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GR 207264, 25 June 2013 (Dissenting Opinion - Brion)
GR 207264, 25 June 2013 (Dissenting Opinion - Brion)
SUPREME COURT
Manila
EN BANC
G.R. No. 207264
DISSENTING OPINION
BRION, J.:
The petition before us is a petition for certiorari 1 with a prayer for a
temporary restraining order, preliminary injunction and/or status quo ante
order, that seeks to annul: (1) the respondent Commission on Elections
(COMELEC) March 27, 20132 and May 14, 20133 COMELEC Resolutions
cancelling petitioner Regina Ongsiako Reyes' (petitioner or Reyes)
Certificate of Candidacy ( COC) for the position of Representative in the
lone district of Marinduque, and (2) the June 5, 2013 Certificate of
Finality4 declaring the May 14, 2013 Resolution final and executory in SPA
Case No. 13-053(DC).
I. THE CASE AND THE DISSENT IN CONTEXT
I submit this Dissenting Opinion to express my strong reservations to the
majority's outright dismissal of this most unusual case a term I do not use
lightly as shown by the reasons stated below.
I clarify at the outset that the present case is at its inception stage; it is a
newly filed petition that the Court is acting upon for the first time and
seen by the lay observer is that by immediately ruling and avoiding the
jurisdiction of the HRET on the matter of qualification, the majority avoids
a quo warranto petition that, if successful, would render petitioner Reyes
disqualified, leaving the congressional position in Marinduques lone
district vacant.
Significantly, the Dissent is not a lonely one made solely by the
undersigned; he is joined by three (3) other Justices. 6 Seven (7)
Justices7 formed the majority with three (3) Justices inhibiting for personal
reasons,8 with one (1) Justice absent.9
II. SUMMARY OF THE DISSENTS SUPPORTING POSITIONS
That this unusual case at least deserves further proceedings from this
Court other than the OUTRIGHT DISMISSAL the majority ordered, is
supported by the following considerations:
First, the questions raised in the petition are NOT too unsubstantial to
warrant further proceedings.
a. Under Section 6, Rule 64 of the Rules of Court, the Court may
dismiss the petition if it was filed manifestly for delay, or the
questions raised are too unsubstantial to warrant further proceedings.
In the present case, the majority dismissed the petition outright
despite the threshold issue of jurisdiction that Reyes squarely raised.
b. The due process issues Reyes raised with respect to the COMELEC
proceedings cannot be taken lightly, in particular, the COMELECs
failure to accord her the opportunity to question the nature and
authenticity of the evidence submitted by the respondent Joseph Tan
(Tan) as well as controverting evidence the petition cited. In fact, no
less than COMELEC Chairman Sixto Brillantes Jr., echoed this
concern in his Dissenting Opinion from the May 14, 2013 Resolution
of the COMELEC en banc.
rate, Reyes contended that the representations as to her civil status and
date of birth are not material so as to warrant the cancellation of her CoC.
On February 8, 2013, Tan filed a Manifestation with Motion to Admit
Newly Discovered Evidence and Amended List of Exhibits consisting of,
among others, a copy of an article published online on January 8, 2013
entitled "Seeking and Finding the Truth about Regina O. Reyes." This article
provided a database record from the Bureau of Immigration and
Deportation (BID) indicating that Reyes is an American citizen and a holder
of a US passport that she has been using since 2005. Tan also submitted a
photocopy of a Certification of Travel Records from the BID, which showed
that Reyes holds a US passport No. 306278853. Based on these pieces of
evidence and the fact that Reyes failed to take an Oath of Allegiance and
execute an Affidavit of Renunciation of her American citizenship pursuant
to Republic Act No. 9225 (RA 9225), Tan argued that Reyes was ineligible
to run for the position of Representative and thus, her CoC should be
cancelled.
