not exceeding two for each,
should be allocated to those which had garnered the two percent
threshold in proportion to the number of votes cast for the winning
parties, as provided by said Section 11.
Ruling of the Comelec En Banc
Noting that all the parties -- movants and oppositors alike - had agreed
that the twenty percent membership of party-list representatives in the
House "should be filled up," the Comelec en banc resolved only the
issue concerning the apportionment or allocation of the remaining seats.
In other words, the issue was: Should the remaining 38 unfilled seats
allocated to party-list solons be given (1) to the thirteen qualified parties
that had each garnered at least two percent of the total votes, or (2) to
the Group of 38 - herein private respondents - even if they had not
passed the two percent threshold?
The poll body held that to allocate the remaining seats only to those who
had hurdled the two percent vote requirement "will mean the
concentration of representation of party, sectoral or group interests in
the House of Representatives to thirteen organizations representing two
political parties, three coalitions and four sectors: urban poor, veterans,
women and peasantry x x x. Such strict application of the 2% 'threshold'
does not serve the essence and object of the Constitution and the
legislature -- to develop and guarantee a full, free and open party system
in order to attain the broadest possible representation of party, sectoral
or group interests in the House of Representatives x x x." Additionally, it
"will also prevent this Commission from complying with the constitutional
and statutory decrees for party-list representatives to compose 20% of
the House of Representatives."
Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by
a razor-thin majority -- with three commissioners concurring11 and two
members12 dissenting -- affirmed the Resolution of its Second Division.
It, however, held in abeyance the proclamation of the 51st party
(AABANTE KA PILIPINAS), "pending the resolution of petitions for
correction of manifest errors."
Without expressly declaring as unconstitutional or void the two percent
vote requirement imposed by RA 7941, the Commission blithely rejected
and circumvented its application, holding that there were more important
considerations than this statutory threshold.
Consequently, several petitions for certiorari, prohibition and
mandamus, with prayers for the issuance of temporary restraining
orders or writs of preliminary injunction, were filed before this Court by
the parties and organizations that had obtained at least two per cent of
the total votes cast for the party-list system.13 In the suits, made
respondents together with the Comelec were the 38 parties,
organizations and coalitions that had been declared by the poll body as
likewise entitled to party-list seats in the House of Representatives.
Collectively, petitioners sought the proclamation of additional
representatives from each of their parties and organizations, all of which
had obtained at least two percent of the total votes cast for the party-list
system.
On January 12, 1999, this Court issued a Status Quo Order directing the
Comelec "to CEASE and DESIST from constituting itself as a National
Board of Canvassers on 13 January 1999 or on any other date and
proclaiming as winners the nominees of the parties, organizations and
coalitions enumerated in the dispositive portions of its 15 October 1998
Resolution or its 7 January 1999 Resolution, until further orders from this
Court."
On July 1, 1999, oral arguments were heard from the parties. Atty.
Jeremias U. Montemayor appeared for petitioners in GR No. 136781;
Atty. Gregorio A. Andolana, for petitioners in GR No. 136786; Atty.
Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo
Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty.
Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P. Balbuena
for Respondent Comelec. Upon invitation of the Court, retired Comelec
Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor
General Ricardo P. Galvez appeared, not for any party but also as a
friend of the Court.
Thereafter, the parties and the amici curiae were required to submit their
respective Memoranda in amplification of their verbal arguments.14
The Issues
The Court believes, and so holds, that the main question of how to
determine the winners of the subject party-list election can be fully
settled by addressing the following issues:
1. Is the twenty percent allocation for party-list representatives
mentioned in Section 5 (2), Article VI of the Constitution,
mandatory or is it merely a ceiling? In other words, should the
68
 twenty percent allocation for party-list solons be filled up
completely and all the time?
2. Are the two percent threshold requirement and the three-
seat limit provided in Section 11 (b) of RA 7941 constitutional?
3. If the answer to Issue 2 is in the affirmative, how should the
additional seats of a qualified party be determined?
The Court’s Ruling
The Petitions are partly meritorious. The Court agrees with petitioners
that the assailed Resolutions should be nullified, but disagrees that they
should all be granted additional seats.
First Issue: Whether the Twenty Percent
Constitutional Allocation Is Mandatory
The pertinent provision15 of the Constitution on the composition of the
House of Representatives reads as follows:
"Sec. 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected by a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party-list.
For three consecutive terms after the ratification of this Constitution, one
half of the seats allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
Determination of the Total Number of Party-List Lawmakers
Clearly, the Constitution makes the number of district representatives
the determinant in arriving at the number of seats allocated for party-list
lawmakers, who shall comprise "twenty per centum of the total number
of representatives including those under the party-list." We thus translate
this legal provision into a mathematical formula, as follows:
No. of district
representatives
x .20 = No. of party-list
representatives
.80
This formulation16 means that any increase in the number of district
representatives, as may be provided by law, will necessarily result in a
corresponding increase in the number of party-list seats. To illustrate,
considering that there were 208 district representatives to be elected
during the 1998 national elections, the number of party-list seats would
be 52, computed as follows:
208
x .20 = 52
.80
The foregoing computation of seat allocation is easy enough to
comprehend. The problematic question, however, is this: Does the
Constitution require all such allocaseats to be filled up all the time and
under all circumstances? Our short answer is "No."
Twenty Percent Allocation a Mere Ceiling
The Constitution simply states that "[t]he party-list representatives shall
constitute twenty per centum of the total number of representatives
including those under the party-list."
According to petitioners, this percentage is a ceiling; the mechanics by
which it is to be filled up has been left to Congress. In the exercise of its
prerogative, the legislature enacted RA 7941, by which it prescribed that
a party, organization or coalition participating in the party-list election
must obtain at least two percent of the total votes cast for the system in
order to qualify for a seat in the House of Representatives.
Petitioners further argue that the constitutional provision must be
construed together with this legislative requirement. If there is no
sufficient number of participating parties, organizations ted or coalitions
which could hurdle the two percent vote threshold and thereby fill up the
twenty percent party-list allocation in the House, then naturally such
allocation cannot be filled up completely. The Comelec cannot be faulted
for the "incompleteness," for ultimately the voters themselves are the
ones who, in the exercise of their right of suffrage, determine who and
how many should represent them.
On the other hand, Public Respondent Comelec, together with the
respondent parties, avers that the twenty percent allocation for party-list
lawmakers is mandatory, and that the two percent vote requirement in
RA 7941 is unconstitutional, because its strict application would make it
mathematically impossible to fill up the House party-list complement.
We rule that a simple reading of Section 5, Article VI of the Constitution,
easily conveys the equally simple message that Congress was vested
with the broad power to define and prescribe the mechanics of the party-
list system of representation. The Constitution explicitly sets down only
the percentage of the total membership in the House of Representatives
reserved for party-list representatives.
In the exercise of its constitutional prerogative, Congress enacted RA
7941. As said earlier, Congress declared therein a policy to promote
"proportional representation" in the election of party-list representatives
in order to enable Filipinos belonging to the marginalized and
underrepresented sectors to contribute legislation that would benefit
them. It however deemed it necessary to require parties, organizations
and coalitions participating in the system to obtain at least two percent
of the total votes cast for the party-list system in order to be entitled to a
party-list seat. Those garnering more than this percentage could have
"additional seats in proportion to their total number of votes."
Furthermore, no winning party, organization or coalition can have more
than three seats in the House of Representatives. Thus the relevant
portion of Section 11(b) of the law provides:
"(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be
entitled to one seat each; Provided, That those garnering more than two
percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes; Provided, finally, That each
party, organization, or coalition shall be entitled to not more than three
(3) seats."
Considering the foregoing statutory requirements, it will be shown
presently that Section 5 (2), Article VI of the Constitution is not
mandatory. It merely provides a ceiling for party-list seats in Congress.
On the contention that a strict application of the two percent threshold
may result in a "mathematical impossibility," suffice it to say that the
prerogative to determine whether to adjust or change this percentage
requirement rests in Congress.17 Our task now, as should have been the
Comelec’s, is not to find fault in the wisdom of the law through highly
unlikely scenarios of clinical extremes, but to craft an innovative
mathematical formula that can, as far as practicable, implement it within
the context of the actual election process.
