Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA
CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.

Torcuato L. Galon for plaintiffs-appellants.

Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J.:

Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge
Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for support and
damages, and another order denying amendment of the same pleading.

The events in the court of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her
complaint it was averred that the parties were neighbors in Dapitan City, and had close and
confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse
with plaintiff several times by force and intimidation, and without her consent; that as a result she
became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop
studying. Hence, she claimed support at P120.00 per month, damages and attorney's fees.

Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did
not allege that the child had been born; and after hearing arguments, the trial judge sustained
defendant's motion and dismissed the complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse,
plaintiff had later given birth to a baby girl; but the court, sustaining defendant's objection, ruled that
no amendment was allowable, since the original complaint averred no cause of action. Wherefore,
the plaintiff appealed directly to this Court.

We find the appealed orders of the court below to be untenable. A conceived child, although as yet
unborn, is given by law a provisional personality of its own for all purposes favorable to it, as
explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a
right to support from its progenitors, particularly of the defendant-appellee (whose paternity is
deemed admitted for the purpose of the motion to dismiss), even if the said child is only "en ventre
de sa mere;" just as a conceived child, even if as yet unborn, may receive donations as prescribed
by Article 742 of the same Code, and its being ignored by the parent in his testament may result in
preterition of a forced heir that annuls the institution of the testamentary heir, even if such child
should be born after the death of the testator Article 854, Civil Code).

ART. 742. Donations made to conceived and unborn children may be accepted by
those persons who would legally represent them if they were already born.

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of 'representation.

It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is
an obligation of parents and illegitimate children "does not contemplate support to children as yet
unborn," violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text
of Article 291. It is true that Article 40 prescribing that "the conceived child shall be considered born
for all purposes that are favorable to it" adds further "provided it be born later with the conditions
specified in the following article" (i.e., that the foetus be alive at the time it is completely delivered
from the mother's womb). This proviso, however, is not a condition precedent to the right of the
conceived child; for if it were, the first part of Article 40 would become entirely useless and
ineffective. Manresa, in his Commentaries (5th Ed.) to the corresponding Article 29 of the Spanish
Civil Code, clearly points this out:

Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el

sentido tecnico que la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30, no
determina el nacimiento de aquellos derechos (que ya existian de antemano), sino
que se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op. cit., page
271)

A second reason for reversing the orders appealed from is that for a married man to force a woman
not his wife to yield to his lust (as averred in the original complaint in this case) constitutes a clear
violation of the rights of his victim that entitles her to claim compensation for the damage caused.
Says Article 21 of the Civil Code of the Philippines:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

The rule of Article 21 is supported by Article 2219 of the same Code:

ART 2219. Moral damages may be recovered in the following and analogous cases:

(3) Seduction, abduction, rape or other lascivious acts:

xxx xxx xxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....
Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause
of action for damages under the terms of the complaint; and the order dismissing it for failure to state
a cause of action was doubly in error.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to
the court of origin for further proceedings conformable to this decision. Costs against appellee Felix
Icao. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo,
the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the
complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and
against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees
and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the
award by a majority vote of three justices as against two, who rendered a separate dissenting
opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband
before they were legally married. Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted by the defendant. After her
marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1953. Less than two years later, she again
 became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine
currency. The plaintiff was at this time in the province of Cagayan, campaigning for his
election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06
upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This
we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a
person, does not cover the case of an unborn foetus that is not endowed with personality. Under the
system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en
consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to
the one injured, it is easy to see that if no action for such damages could be instituted on behalf of
the unborn child on account of the injuries it received, no such right of action could derivatively
accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn
child, the same was extinguished by its pre-natal death, since no transmission to anyone can take
place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to
act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Code, because that same article expressly limits such
provisional personality by imposing the condition that the child should be subsequently born alive:
"provided it be born later with the condition specified in the following article". In the present case,
there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery
can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10
ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages
must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of
the deceased, his right to life and physical integrity. Because the parents can not expect either help,
support or services from an unborn child, they would normally be limited to moral damages for the
illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of
distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ.
Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any
basis for an award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned
with the frustration of his parental hopes and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the
second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the
causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the
third abortion, the appellee does not seem to have taken interest in the administrative and criminal
cases against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's
fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the
abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it that
the medical profession was purged of an unworthy member rather than turn his wife's
indiscretion to personal profit, and with that idea in mind to press either the administrative or
the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action
for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her husband does not excuse it. But
the immorality or illegality of the act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio Geluz
as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner,