C. The COMELEC First Division Ruling
On March 27, 2013, the COMELEC First Division issued a Resolution
granting the petition and cancelling Reyes CoC. On the alleged
misrepresentations in Reyes CoC with respect to her civil status and birth
date, the COMELEC First Division held that these are not material
representations that could affect her qualifications or eligibility, thus
cancellation of CoC on these grounds is not warranted.
The COMELEC First Division, however, found that Reyes committed false
material representation with respect to her citizenship and residency. Based
on the newly discovered evidence submitted by Tan, the COMELEC First
Division found that Reyes was a holder of a US passport, which she
continued to use until June 30, 2012; she also failed to establish that she had
applied for repatriation under RA 9225 by taking the required Oath of
Allegiance and executing an Affidavit of Renunciation of her American
COMELEC First Division on the ground that the formers motion was a
mere rehash of the arguments she raised against the First Division ruling.
D-a. Commissioner Lims Concurring Opinion
Commissioner Lim concurred in the result and held that Reyes failed to
comply with twin requirements of RA 9225; she belatedly filed her
Affidavit of Renunciation of Foreign Citizenship but failed to submit an
Oath of Allegiance. She also failed to prove that she complied with the oneyear residency requirement for lack of evidence of any overt or positive act
that she had established and maintained her residency in Boac,
Marinduque.
D-b. Chairman Brillantes Dissenting Opinion
Chairman Brillantes dissented from the majority and held that Tan failed to
offer substantial evidence to prove that Reyes lost her Filipino citizenship.
He noted that the internet article by a certain Eli Obligacion showing that
Reyes used a US passport on June 30, 2012 is hearsay while the purported
copy of the BID certification is merely a photocopy and not even a certified
true copy of the original, thus similarly inadmissible as evidence. Chairman
Brillantes also emphasized that a petition to deny due course under Section
78 of the Omnibus Election Code (OEC) cannot be a pre-election substitute
for a quo warranto proceeding. Under prevailing laws, there remains to be
no pre-election legal remedy to question the eligibility or lack of
qualification of a candidate. Chairman Brillantes was of the view that a
petition to deny due course tackles exclusively the issue of deliberate
misrepresentation over a qualification, and not the lack of qualification per
se which is the proper subject of a quo warranto proceeding.
Finally, he opined that the issues pertaining to Reyes residence and
citizenship requires exhaustive presentation and examination of evidence
that are best addressed in a full blown quo warranto proceeding rather
than the summary proceedings in the present case.
hear the parties and rule based on our appreciation of the merits of their
positions in light of what the law and established jurisprudence require.
a. The Due Process Component
The determination of the merits of the petitioners claim point us, at the
very least, to the need to consider whether evidence attributed to a person
who is not before the Court and whose statement cannot be confirmed for
the genuineness, accuracy and truth of the basic fact sought to be
established in the case, should be taken as "truth." Even casting technical
rules of evidence aside, common sense and the minimum sense of fairness
dictate that an article in the internet cannot simply be taken to be evidence
of the truth of what it says, nor can photocopies of documents not shown to
be genuine be taken as proof of the "truth." To accept these materials as
statements of "truth" is to be partisan and to deny the petitioner her right to
both procedural and substantive due process. Again, at the very least,
further inquiry should have been made before there was the judgment.
Some, to be sure, may label the denial of further inquiry to lack of
prudence; others, not so charitably minded, may however refer to this as
partisanship.
b. The Jurisdictional Component.
The jurisdictional component of the petition is interesting because it
involved matters that were not covered by the assailed COMELEC rulings
for the simple reason that they were intervening events that transpired
outside (although related with) the assailed rulings. In fact, they involved
questions of fact and law separate from those of the assailed COMELEC
rulings. Yet, the majority, in its rush to judgment, lumped them together
with the assailed rulings under the dismissive phrase "did not commit any
grave abuse of discretion" in the dispositive portion of its ruling. Such was
the haste the majority exhibited in the desire to pronounce swift and
dismissive judgment. I can only surmise that the majority might have
The Court speaking through no less than Associate Justice Roberto A. Abad
in the recent case of Jalosjos, Jr. v Commission on Elections 17 held that the
settled rule is that "the proclamation of a congressional candidate following
the election divests COMELEC of jurisdiction over disputes relating to the
election, returns, and qualifications of the proclaimed Representative in
favor of the HRET"18
Based on these considerations, it appears clear that any ruling from this
Court as the majority ruled that the COMELEC retains jurisdiction over
disputes relating to the election, returns and qualifications of the
proclaimed representative who has been proclaimed but not yet assumed
office is a major retrogressive jurisprudential development, in fact, a
complete turnaround from the Courts prevailing jurisprudence on the
matter; such rule if it becomes established can very well emasculate the
HRET.