Indeed, the function of the Supreme Court, as well as of all judicial and
quasi-judicial agencies, is to apply the law as we find it, not to reinvent
or second-guess it. Unless declared unconstitutional, ineffective,
insufficient or otherwise void by the proper tribunal, a statute remains a
valid command of sovereignty that must be respected and obeyed at all
times. This is the essence of the rule of law.
69
Second Issue: The Statutory Requirement and Limitation
The Two Percent Threshold
In imposing a two percent threshold, Congress wanted to ensure that
only those parties, organizations and coalitions having a sufficient
number of constituents deserving of representation are actually
represented in Congress. This intent can be gleaned from the
deliberations on the proposed bill. We quote below a pertinent portion of
the Senate discussion:
"SENATOR GONZALES: For purposes of continuity, I would want to
follow up a point that was raised by, I think, Senator Osmeña when he
said that a political party must have obtained at least a minimum
percentage to be provided in this law in order to qualify for a seat under
the party-list system.
They do that in many other countries. A party must obtain at least 2
percent of the votes cast, 5 percent or 10 percent of the votes cast.
Otherwise, as I have said, this will actually proliferate political party
groups and those who have not really been given by the people sufficient
basis for them to represent their constituents and, in turn, they will be
able to get to the Parliament through the backdoor under the name of
the party-list system, Mr. President."18
A similar intent is clear from the statements of the bill sponsor in the
House of Representatives, as the following shows:
"MR. ESPINOSA. There is a mathematical formula which this
computation is based at, arriving at a five percent ratio which would
distribute equitably the number of seats among the different sectors.
There is a mathematical formula which is, I think, patterned after that of
the party list of the other parliaments or congresses, more particularly
the Bundestag of Germany."19
Moreover, even the framers of our Constitution had in mind a minimum-
vote requirement, the specification of which they left to Congress to
properly determine. Constitutional Commissioner Christian S. Monsod
explained:
"MR. MONSOD. x x x We are amenable to modifications in the minimum
percentage of votes. Our proposal is that anybody who has two-and-a-
half percent of the votes gets a seat. There are about 20 million who cast
their votes in the last elections. Two-and-a-half percent would mean
500,000 votes. Anybody who has a constituency of 500,000 votes
nationwide deserves a seat in the Assembly. If we bring that down to
two percent, we are talking about 400,000 votes. The average vote per
family is three. So, here we are talking about 134,000 families. We
believe that there are many sectors who will be able to get seats in the
Assembly because many of them have memberships of over 10,000. In
effect, that is the operational implication of our proposal. What we are
trying to avoid is this selection of sectors, the reserve seat system. We
believe that it is our job to open up the system and that we should not
have within that system a reserve seat. We think that people should
organize, should work hard, and should earn their seats within that
system."20
The two percent threshold is consistent not only with the intent of the
framers of the Constitution and the law, but with the very essence of
"representation." Under a republican or representative state, all
government authority emanates from the people, but is exercised by
representatives chosen by them.21 But to have meaningful
representation, the elected persons must have the mandate of a
sufficient number of people. Otherwise, in a legislature that features the
party-list system, the result might be the proliferation of small groups
which are incapable of contributing significant legislation, and which
might even pose a threat to the stability of Congress. Thus, even
legislative districts are apportioned according to "the number of their
respective inhabitants, and on the basis of a uniform and progressive
ratio"22 to ensure meaningful local representation.
All in all, we hold that the statutory provision on this two percent
requirement is precise and crystalline. When the law is clear, the function
of courts is simple application, not interpretation or circumvention.23
The Three-Seat-Per-Party Limit
An important consideration in adopting the party-list system is to
promote and encourage a multiparty system of representation. Again,
we quote Commissioner Monsod:
"MR. MONSOD. Madam President, I just want to say that we suggested
or proposed the party list system because we wanted to open up the
political system to a pluralistic society through a multiparty system. But
we also wanted to avoid the problems of mechanics and operation in the
implementation of a concept that has very serious shortcomings of
classification and of double or triple votes. We are for opening up the
system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of
representatives from any single party that can sit within the 50 allocated
under the party list system. This way, we will open it up and enable
sectoral groups, or maybe regional groups, to earn their seats among
the fifty. x x x."24
Consistent with the Constitutional Commission's pronouncements,
Congress set the seat-limit to three (3) for each qualified party,
organization or coalition. "Qualified" means having hurdled the two
percent vote threshold. Such three-seat limit ensures the entry of various
interest-representations into the legislature; thus, no single group, no
matter how large its membership, would dominate the party-list seats, if
not the entire House.
We shall not belabor this point, because the validity of the three-seat
limit is not seriously challenged in these consolidated cases.
Third Issue: Method of Allocating Additional Seats
Having determined that the twenty percent seat allocation is merely a
ceiling, and having upheld the constitutionality of the two percent vote
threshold and the three-seat limit imposed under RA 7941, we now
proceed to the method of determining how many party-list seats the
qualified parties, organizations and coalitions are entitled to. The very
first step - there is no dispute on this - is to rank all the participating
parties, organizations and coalitions (hereafter collectively referred to as
"parties") according to the votes they each obtained. The percentage of
their respective votes as against the total number of votes cast for the
party-list system is then determined. All those that garnered at least two
percent of the total votes cast have an assured or guaranteed seat in
the House of Representatives. Thereafter, "those garnering more than
two percent of the votes shall be entitled to additional seats in proportion
to their total number of votes." The problem is how to distribute additional
seats "proportionally," bearing in mind the three-seat limit further
imposed by the law.
One Additional Seat Per Two Percent Increment
One proposed formula is to allocate one additional seat for every
additional proportion of the votes obtained equivalent to the two percent
vote requirement for the first seat.25 Translated in figures, a party that
wins at least six percent of the total votes cast will be entitled to three
seats; another party that gets four percent will be entitled to two seats;
and one that gets two percent will be entitled to one seat only. This
proposal has the advantage of simplicity and ease of comprehension.
Problems arise, however, when the parties get very lop-sided votes --
for example, when Party A receives 20 percent of the total votes cast;
Party B, 10 percent; and Party C, 6 percent. Under the method just
described, Party A would be entitled to 10 seats; Party B, to 5 seats and
Party C, to 3 seats. Considering the three-seat limit imposed by law, all
the parties will each uniformly have three seats only. We would then
have the spectacle of a party garnering two or more times the number
of votes obtained by another, yet getting the same number of seats as
the other one with the much lesser votes. In effect, proportional
representation will be contravened and the law rendered nugatory by
this suggested solution. Hence, the Court discarded it.
The Niemeyer Formula
Another suggestion that the Court considered was the Niemeyer
formula, which was developed by a German mathematician and adopted
by Germany as its method of distributing party-list seats in the
70
Bundestag. Under this formula, the number of additional seats to which Total 3,429,3 13 32 7 52
a qualified party would be entitled is determined by multiplying the 38
remaining number of seats to be allocated by the total number of votes
obtained by that party and dividing the product by the total number of
votes garnered by all the qualified parties. The integer portion of the However, since Section 11 of RA 7941 sets a limit of three (3) seats for
resulting product will be the number of additional seats that the party each party, those obtaining more than the limit will have to give up their
concerned is entitled to. Thus: excess seats. Under our present set of facts, the thirteen qualified
parties will each be entitled to three seats, resulting in an overall total of
39. Note that like the previous proposal, the Niemeyer formula would
No. of remaining violate the principle of "proportional representation," a basic tenet of our
seats party-list system.
to be allocated
No. of votes No. of additional
of seats of party The Niemeyer formula, while no doubt suitable for Germany, finds no
x = application in the Philippine setting, because of our three-seat limit and
party concerned
concerned (Integer.decimal) the non-mandatory character of the twenty percent allocation. True, both
Total no. of votes our Congress and the Bundestag have threshold requirements -- two
of percent for us and five for them. There are marked differences between
qualified parties the two models, however. As ably pointed out by private
respondents,26 one half of the German Parliament is filled up by party-
The next step is to distribute the extra seats left among the qualified list members. More important, there are no seat limitations, because
parties in the descending order of the decimal portions of the resulting German law discourages the proliferation of small parties. In contrast,
products. Based on the 1998 election results, the distribution of party- RA 7941, as already mentioned, imposes a three-seat limit to encourage
list seats under the Niemeyer method would be as follows: the promotion of the multiparty system. This major statutory difference
makes the Niemeyer formula completely inapplicable to the Philippines.