vs.
ANTONIO C. NAVARRO, respondent.

Agrava, Peralta & Agrava for petitioner.

Leonardo Abola for respondent.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary
settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro,
Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo
handed down a single decision which was appealed to the Court of Appeals, whose decision,
modifying that the Court of First Instance, in turn was elevated to the Supreme Court for review.
The main question represented in the first two courts related to the sequence of the deaths of
Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians
by Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to
have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd.
Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of
Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and
Joaquin Navarro, Jr., the latter was declared to have survived his mother.

It is this modification of the lower court's finding which is now being contested by the petitioner. The
importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or
vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the
present petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of
the deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first
marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals
as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin
Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and
Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in
the ground floor of the building known as the German Club, at the corner of San Marcelino and San
Luis Streets of this City. During their stay, the building was packed with refugees, shells were
exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at
the people inside the building, especially those who were trying to escape. The three daughters were
hit and fell of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to
abandon the premises to seek a safer heaven. They could not convince Angela Joaquin who refused
to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife,
Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning
edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and
immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the
bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside,
presumably including Angela Joaquin.

"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid
shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to
leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in
San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing
Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about
67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her
brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and
25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who
miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as between
the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is
uncertain and insufficient" and the statutory presumption must be applied. The appellate Court's
reasoning for its conclusion is thus stated:
"It does not require argument to show that survivorship cannot be established by proof of the death
of only one of the parties; but that there must be adequate proof that one was alive when the other
had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect
that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company
of his father and the witness, and that the burning edified entirely collapsed minutes after the
shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we
may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the
instant his son turned his back to her, to dash out to the Club, until he died. All we can glean from
the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German
Club; but she could have died almost immediately after, from a variety of causes. She might have
been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice,
overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for
certain. No evidence is available on the point. All we can decide is that no one saw her alive after
her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone
cannot support a finding that she died latter than her son, and we are thus compelled to fall back
upon the statutory presumption. In deed, it could be said that the purpose of the presumption of
survivorship would be precisely to afford a solution to uncertainties like these. Hence the son
Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who
was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether
she and her deceased children perished in the same calamity. There being no evidence to the
contrary, the only guide is the occasion of the deaths, which is identical for all of them; that battle for
the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same
battle are to be regarded as perishing in the same calamity, could not overlooked that a variety of
cause of death can ( and usually do) operate in the source of combats. During the same battle,
some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards
episodic details, and treats the battle as an overall cause of death in applying the presumption of
survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family
met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the
mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no
doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now
section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889,
now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on
the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela
Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time.

The point is not of much if any relevancy and will be left open for the consideration when obsolute
necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions
is applicable for the reasons to be presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and it
is not (1) shown who died first, and there are no (2) particular circumstances from when it
can be inferred, the survivorship is presumed from the probabilities resulting from the
strength and ages of the sexes, according to the following rules:
 xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who
would inherent one from the other, the persons who alleges the prior death of either must
prove the allegation; in the absence of proof the presumption shall be that they died at the
same time, and no transmission of rights from one to the other shall take place.

Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are
not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, "the
situation which it present is one in which the facts are not only unknown but unknowable. By
hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is assumed that no
evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the
law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence,
1940 ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect
to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec.
1936 of the California Code of Civil Procedure," the Supreme Court of California said:

When the statue speaks of "particular circumstances from which it can be inferred" that one
died before the other it means that there are circumstances from which the fact of death by
one before the other may be inferred as a relation conclusion from the facts proven. The
statue does not mean circumstances which would shown, or which would tend to show,
probably that one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96
Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship
contrary to the statutory presumption, the circumstances by which it is sought to prove the
survivorship must be such as are competent and sufficient when tested by the general rules
of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise,
speculation, or conjecture. As was said in Grand Lodge vs. Miller, supra, "if the matter is left
to probably, then the statue of the presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision
that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or
inferential. Where there are facts, known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship
between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and
sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to
detail the testimony, which was described by the trial court as "disinterested and trustworthy" and by
the Court of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters away
from the building but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the
shooting of Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could
not say exactly, Occasions like that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible,
but not probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes
after we have dashed out, the German Club, which was burning, collapsed over them,
including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact
that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not
give the same positive evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in
the sense that I did not see her actually die, but when the building collapsed over her I saw
and I am positive and I did not see her come out of that building so I presumed she died
there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr.
Joaquin Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to the
Club and they were shooting people outside, so we thought of running away rather than be
roasted.

xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls,
Pilar, Concepcion, and Natividad, were already wounded? — A. to my knowledge, yes.

Q. They were wounded? — A. Yes, sir.

Q. Were they lying on the ground or not? — A. On the ground near the entrance, because
most of the people who were shot by the Japanese were those who were trying to escape,
and as far as I can remember they were among those killed.
 xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left
the place? — A. That is what I think, because those Japanese soldiers were shooting the
people inside especially those trying to escape.

xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A — . There were
many people shot because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain
that? — A. They were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of
survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption
out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and
reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted that
this possibility is entirely speculative and must yield to the more rational deduction from proven facts
that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in
front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated
that distance in five seconds or less, and so died within that interval from the time he dashed out of
the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the
clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard
to have her come along. She could have perished within those five or fewer seconds, as stated, but
the probabilities that she did seem very remote. True, people in the building were also killed but
these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by
Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape.
She even made frantic efforts to dissuade her husband and son from leaving the place and exposing
themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same
time, of a condition of relative safety in the clubhouse at the moment her husband, son, and
daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of
death from staying were not so imminent. And it lends credence to Mr. Lopez' statement that the
collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the
head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of
Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was
"minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that
Mrs. Angela Joaquin was sill alive when her son expired

The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs.
Navarro could have been killed. All these are speculative , and the probabilities, in the light of the
known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her
refusal to follow the only remaining living members of her family, she could not have kept away form
protective walls. Besides, the building had been set on fire trap the refugees inside, and there was
no necessity for the Japanese to was their ammunition except upon those who tried to leave the
premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building
was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not
cause instantaneous death; certainly not within the brief space of five seconds between her son's
departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123
does not require that the inference necessary to exclude the presumption therein provided be
certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are
required to be certain as tested by the rules of evidence. In speaking of inference the rule can not
mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a finding of
fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199
N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is
enough that "the circumstances by which it is sought to prove the survivorship must be such as are
competent and sufficient when tested by the general rules of evidence in civil cases." (In re
Wallace's Estate, supra.) "Juries must often reason," says one author, "according
to probabilities, drawing an inference that the main fact in issue existed from collateral facts not
directly proving, but strongly tending to prove, its existence. The vital question in such cases is the
cogency of the proof afforded by the secondary facts. How likely, according to experience, is the
existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The
same author tells us of a case where "a jury was justified in drawing the inference that the person
who was caught firing a shot at an animal trespassing on his land was the person who fired a shot
about an hour before at the same animal also trespassing." That conclusion was not airtight, but
rational. In fact, the circumstances in the illustration leave greater room for another possibility than
do the facts of the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely
on surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite
theory — that the mother outlived her son — is deduced from established facts which, weighed by
common experience, engender the inference as a very strong probability. Gauged by the doctrine of
preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can
not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous,
where in an action on the game laws it was suggested that the gun with which the defendant fired
was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore
on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which
has been discussed, involves findings of fact which can not be disturbed. The point is not, in our
judgment, well considered. The particular circumstances from which the parties and the Court of
Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness
or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court
has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed.
856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible
witness does not cease to be such because he is not impeached or contradicted. But when the
evidence is purely documentary, the authenticity of which is not questioned and the only issue is the
construction to be placed thereon, or where a case is submitted upon an agreement of facts, or
where all the facts are stated in the judgment and the issue is the correctness of the conclusions
drawn therefrom, the question is one of law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked
is a question of law.