Thus, the Court should now fully hear this matter, instead of dismissively
ruling on a new petition where the respondent side has not been fully
heard.
The ponencias holding on the COMELECs jurisdiction vis--vis the HRET
is inconsistent with the HRET Rules
The view that the proclamation of the winning candidate is the operative
fact that triggers the jurisdiction of the HRET is also supported by the
HRET Rules. They state:
RULE 14. Jurisdiction. The Tribunal is the sole judge of all contests
relating to the election, returns, and qualifications of the Members of the
House of Representatives.
RULE 15. How Initiated. An election contest is initiated by the filing of a
verified petition of protest or a verified petition for quo warranto against a
Member of the House of Representatives. An election protest shall not
include a petition for quo warranto. Neither shall a petition for quo
warranto include an election protest.
RULE 16. Election Protest. A verified petition contesting the election or
returns of any Member of the House of Representatives shall be filed by
any candidate who has duly filed a certificate of candidacy and has been
voted for the same office, within fifteen (15) days after the proclamation of
the winner. The party filing the protest shall be designated as the protestant
while the adverse party shall be known as the protestee. x x x
RULE 17. Quo Warranto. A verified petition for quo warranto contesting
the election of a Member of the House of Representatives on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall be filed
by any registered voter of the district concerned within fifteen (15) days
from the date of the proclamation of the winner. The party filing the
petition shall be designated as the petitioner while the adverse party shall
be known as the respondent.
Based on the above Rules, it appears clear that as far as the HRET is
concerned, the proclamation of the winner in the congressional elections
serves as the reckoning point as well as the trigger that brings any contests
relating to his or her election, return and qualifications within its sole and
exclusive jurisdiction.
In the context of the present case, by holding that the COMELEC retained
jurisdiction (because Reyes, although a proclaimed winner, has not yet
assumed office), the majority effectively emasculates the HRET of its
jurisdiction as it allows the filing of an election protest or a petition for quo
warranto only after the assumption to office by the candidate (i.e, on June
30 in the usual case). To illustrate using the dates of the present case, any
election protest or a petition for quo warranto filed after June 30 or more
than fifteen (15) days from Reyes proclamation on May 18, 2013, shall
certainly be dismissed outright by the HRET for having been filed out of
time under the HRET rules.
Did the COMELEC gravely abuse its discretion when it declared its May 14,
2013 Resolution final and executory?
By the petitioners theory, the COMELEC en bancs May 14, 2013
Resolution (cancelling Reyes CoC) did not attain finality because Reyes
proclamation on May 18, 2013 divested the COMELEC of its jurisdiction
over matters pending before it relating to Reyes eligibility. Two material
records are critical on this point. First, the fact of proclamation on May 18,
2013 which came one (1) day ahead of the May 19, 2013 deadline for the
finality of the May 14, 2013 Resolution pursuant to the COMELEC Rules of
Procedure. The second is the COMELEC order of June 5, 2013 which
declared its resolution of May 14, 2013 final and executory.
How these instruments will co-exist and be given weight in relation with
one another is a matter that, at this point and in the absence of research,
deliberation, debate and discussion may not be easily be made. The Court,
to be sure, would want to hear the HRET, the COMELEC and the Office of
the Solicitor General, on this point. Of course, this hearing and debate will
not take place under the hasty dismissive action the majority made.