Party Number Guarante Addition Extr Tot Just as one cannot grow Washington apples in the Philippines or
of ed al a al Guimaras mangoes in the Arctic because of fundamental environmental
Votes Seats Seat differences, neither can the Niemeyer formula be transplanted in toto
s here because of essential variances between the two party-list The party
receiving the highest number of votes shall thenceforth be referred to as
the "first" party.
1. APEC 503,487 1 5.73 1 7
Step Two. The next step is to determine the number of seats the first
2. ABA 321,646 1 3.66 1 5 party is entitled to, in order to be able to compute that for the other
parties. Since the distribution is based on proportional representation,
the number of seats to be allotted to the other parties cannot possibly
3. ALAGAD 312,500 1 3.55 4 exceed that to which the first party is entitled by virtue of its obtaining
the most number of votes.

4. 304,802 1 3.47 4 models.

VETERANS
FEDERATI The Legal and Logical Formula for the Philippines
ON
It is now obvious that the Philippine style party-list system is a unique
5. PROMDI 255,184 1 2.90 1 4 paradigm which demands an equally unique formula. In crafting a legally
defensible and logical solution to determine the number of additional
seats that a qualified party is entitled to, we need to review the
6. AKO 239,042 1 2.72 1 4 parameters of the Filipino party-list system.

As earlier mentioned in the Prologue, they are as follows:

7. NCSCFO 238,303 1 2.71 1 4
First, the twenty percent allocation - the combined number of
all party-list congressmen shall not exceed twenty percent of
8. ABANSE! 235,548 1 2.68 1 4
the total membership of the House of Representatives,
PINAY
including those elected under the party list.

9. 232,376 1 2.64 4 Second, the two percent threshold - only those parties
AKBAYAN garnering a minimum of two percent of the total valid votes
cast for the party-list system are "qualified" to have a seat in
the House of Representatives;
10. BUTIL 215,643 1 2.45 3
Third, the three-seat limit - each qualified party, regardless of
the number of votes it actually obtained, is entitled to a
11. 194,617 1 2.21 3 maximum of three seats; that is, one "qualifying" and two
SANLAKAS additional seats.

12. COOP- 189,802 1 2.16 3 Fourth, proportional representation - the additional seats
NATCCO which a qualified party is entitled to shall be computed "in
proportion to their total number of votes."

13. 186,388 1 2.12 3 The problem, as already stated, is to find a way to translate "proportional
COCOFED representation" into a mathematical formula that will not contravene,
circumvent or amend the above-mentioned parameters.

After careful deliberation, we now explain such formula, step by step.

71
Step One. There is no dispute among the petitioners, the public and the
private respondents, as well as the members of this Court, that the initial
step is to rank all the participating parties, organizations and coalitions
from the highest to the lowest based on the number of votes they each
received. Then the ratio for each party is computed by dividing its votes
by the total votes cast for all the parties participating in the system. All
parties with at least two percent of the total votes are guaranteed one
seat each. Only these parties shall be considered in the computation of
additional seats.
For example, the first party received 1,000,000 votes and is determined
to be entitled to two additional seats. Another qualified party which
received 500,000 votes cannot be entitled to the same number of seats,
since it garnered only fifty percent of the votes won by the first party.
Depending on the proportion of its votes relative to that of the first party
whose number of seats has already been predetermined, the second
party should be given less than that to which the first one is entitled.
The other qualified parties will always be allotted less additional seats
than the first party for two reasons: (1) the ratio between said parties and
the first party will always be less than 1:1, and (2) the formula does not
admit of mathematical rounding off, because there is no such thing as a
fraction of a seat. Verily, an arbitrary rounding off could result in a
violation of the twenty percent allocation. An academic mathematical
demonstration of such incipient violation is not necessary because the
present set of facts, given the number of qualified parties and the voting
percentages obtained, will definitely not end up in such constitutional
contravention.
The Court has previously ruled in Guingona Jr. v. Gonzales27 that a
fractional membership cannot be converted into a whole membership of
one when it would, in effect, deprive another party's fractional
membership. It would be a violation of the constitutional mandate of
proportional representation. We said further that "no party can claim
more than what it is entitled to x x x."
maximum number of party-list seats reserved in the House of
Representatives.1âwphi1
Applying the above formula, APEC, which received 5.5% of the total
votes cast, is entitled to one additional seat or a total of two seats.
Note that the above formula will be applicable only in determining the
number of additional seats the first party is entitled to. It cannot be used
to determine the number of additional seats of the other qualified parties.
As explained earlier, the use of the same formula for all would
contravene the proportional representation parameter. For example, a
second party obtains six percent of the total number of votes cast.
According to the above formula, the said party would be entitled to two
additional seats or a total of three seats overall. However, if the first party
received a significantly higher amount of votes -- say, twenty percent --
to grant it the same number of seats as the second party would violate
the statutory mandate of proportional representation, since a party
getting only six percent of the votes will have an equal number of
representatives as the one obtaining twenty percent. The proper
solution, therefore, is to grant the first party a total of three seats; and
the party receiving six percent, additional seats in proportion to those of
the first party.
Formula for Additional Seats of Other Qualified Parties
Step Three The next step is to solve for the number of additional seats
that the other qualified parties are entitled to, based on proportional
representation. The formula is encompassed by the following complex
fraction:
No. of votes of
concerned party