The prohibition against intermeddling with decisions on questions of evidence refers to decisions
supported by substantial evidence. By substantial evidence is meant real evidence or at least
evidence about which reasonable men may disagree. Findings grounded entirely on speculations,
surmises, or conjectures come within the exception to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the
decedents' estates should be made in accordance with the decision of the trial court. This result
precludes the necessity of passing upon the question of "reserva troncal" which was put forward on
the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 104269 November 11, 1993

DEPARTMENT OF AGRICULTURE, petitioner,

vs.
THE NATIONAL LABOR RELATIONS COMMISSION, et al., respondents.

Roy Lago Salcedo for private respondents.

VITUG, J.:

For consideration are the incidents that flow from the familiar doctrine of non-suability of the state.

In this petition for certiorari, the Department of Agriculture seeks to nullify the Resolution, 1 dated 27
November 1991, of the National Labor Relations Commission (NLRC), Fifth Division, Cagayan de
Oro City, denying the petition for injunction, prohibition and mandamus that prays to enjoin
permanently the NLRC's Regional Arbitration Branch X and Cagayan de Oro City Sheriff from
enforcing the decision 2 of 31 May 1991 of the Executive Labor Arbiter and from attaching and
executing on petitioner's property.

The Department of Agriculture (herein petitioner) and Sultan Security Agency entered into a
contract3 on 01 April 1989 for security services to be provided by the latter to the said governmental
entity. Save for the increase in the monthly rate of the guards, the same terms and conditions were
also made to apply to another contract, dated 01 May 1990, between the same parties. Pursuant to
their arrangements, guards were deployed by Sultan Agency in the various premises of the
petitioner.

On 13 September 1990, several guards of the Sultan Security Agency filed a complaint for
underpayment of wages, non-payment of 13th month pay, uniform allowances, night shift differential
pay, holiday pay and overtime pay, as well as for damages,4 before the Regional Arbitration Branch
X of Cagayan de Oro City, docketed as NLRC Case No. 10-09-00455-90 (or 10-10-00519-90, its
original docket number), against the Department of Agriculture and Sultan Security Agency.

The Executive Labor Arbiter rendered a decision on 31 May finding herein petitioner
and jointly and severally liable with Sultan Security Agency for the payment of money claims,
aggregating P266,483.91, of the complainant security guards. The petitioner and Sultan Security
Agency did not appeal the decision of the Labor Arbiter. Thus, the decision became final and
executory.

On 18 July 1991, the Labor Arbiter issued a writ of execution. 5 commanding the City Sheriff to
enforce and execute the judgment against the property of the two respondents. Forthwith, or on 19
July 1991, the City Sheriff levied on execution the motor vehicles of the petitioner, i.e. one (1) unit
Toyota Hi-Ace, one (1) unit Toyota Mini Cruiser, and one (1) unit Toyota Crown.6 These units were
put under the custody of Zacharias Roa, the property custodian of the petitioner, pending their sale
at public auction or the final settlement of the case, whichever would come first.

A petition for injunction, prohibition and mandamus, with prayer for preliminary writ of injunction was
filed by the petitioner with the National Labor Relations Commission (NLRC), Cagayan de Oro,
alleging, inter alia, that the writ issued was effected without the Labor Arbiter having duly acquired
jurisdiction over the petitioner, and that, therefore, the decision of the Labor Arbiter was null and void
and all actions pursuant thereto should be deemed equally invalid and of no legal, effect. The
petitioner also pointed out that the attachment or seizure of its property would hamper and
jeopardize petitioner's governmental functions to the prejudice of the public good.