Did the COMELEC gravely abuse its discretion in the appreciation and
evaluation of the evidence leading it to erroneously conclude that Reyes is
not a natural born Filipino citizen and that she had abandoned and lost her
domicile of origin when she became a naturalized American citizen
As a general rule, the Court does not ordinarily review the COMELECs
appreciation and evaluation of evidence. However, exceptions to this rule
have been established and consistently recognized, among others, when the
COMELEC's appreciation and evaluation of evidence are so grossly
unreasonable as to turn into an error of jurisdiction. In these instances, the
Court is compelled by its bounden constitutional duty to intervene and
correct the COMELEC's error.19
It is also basic in the law of evidence that one who alleges a fact has the
burden of proving it. In administrative cases, the quantum of proof
required is substantial evidence.20 In the present case, the majority
obviously believed, together with the COMELEC, that Tan did overcome
this burden and that his documentary evidence he submitted established
that Reyes is not a Filipino citizen. A major clash between the parties exists,
of course, on this point as Reyes, as expressed in her petition, is of the
completely opposite view. Even a quick look at Tans evidence, however,
indicates that Reyes view is not without its merits and should not simply
be dismissively set aside.
First, Tan submitted an article published online (blog article) written by one
Eli J. Obligacion (Obligacion) entitled "Seeking and Finding the Truth
About Regina O. Reyes." This printed blog article stated that the author had
obtained records from the BID stating that Reyes is an American citizen;
that she is the holder of a US passport and that she has been using the same
since 2005.
How the law on evidence would characterize Obligacion's blog article or,
for that matter, any similar newspaper article, is not hard for a law student
answering the Bar exam to tackle: the article is double hearsay or hearsay
evidence that is twice removed from being admissible as it was offered to
prove its contents (that Reyes is an American citizen) without any other
competent and credible evidence to corroborate them. Separately of course
from this consideration of admissibility is the question of probative value.
On top of these underlying considerations is the direct and frontal
question: did the COMELEC gravely abuse its discretion when it relied on
this piece of evidence to conclude that Reyes is not a Filipino citizen?
Second, Tan also submitted a photocopy of a "certification" issued by one
Simeon L. Sanchez of the BID showing the travel records of Reyes from
February 15, 2000 to June 30, 2012 and that she is a holder of US Passport
No. 306278853. This photocopy also indicates in some entries that Reyes is
an American while other entries denote that she is Filipino. The same
D.
BRION
Footnotes
1
Id. at 40-51.
Id. at 52-55.
Id. at 163-165.
10
11
12
13
14
15
Id., "We do not agree. The Court has invariably held that once a
winning candidate has been proclaimed, taken his oath, and assumed
office as a Member of the House of Representatives, the COMELEC's
jurisdiction over election contests relating to his election, returns, and
qualifications ends, and the HRET's own jurisdiction begins. It
follows then that the proclamation of a winning candidate divests the
COMELEC of its jurisdiction over matters pending before it at the
time of the proclamation. The party questioning his qualification
should now present his case in a proper proceeding before the HRET,
the constitutionally mandated tribunal to hear and decide a case
involving a Member of the House of Representatives with respect to
the latter's election, returns and qualifications. The use of the word
"sole" in Section 17, Article VI of the Constitution and in Section 250
of the OEC underscores the exclusivity of the Electoral Tribunals'
jurisdiction over election contests relating to its members."
xxxx
"Accordingly, after the proclamation of the winning candidate
in the congressional elections, the remedy of those who may
assail
ones
eligibility/ineligibility/qualification/disqualification is to file
before the HRET a petition for an election protest, or a petition
for quo warranto, within the period provided by the HRET
Rules. In Pangilinan v. Commission on Elections we ruled that
where the candidate has already been proclaimed winner in the
congressional elections, the remedy of petitioner is to file an
electoral protest with the Electoral Tribunal of the House of
Representatives."
17
18
20
Rollo, p. 48.
23
24
25