In any case, the decision on whether to round off the fractions is better Total No. of votes
left to the legislature. Since Congress did not provide for it in the present for party-list system No. of
law, neither will this Court. The Supreme Court does not make the law; Additional seats additional
it merely applies it to a given set of facts. for concerned = x seats allocated
party to
Formula for Determining Additional Seats for the First Party No. of votes of the first party
first party
Now, how do we determine the number of seats the first party is entitled
to? The only basis given by the law is that a party receiving at least two
percent of the total votes shall be entitled to one seat. Proportionally, if
the first party were to receive twice the number of votes of the second Total No. of
party, it should be entitled to twice the latter's number of seats and so for party list system
on. The formula, therefore, for computing the number of seats to which
the first party is entitled is as follows: In simplified form, it is written as follows:

Number of votes No. of votes of

of first party concerned party
Proportion of votes of Additional seats No. of additional
= first party relative to for concerned = x seats allocated to
total votes for party-list system party the first party
Total votes for No. of votes of
party-list system first party

If the proportion of votes received by the first party without rounding it off Thus, in the case of ABA, the additional number of seats it
is equal to at least six percent of the total valid votes cast for all the party would be entitled to is computed as follows:
list groups, then the first party shall be entitled to two additional seats or
a total of three seats overall. If the proportion of votes without a rounding
off is equal to or greater than four percent, but less than six percent, then No. of votes
the first party shall have one additional or a total of two seats. And if the of ABA
proportion is less than four percent, then the first party shall not be
Additional seats No. of additional
entitled to any additional seat.
for concerned = x seats allocated to
party (ABA) the first party
We adopted this six percent bench mark, because the first party is not No. of vites of
always entitled to the maximum number of additional seats. Likewise, it first party
would prevent the allotment of more than the total number of available (APEC)
seats, such as in an extreme case wherein 18 or more parties tie for the
highest rank and are thus entitled to three seats each. In such scenario,
the number of seats to which all the parties are entitled may exceed the
72
 Substituting actual values would result in the following 12. COOP- 189,802 2.07% 1 189,802 / 1
equation: NATCCO 503,487 *
1 = 0.38
321,646
.64 or 0 additional
Additional seats
x1 seat, since 13. COCOFED 186,388 2.04% 1 186,388 / 1
for concerned =
= rounding off is not 503,487 *
party (ABA)
to be applied 1 = 0.37
503,487

Incidentally, if the first party is not entitled to any additional seat, then
Applying the above formula, we find the outcome of the 1998
the ratio of the number of votes for the other party to that for the first one
party-list election to be as follows:
is multiplied by zero. The end result would be zero additional seat for
each of the other qualified parties as well.
Organization Votes %age Initial Additional Total
Garnered of No. Seats The above formula does not give an exact mathematical representation
Total of of the number of additional seats to be awarded since, in order to be
Votes Seats entitled to one additional seat, an exact whole number is necessary. In
fact, most of the actual mathematical proportions are not whole numbers
and are not rounded off for the reasons explained earlier. To repeat,
1. APEC 503,487 5.50% 1 1 2 rounding off may result in the awarding of a number of seats in excess
of that provided by the law. Furthermore, obtaining absolute proportional
representation is restricted by the three-seat-per-party limit to a
2. ABA 321,646 3.51% 1 321,646 / 1 maximum of two additional slots. An increase in the maximum number
503,487 * of additional representatives a party may be entitled to would result in a
1 = 0.64 more accurate proportional representation. But the law itself has set the
limit: only two additional seats. Hence, we need to work within such
3. ALAGAD 312,500 3.41% 1 312,500 / 1 extant parameter.
503,487 *
1 = 0.62 The net result of the foregoing formula for determining additional seats
happily coincides with the present number of incumbents; namely, two
for the first party (APEC) and one each for the twelve other qualified
4. VETERANS 304,802 3.33% 1 304,802 / 1 parties. Hence, we affirm the legality of the incumbencies of their
FEDERATION 503,487 * nominees, albeit through the use of a different formula and methodology.
1 = 0.61
In his Dissent, Justice Mendoza criticizes our methodology for being too
strict. We say, however, that our formula merely translated the Philippine
5. PROMDI 255,184 2.79% 1 255,184 / 1 legal parameters into a mathematical equation, no more no less. If
503,487 * Congress in its wisdom decides to modify RA 7941 to make it "less
1 = 0.51 strict," then the formula will also be modified to reflect the changes willed
by the lawmakers.
6. AKO 239,042 2.61% 1 239,042 / 1
Epilogue
503,487 *
1 = 0.47
In sum, we hold that the Comelec gravely abused its discretion in ruling
that the thirty-eight (38) herein respondent parties, organizations and
7. NCSFO 238,303 2.60% 1 238,303 / 1 coalitions are each entitled to a party-list seat, because it glaringly
503,487 * violated two requirements of RA 7941: the two percent threshold and
1 = 0.47 proportional representation.

In disregarding, rejecting and circumventing these statutory provisions,

8. ABANSE! 235,548 2.57% 1 321,646 / 1 the Comelec effectively arrogated unto itself what the Constitution
503,487 * expressly and wholly vested in the legislature: the power and the
1 = 0.47 discretion to define the mechanics for the enforcement of the system.
The wisdom and the propriety of these impositions, absent any clear
transgression of the Constitution or grave abuse of discretion amounting
PINAY to lack or excess of jurisdiction, are beyond judicial review.28

9. AKBAYAN! 232,376 2.54% 1 232,376 / 1 Indeed, the Comelec and the other parties in these cases - both
503,487 * petitioners and respondents - have failed to demonstrate that our
1 = 0.46 lawmakers gravely abused their discretion in prescribing such
requirements. By grave abuse of discretion is meant such capricious or
whimsical exercise of judgment equivalent to lack or excess of
10. BUTIL 215,643 2.36% 1 215,643 / jurisdiction.29
503,487 *
1 = 0.43 1 The Comelec, which is tasked merely to enforce and administer election-
related laws,30 cannot simply disregard an act of Congress exercised
within the bounds of its authority. As a mere implementing body, it
11. SANLAKAS 194,617 2.13% 1 194,617 / 1 cannot judge the wisdom, propriety or rationality of such act. Its recourse
503,487 * is to draft an amendment to the law and lobby for its approval and
1 = 0.39 enactment by the legislature.

Furthermore, a reading of the entire Constitution reveals no violation of

any of its provisions by the strict enforcement of RA 7941. It is basic that
to strike down a law or any of its provisions as unconstitutional, there

73
must be a clear and unequivocal showing that what the Constitution
prohibits, the statute permits.31
Neither can we grant petitioners’ prayer that they each be given
additional seats (for a total of three each), because granting such plea
would plainly and simply violate the "proportional representation"
mandated by Section 11 (b) of RA 7941.
The low turnout of the party-list votes during the 1998 elections should
not be interpreted as a total failure of the law in fulfilling the object of this
new system of representation. It should not be deemed a conclusive
indication that the requirements imposed by RA 7941 wholly defeated
the implementation of the system. Be it remembered that the party-list
system, though already popular in parliamentary democracies, is still
quite new in our presidential system. We should allow it some time to
take root in the consciousness of our people and in the heart of our
tripartite form of republicanism. Indeed, the Comelec and the defeated
litigants should not despair.
Quite the contrary, the dismal result of the first election for party-list
representatives should serve as a challenge to our sectoral parties and
organizations. It should stir them to be more active and vigilant in their
campaign for representation in the State's lawmaking body. It should
also serve as a clarion call for innovation and creativity in adopting this
novel system of popular democracy.
With adequate information dissemination to the public and more active
sectoral parties, we are confident our people will be more responsive to
future party-list elections. Armed with patience, perseverance and
perspicacity, our marginalized sectors, in time, will fulfill the Filipino
dream of full representation in Congress under the aegis of the party-list
system, Philippine style.
WHEREFORE, the Petitions are hereby partially GRANTED. The
assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED.
The proclamations of the fourteen (14) sitting party-list representatives -
two for APEC and one each for the remaining twelve (12) qualified
parties - are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
BANAT VS. COMELEC
SEE SEPARATE PAGE
BENJAMIN U. BORJA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO,
JR., respondents.
MENDOZA, J.:
This case presents for determination the scope of the constitutional
provision barring elective local officials, with the exception of barangay
officials, from serving more than three consecutive terms. In particular,
the question is whether a vice-mayor who succeeds to the office of
mayor by operation of law and serves the remainder of the term is
considered to have served a term in that office for the purpose of the
three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of
Pateros on January 18, 1988 for a term ending June 30, 1992. On
September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30, 1995.
On May 8, 1995, he was reelected mayor for another term of three years
ending June 30, 1998.1
On March 27, 1998, private respondent Capco filed a certificate of
candidacy for mayor of Pateros relative to the May 11, 1998 elections.
Petitioner Benjamin U. Borja Jr., who was also a candidate for mayor,
sought Capco's disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998
and would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections
ruled in favor of petitioner and declared private respondent Capco
disqualified from running for reelection as mayor of Pateros. 2 However,
on motion of private respondent the COMELEC en banc, voting 5-2,
reversed the decision and declared Capco eligible to run for mayor in
the May 11, 1998 elections. 3 The majority stated in its decision:
In both the Constitution and the Local Government Code, the
three-term limitation refers to the term of office for which the
local official was elected. It made no reference to succession
to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the
position of Mayor in the January 18, 1988 local elections. He
succeeded to such office by operation of law and served for
the unexpired term of his predecessor. Consequently, such
succession into office is not counted as one (1) term for
purposes of the computation of the three-term limitation under
the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He
received 16,558 votes against petitioner's 7,773 votes and was
proclaimed elected by the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated
My 7, 1998, of the COMELEC and to seek a declaration that private
respondent is disqualified to serve another term as mayor of Pateros,
Metro Manila.
Petitioner contends that private respondent Capco's service as mayor
from September 2, 1989 to June 30, 1992 should be considered as
service for one full term, and since he thereafter served from 1992 to
1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, §8 of the
Constitution and §43(b) of the Local Government Code. Petitioner
stresses the fact that, upon the death of Mayor Cesar Borja on
September 2, 1989, private respondent became the mayor and
thereafter served the remainder of the term. Petitioner argues that it is
irrelevant that private respondent became mayor by succession
because the purpose of the constitutional provision in limiting the
number of terms elective local officials may serve is to prevent a
monopolization of political power.
This contention will not bear analysis. Article X, §8 of the Constitution
provides:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was
elected.
This provision is restated in §43(b) of the Local Government Code (R.A.
No. 7160):
Sec. 43. Term of Office. — . . .
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for
the full term for which the elective official concerned was
elected. . . .
First, to prevent the establishment of political dynasties is not the only
policy embodied in the constitutional provision in question. The other
policy is that of enhancing the freedom of choice of the people. To
74
consider, therefore, only stay in office regardless of how the official
concerned came to that office — whether by election or by succession
by operation of law — would be to disregard one of the purposes of the
constitutional provision in question.
Thus, a consideration of the historical background of Article X, §8 of the
Constitution reveals that the members of the Constitutional Commission
were as much concerned with preserving the freedom of choice of the
people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner
Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner
Christian Monsod that such officials be simply barred from running for
the same position in the of the succeeding election following the
expiration of the third consecutive term. 4 Monsod warned against
"prescreening candidates [from] whom the people will choose" as a
result of the proposed absolute disqualification, considering that the draft
constitution contained provisions "recognizing people's power." 5
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall
impose a temporary or a perpetual disqualification on those
who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional
Commission. I would be very wary about this Commission
exercising a sort of omnipotent power in order to disqualify
those who will already have served their terms from
perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the
excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service — in the case
of the President, six years, in the case of the Vice-President,
unlimited; and in the case of the Senators, one reelection. In
the case of the Members of Congress, both from the
legislative districts and from the party list and sectoral
representation, this is now under discussion and later on the
policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the
same. I think we want to prevent future situations where, as a
result of continuous service and frequent reelections, officials
from the President down to the municipal mayor tend to
develop a proprietary interest in their positions and to
accumulate those powers and perquisites that permit them to
stay on indefinitely or to transfer these posts to members of
their families in a subsequent election. I think that is taken care
of because we put a gap on the continuity or the unbroken
service of all of these officials. But where we now decide to
put these prospective servants of the people or politicians, if
we want to use the coarser term, under a perpetual
disqualification, I have a feeling that we are taking away too
much from the people, whereas we should be giving as much
to the people as we can in terms of their own freedom of
choice. . . . 6
Other commissioners went on record against "perpetually disqualifying"
elective officials who have served a certain number of terms as this
would deny the right of the people to choose. As Commissioner Yusup
R. Abubakar asked, "why should we arrogate unto ourselves the right to
decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she
called on her colleagues to "allow the people to exercise their own sense
of proportion and [rely] on their own strength to curtail power when it
overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave
[perpetual disqualification after serving a number of terms] to the
premise accepted by practically everybody here that our people are
politically mature? Should we use this assumption only when it is
convenient for us, and not when it may also lead to a freedom of choice
for the people and for politicians who may aspire to serve them
longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term,
derived from the concern about the accumulation of power as a result of
a prolonged stay in office. The second is the idea of election, derived
from the concern that the right of the people to choose those whom they
wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were
serving by reason of election. This is clear from the following exchange
in the Constitutional Commission concerning term limits, now embodied
in Art. VI, §§4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to
the issue after the second term. We will allow the Senator to
rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before —
if the Gentlemen will remember — was: How long will that
period of rest be? Will it be one election which is three years
or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner
Rodrigo expressed the view that during the election following
the expiration of the first 12 years, whether such election will
be on the third year or on the sixth year thereafter, this
particular member of the Senate can run. So, it is not really a
period of hibernation for six years. That was the Committee's
stand. 10
Indeed a fundamental tenet of representative democracy is that the
people should be allowed to choose those whom they please to govern
them. 11 To bar the election of a local official because he has already
served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this
principle.
Second, not only historical examination but textual analysis as well
supports the ruling of the COMELEC that Art. X, §8 contemplates service
by local officials for three consecutive terms as a result of election. The
first sentence speaks of "the term of office of elective local officials" and
bars "such official[s]" from serving for more than three consecutive
terms. The second sentence, in explaining when an elective local official
may be deemed to have served his full term of office, states that
"voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected." The term served must therefore be
one "for which [the official concerned] was elected." The purpose of this
provision is to prevent a circumvention of the limitation on the number of
terms an elective local official may serve. Conversely, if he is not serving
a term for which he was elected because he is simply continuing the
service of the official he succeeds, such official cannot be considered to
have fully served the term notwithstanding his voluntary renunciation of
office prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, §7,
which similarly bars members of the House of Representatives from
serving for more than three terms. Commissioner Bernas states that "if
one is elected Representative to serve the unexpired term of another,
that unexpired term, no matter how short, will be considered one term
for the purpose of computing the number of successive terms
allowed." 12
This is actually based on the opinion expressed by Commissioner
Davide in answer to a query of Commissioner Suarez: "For example, a
special election is called for a Senator, and the Senator newly elected
would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one
term? So, half a term, which is actually the correct statement, plus one
term would disqualify the Senator concerned from running? Is that the
meaning of this provision on disqualification, Madam President?"
Commissioner Davide said: "Yes, because we speak of "term," and if
there is a special election, he will serve only for the unexpired portion of
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that particular term plus one more term for the Senator and two more
terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and
that of a member of the House of Representatives who succeeds
another who dies, resigns, becomes incapacitated, or is removed from
office. The vice-mayor succeeds to the mayorship by operation of
law. 14 On the other hand, the Representative is elected to fill the
vacancy. 15 In a real sense, therefore, such Representative serves a
term for which he was elected. As the purpose of the constitutional
provision is to limit the right to be elected and to serve in Congress, his
service of the unexpired term is rightly counted as his first term. Rather
than refute what we believe to be the intendment of Art. X, §8 with regard
to elective local officials, the case of a Representative who succeeds
another confirms the theory.
Petitioner also cites Art. VII, §4 of the Constitution which provides for
succession of the Vice-President to the Presidency in case of vacancy
in that office. After stating that "The President shall not be eligible for
any reelection," this provision says that "No person who has succeeded
as President and has served as such for more than four years shall be
qualified for election to the same office at any time." Petitioner contends
that, by analogy, the vice-mayor should likewise be considered to have
served a full term as mayor if he succeeds to the latter's office and
serves for the remainder of the term.
The framers of the Constitution included such a provision because,
without it, the Vice-President, who simply steps into the Presidency by
succession, would be qualified to run President even if he has occupied
that office for more than four years. The absence of a similar provision
in Art. X, §8 on elective local officials throws in bold relief the difference
between the two cases. It underscores the constitutional intent to cover
only the terms of office to which one may have been elected for
purposes of the three-term limit on local elective officials, disregarding
for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the
Presidency and serves in that office for more than four years is ineligible
for election as President. The Vice-President is elected primarily to
succeed the President in the event of the latter's death, permanent
disability, removal, or resignation. While he may be appointed to the
cabinet, his becoming, so is entirely dependent on the good graces of
the President. In running for Vice-President, he may thus be said to also
seek the Presidency. For their part, the electors likewise choose as Vice-
President the candidate who they think can fill the Presidency in the
event it becomes vacant. Hence, service in the Presidency for more than
four years may rightly be considered as service for a full term.
This is not so in the case of the vice-mayor. Under the Local Government
Code, he is the presiding officer of the sanggunian and he appoints all
officials and employees of such local assembly. He has distinct powers
and functions, succession to mayorship in the event of vacancy therein
being only one of
them. 16 It cannot be said of him, as much as of the Vice-President in the
event of a vacancy in the Presidency, that, in running for vice-mayor, he
also seeks the mayorship. His assumption of the mayorship in the event
of vacancy is more a matter of chance than of design. Hence, his service
in that office should not be counted in the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve in the same
elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of
times before the disqualification can apply. This point can be made
clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor
by reason of the death of the incumbent. Six months before
the next election, he resigns and is twice elected thereafter.
Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor
by succession and subsequently resigned from office before
the full term expired, he has not actually served three full
terms in all for the purpose of applying the term limit. Under
Art. X, §8, voluntary renunciation of the office is not
considered as an interruption in the continuity of his service
for the full term only if the term is one "for which he was
elected." Since A is only completing the service of the term for
which the deceased and not he was elected, A cannot be
considered to have completed one term. His resignation
constitutes an interruption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first
term, he is twice suspended for misconduct for a total of 1
year. If he is twice reelected after that, can he run for one
more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two
conditions for the application of the disqualification provisions have not
concurred, namely, that the local official concerned has been elected
three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have
served three full terms notwithstanding his resignation before the end of
the first term, the fact remains that he has not been elected three times.
In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor
by succession involves a total failure of the two conditions to
concur for the purpose of applying Art. X, §8. Suppose he is
twice elected after that term, is he qualified to run again in the
next election?
Yes, because he was not elected to the office of mayor in the
first term but simply found himself thrust into it by operation of
law. Neither had he served the full term because he only
continued the service, interrupted by the death, of the
deceased mayor.
To consider C in the third case to have served the first term in full and
therefore ineligible to run a third time for reelection would be not only to
falsify reality but also to unduly restrict the right of the people to choose
whom they wish to govern them. If the vice-mayor turns out to be a bad
mayor, the people can remedy the situation by simply not reelecting him
for another term. But if, on the other hand, he proves to be a good mayor,
there will be no way the people can return him to office (even if it is just
the third time he is standing for reelection) if his service of the first term
is counted as one for the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the people
should be protected from the evils that a monopoly of political power may
bring about, care should be taken that their freedom of choice is not
unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
ARSENIO A. LATASA, petitioner,
vs.
COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court which
seeks to challenge the resolution issued by the First Division of the
Commission on Elections (COMELEC) dated April 27, 2001 in SPA
Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio
A. Latasa, respondent, and the Resolution of the COMELEC en
banc denying herein petitioner’s Motion for Reconsideration. The
76
assailed Resolution denied due course to the certificate of candidacy of
petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor
of Digos City, Davao del Sur Province in the May 14, 2001 elections,
ordering that all votes cast in his favor shall not be counted, and if he
has been proclaimed winner, declaring said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of
Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During
petitioner’s 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 petitioner’s 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.
On March 1, 2001, private respondent Romeo M. Sunga, also a
candidate for city mayor in the said elections, filed before the COMELEC
a Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or
For Disqualification1against petitioner Latasa. Respondent Sunga
alleged therein that petitioner falsely represented in his certificate of
candidacy that he is eligible to run as mayor of Digos City since petitioner
had already been elected and served for three consecutive terms as
mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that he
did not make any false representation in his certificate of candidacy
since he fully disclosed therein that he had served as mayor of the
Municipality of Digos for three consecutive terms. Moreover, he argued
that this fact does not bar him from filing a certificate of candidacy for
the May 14, 2001 elections since this will be the first time that he will be
running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001. 3
On April 27, 2001, respondent COMELEC’s First Division issued a
Resolution, the dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondent’s certificate of
candidacy should be cancelled for being a violation of the three (3)-term
rule proscribed by the 1987 Constitution and the Local Government
Code of 1991.4
Petitioner filed his Motion for Reconsideration dated May 4, 2001,5 which
remained unacted upon until the day of the elections, May 14, 2001. On
May 16, 2001, private respondent Sunga filed an Ex Parte Motion for
Issuance of Temporary Restraining Order Enjoining the City Board of
Canvassers From Canvassing or Tabulating Respondent’s Votes, and
From Proclaiming Him as the Duly Elected Mayor if He Wins the
Elections.6 Despite this, however, petitioner Latasa was still proclaimed
winner on May 17, 2001, having garnered the most number of votes.
Consequently, private respondent Sunga filed, on May 27, 2001, a
Supplemental Motion7 which essentially sought the annulment of
petitioner’s proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the
newly elected mayor of Digos City. It was only on August 27, 2002 that
the COMELEC en banc issued a Resolution denying petitioner’s Motion
for Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held in Mamba-Perez
v. COMELEC8 that after an elective official has been proclaimed as
winner of the elections, the COMELEC has no jurisdiction to pass upon
his qualifications. An opposing party’s remedies after proclamation
would be to file a petition for quo warranto within ten days after the
proclamation.
On the other hand, certain peculiarities in the present case reveal the
fact that its very heart is something which this Court considers of
paramount interest. This Court notes from the very beginning that
petitioner himself was already entertaining some doubt as to whether or
not he is indeed eligible to run for city mayor in the May 14, 2001
elections. In his certificate of candidacy, after the phrase "I am eligible",
petitioner inserted a footnote and indicated:
*
Having served three (3) term[s] as municipal mayor and now running for
the first time as city mayor.9
Time and again, this Court has held that rules of procedure are only tools
designed to facilitate the attainment of justice, such that when rigid
application of the rules tend to frustrate rather than promote substantial
justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just. 10
The spirit embodied in a Constitutional provision must not be attenuated
by a rigid application of procedural rules.
The present case raises a novel issue with respect to an explicit
Constitutional mandate: whether or not petitioner Latasa is eligible to run
as candidate for the position of mayor of the newly-created City of Digos
immediately after he served for three consecutive terms as mayor of the
Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed
freely to choose those who will govern them. Article X, Section 8 of the
Constitution is an exception to this rule, in that it limits the range of
choice of the people.
Section 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which
he was elected.
An examination of the historical background of the subject Constitutional
provision reveals that the members of the Constitutional Commission
were as much concerned with preserving the freedom of choice of the
people as they were with preventing the monopolization of political
power. In fact, they rejected a proposal set forth by Commissioner
Edmundo Garcia that after serving three consecutive terms or nine
years, there should be no further re-election for local and legislative
officials.11 The members, instead, adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred
from running for the same position in the succeeding election following
the expiration of the third consecutive term:
MR. MONSOD: Madam President, I was reflecting on this issue earlier
and I asked to speak because in this draft Constitution, we are
recognizing people’s power. We have said that now there is a new
awareness, a new kind of voter, a new kind of Filipino. And yet at the
same time, we are prescreening candidates among whom they will
choose. We are saying that this 48-member Constitutional Commission
has decreed that those who have served for a period of nine years are
barred from running for the same position.
The argument is that there may be other positions. But there are some
people who are very skilled and good at legislation, and yet are not of a
national stature to be Senators. They may be perfectly honest, perfectly
competent and with integrity. They get voted into office at the age of 25,
which is the age we provide for Congressmen. And at 34 years old we
put them into pasture.
Second, we say that we want to broaden the choices of the people. We
are talking here only of congressional or senatorial seats. We want to
broaden the people’s choice but we are making prejudgment today
because we exclude a certain number of people. We are, in effect,
77
putting an additional qualification for office – that the officials must have
not have served a total of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a
reserve of statesmen, but the future participation of these statesmen is
limited. Their skills may be only in some areas, but we are saying that
they are going to be barred from running for the same position.
Madam President, the ability and capacity of a statesman depend as
well on the day-to-day honing of his skills and competence, in intellectual
combat, in concern and contact with the people, and here we are saying
that he is going to be barred from the same kind of public service.
I do not think it is in our place today to make such a very important and
momentous decision with respect to many of our countrymen in the
future who may have a lot more years ahead of them in the service of
their country.
If we agree that we will make sure that these people do not set up
structures that will perpetuate them, then let us give them this rest period
of three years or whatever it is. Maybe during that time, we would even
agree that their fathers or mothers or relatives of the second degree
should not run. But let us not bar them for life after serving the public for
number of years.12
The framers of the Constitution, by including this exception, wanted to
establish some safeguards against the excessive accumulation of power
as a result of consecutive terms. As Commissioner Blas Ople stated
during the deliberations:
x x x I think we want to prevent future situations where, as a result of
continuous service and frequent re-elections, officials from the President
down to the municipal mayor tend to develop a proprietary interest in
their positions and to accumulate these powers and perquisites that
permit them to stay on indefinitely or to transfer these posts to members
of their families in a subsequent election. x x x 13
An elective local official, therefore, is not barred from running again in
for same local government post, unless two conditions concur: 1.) that
the official concerned has been elected for three consecutive terms to
the same local government post, and 2.) that he has fully served three
consecutive terms.14
In the present case, petitioner states that a city and a municipality have
separate and distinct personalities. Thus they cannot be treated as a
single entity and must be accorded different treatment consistent with
specific provisions of the Local Government Code. He does not deny the
fact that he has already served for three consecutive terms as municipal
mayor. However, he asserts that when Digos was converted from a
municipality to a city, it attained a different juridical personality.
Therefore, when he filed his certificate of candidacy for city mayor, he
cannot be construed as vying for the same local government post.
For a municipality to be converted into a city, the Local Government
Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster
of barangays may be converted into a component city it has an average
annual income, as certified by the Department of Finance, of at least
Twenty million pesos (20,000,000.00) for the last two (2) consecutive
years based on 1991 constant prices, and if it has either of the following
requisites:
(i) a contiguous territory of at least one hundred
(100) square kilometers, as certified by the Land
Management Bureau; or,
(ii) a population of not less than one hundred fifty
thousand (150,000) inhabitants, as certified by the
National Statistics Office.
Provided, That, the creation thereof shall not reduce the land
area, population, and income of the original unit or units at the
time of said creation to less than the minimum requirements
prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be
properly identified by metes and bounds. The requirement on
land are shall not apply where the city proposed to be created
is composed of one (1) or more island. The territory need not
be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income
accruing to the general fund, exclusive of special funds,
transfers, and non-recurring income.15
Substantial differences do exist between a municipality and a city. For
one, there is a material change in the political and economic rights of the
local government unit when it is converted from a municipality to a city
and undoubtedly, these changes affect the people as well. 16 It is
precisely for this reason why Section 10, Article X of the Constitution
mandates that no province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially
altered, without the approval by a majority of the votes cast in a plebiscite
in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or
conversion of a local government unit is done mainly to help assure its
economic viability. Such creation or conversion is based on verified
indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation
of a local government unit or its conversion from one level to another
shall be based on verifiable indicators or viability and projected capacity
to provide services, to wit:
(a) Income. --- It must be sufficient, based on acceptable
standards, to provide for all essential government facilities
and services and special functions commensurate with the
size of its population, as expected of the local government unit
concerned;
(b) Population. --- It shall be determined as the total number
of inhabitants within the territorial jurisdiction of the local
government unit concerned; and
(c) Land Area. --- It must be contiguous, unless it comprises
two (2) or more islands or is separated by a local government
unit independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO), and
the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).17
On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be
converted into a component city to be known as the City of Digos,
hereinafter referred to as the City, which shall comprise the present
territory of the Municipality of Digos, Davao del Sur Province. The
territorial jurisdiction of the City shall be within the present metes and
bounds of the Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials
of the Municipality of Digos shall continue to exercise their powers and
functions until such a time that a new election is held and the duly-
elected officials shall have already qualified and assumed their offices.
x x x.
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.
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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,18 the issue therein was whether a vice-mayor
who became the mayor by operation of law and who served the
remainder of the mayor’s 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
latter’s 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 incumbent’s 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 petitioner’s authority as chief executive over the
inhabitants of Digos.
In Lonzanida v. COMELEC,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,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,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. In Lonzanida,
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.1âwphi1
This Court reiterates that the framers of the Constitution specifically
included an exception to the people’s 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
eighteen consecutive 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,22 he should be deemed the mayoralty candidate with the
highest number of votes. On the contrary, this Court held in Labo 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 candidate’s disqualification so as to bring such
awareness within the realm of notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In such case, the electorate
may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the next higher number of
votes may be deemed elected. 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
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winning candidate’s election a nullity.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.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.25
WHEREFORE, the petition is DISMISSED. No pronouncement as to
costs.
SO ORDERED.
BORJA VS. COMELEC
SEE ABOVE
FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners,
vs.
COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO,
JR., respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition1 for certiorari assails the June 2, 2007 Resolution2 of the
First Division of the Commission on Elections (COMELEC) in SPA No.
07-421, denying the petition for disqualification filed by petitioners
Federico T. Montebon and Eleanor M. Ondoy against respondent
Sesinando F. Potencioso, Jr., as well as the September 28, 2007
Resolution3 of the COMELEC En Banc denying the motion for
reconsideration.
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were
candidates for municipal councilor of the Municipality of Tuburan, Cebu
for the May 14, 2007 Synchronized National and Local Elections. On
April 30, 2007, petitioners and other candidates4 for municipal councilor
filed a petition for disqualification against respondent with the
COMELEC alleging that respondent had been elected and served three
consecutive terms as municipal councilor in 1998-2001, 2001-2004, and
2004-2007. Thus, he is proscribed from running for the same position in
the 2007 elections as it would be his fourth consecutive term.
In his answer, respondent admitted that he had been elected for three
consecutive terms as municipal councilor. However, he claimed that the
service of his second term in 2001-2004 was interrupted on January 12,
2004 when he succeeded as vice mayor of Tuburan due to the
retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not
disqualified from vying for the position of municipal councilor in the 2007
elections.
In the hearing of May 10, 2007, the parties were directed to file their
respective memoranda.
In petitioners’ memorandum, they maintained that respondent’s
assumption of office as vice-mayor in January 2004 should not be
considered an interruption in the service of his second term since it was
a voluntary renunciation of his office as municipal councilor. They
argued that, according to the law, voluntary renunciation of the office for
any length of time shall not be considered an interruption in the continuity
of service for the full term for which the official concerned was elected.
On the other hand, respondent alleged that a local elective official is not
disqualified from running for the fourth consecutive time to the same
office if there was an interruption in one of the previous three terms.
On June 2, 2007, the COMELEC First Division denied the petition for
disqualification ruling that respondent’s assumption of office as vice-
mayor should be considered an interruption in the continuity of his
service. His second term having been involuntarily interrupted,
respondent should thus not be disqualified to seek reelection as
municipal councilor.5
On appeal, the COMELEC En Banc upheld the ruling of the First
Division, as follows:
Respondent’s assumption to the office of the vice-mayor of
Tuburan in January 2004 during his second term as councilor
is not a voluntary renunciation of the latter office. The same
therefore operated as an effective disruption in the full service
of his second term as councilor. Thus, in running for councilor
again in the May 14, 2007 Elections, respondent is deemed to
be running only for a second consecutive term as councilor of
Tuburan, the first consecutive term fully served being his
2004-2007 term.
Petitioner Montebon’s and Ondoy’s June 9, 2007
manifestation and omnibus motion are hereby declared moot
and academic with the instant disposition of their motion for
reconsideration.
WHEREFORE, premises considered, petitioners’ motion for
reconsideration is hereby DENIED for lack of merit.
SO ORDERED.6
Petitioners filed the instant petition for certiorari on the ground that the
COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in ruling that respondent’s assumption of office as
vice-mayor in January 2004 interrupted his 2001-2004 term as municipal
councilor.
The petition lacks merit.
The 1987 Constitution bars and disqualifies local elective officials from
serving more than three consecutive terms in the same post. Section 8,
Article X thereof states:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law shall be
three years and no such officials shall serve for more than
three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected.
Section 43 of the Local Government Code also provides:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three
consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for
the full term for which the elective official concerned was
elected.
In Lonzanida v. Commission on Elections,7 the Court held that the two
conditions for the application of the disqualification must concur: 1) that
the official concerned has been elected for three consecutive terms in
the same local government post; and 2) that he has fully served three
consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court
emphasized that the term limit for elective officials must be taken to refer
to the right to be elected as well as the right to serve in the same elective
position.Thus, for the disqualification to apply, it is not enough that the
official has been elected three consecutive times; he must also have
served three consecutive terms in the same position.10
While it is undisputed that respondent was elected municipal councilor
for three consecutive terms, the issue lies on whether he is deemed to
have fully served his second term in view of his assumption of office as
vice-mayor of Tuburan on January 12, 2004.
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Succession in local government offices is by operation of law. 11 Section
4412 of Republic Act No. 7160, otherwise known as the Local
Government Code, provides that if a permanent vacancy occurs in the
office of the vice mayor, the highest ranking sanggunian member shall
become vice mayor. Thus:
WHEREFORE, the petition is DISMISSED for lack of merit. The June 2,
2007 Resolution of the COMELEC First Division denying the petition for
disqualification and the September 28, 2007 Resolution of the
COMELEC en banc denying the motion for reconsideration,
are AFFIRMED.

SEC. 44. Permanent Vacancies in the Offices of the SO ORDERED.

Governor, Vice Governor, Mayor, and 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. If a permanent vacancy
occurs in the offices of the governor, vice governor, mayor or
vice mayor, the highest ranking sanggunian member or, in
case of his permanent inability, the second highest ranking
sanggunian member, shall become the governor, vice
governor, mayor or vice mayor, as the case may be.
Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to
their ranking as defined herein. x x x

In this case, a permanent vacancy occurred in the office of the vice

mayor due to the retirement of Vice Mayor Mendoza. Respondent, being
the highest ranking municipal councilor, succeeded him in accordance
with law. It is clear therefore that his assumption of office as vice-mayor
can in no way be considered a voluntary renunciation of his office as
municipal councilor.

In Lonzanida v. Commission on Elections, the Court explained the

concept of voluntary renunciation as follows:

The second sentence of the constitutional provision under

scrutiny states, ‘Voluntary renunciation of office for any length
of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected.’
The clear intent of the framers of the constitution to bar any
attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the
people’s choice and grant their elected official full service of a
term is evident in this provision. Voluntary renunciation of a
term does not cancel the renounced term in the computation
of the three term limit; conversely, involuntary severance
from office for any length of time short of the full term
provided by law amounts to an interruption of continuity
of service.13 (Emphasis added)

Thus, respondent’s assumption of office as vice-mayor in January 2004

was an involuntary severance from his office as municipal councilor,
resulting in an interruption in the service of his 2001-2004 term. It cannot
be deemed to have been by reason of voluntary renunciation because it
was by operation of law. We quote with approval the ruling of the
COMELEC that –

The legal successor is not given any option under the law on
whether to accept the vacated post or not. Section 44 of the
Local Government Code makes no exception. Only if the
highest-ranking councilor is permanently unable to succeed to
the post does the law speak of alternate succession. Under
no circumstances can simple refusal of the official concerned
be considered as permanent inability within the contemplation
of law. Essentially therefore, the successor cannot refuse to
assume the office that he is mandated to occupy by virtue of
succession. He can only do so if for some reason he is
permanently unable to succeed and occupy the post vacated.

xxxx

Thus, succession by law to a vacated government office is

characteristically not voluntary since it involves the
performance of a public duty by a government official, the non-
performance of which exposes said official to possible
administrative and criminal charges of dereliction of duty and
neglect in the performance of public functions. It is therefore
more compulsory and obligatory rather than voluntary.14

81