On 27 November 1991, the NLRC promulgated its assailed resolution; viz:

WHEREFORE, premises considered, the following orders are issued:

1. The enforcement and execution of the judgments against petitioner in NLRC

RABX Cases Nos. 10-10-00455-90; 10-10-0481-90 and 10-10-00519-90 are
temporarily suspended for a period of two (2) months, more or less, but not
extending beyond the last quarter of calendar year 1991 to enable petitioner to
source and raise funds to satisfy the judgment awards against it;

2. Meantime, petitioner is ordered and directed to source for funds within the period
above-stated and to deposit the sums of money equivalent to the aggregate amount.
it has been adjudged to pay jointly and severally with respondent Sultan Security
Agency with the Regional Arbitration Branch X, Cagayan de Oro City within the same
period for proper dispositions;

3. In order to ensure compliance with this order, petitioner is likewise directed to put
up and post sufficient surety and supersedeas bond equivalent to at least to fifty
(50%) percent of the total monetary award issued by a reputable bonding company
duly accredited by the Supreme Court or by the Regional Trial Court of Misamis
Oriental to answer for the satisfaction of the money claims in case of failure or default
on the part of petitioner to satisfy the money claims;

4. The City Sheriff is ordered to immediately release the properties of petitioner

levied on execution within ten (10) days from notice of the posting of sufficient surety
or supersedeas bond as specified above. In the meanwhile, petitioner is assessed to
pay the costs and/or expenses incurred by the City Sheriff, if any, in connection with
the execution of the judgments in the above-stated cases upon presentation of the
 appropriate claims or vouchers and receipts by the city Sheriff, subject to the
conditions specified in the NLRC Sheriff, subject to the conditions specified in the
NLRC Manual of Instructions for Sheriffs;

5. The right of any of the judgment debtors to claim reimbursement against each
other for any payments made in connection with the satisfaction of the judgments
herein is hereby recognized pursuant to the ruling in the Eagle Security case,
(supra). In case of dispute between the judgment debtors, the Executive Labor
Arbiter of the Branch of origin may upon proper petition by any of the parties conduct
arbitration proceedings for the purpose and thereby render his decision after due
notice and hearings;

7. Finally, the petition for injunction is Dismissed for lack of basis. The writ of
preliminary injunction previously issued is Lifted and Set Aside and in lieu thereof,
a Temporary Stay of Execution is issued for a period of two (2) months but not
extending beyond the last quarter of calendar year 1991, conditioned upon the
posting of a surety or supersedeas bond by petitioner within ten (10) days from
notice pursuant to paragraph 3 of this disposition. The motion to admit the complaint
in intervention is Denied for lack of merit while the motion to dismiss the petition filed
by Duty Sheriff is Noted

SO ORDERED.

In this petition for certiorari, the petitioner charges the NLRC with grave abuse of discretion for
refusing to quash the writ of execution. The petitioner faults the NLRC for assuming jurisdiction over
a money claim against the Department, which, it claims, falls under the exclusive jurisdiction of the
Commission on Audit. More importantly, the petitioner asserts, the NLRC has disregarded the
cardinal rule on the non-suability of the State.

The private respondents, on the other hand, argue that the petitioner has impliedly waived its
immunity from suit by concluding a service contract with Sultan Security Agency.

The basic postulate enshrined in the constitution that "(t)he State may not be sued without its
consent," 7 reflects nothing less than a recognition of the sovereign character of the State and an
express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. 8 It is
based on the very essence of sovereignty. As has been aptly observed, by Justice Holmes, a
sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the authority that makes the
law on which the right depends. 9 True, the doctrine, not too infrequently, is derisively called "the
royal prerogative of dishonesty" because it grants the state the prerogative to defeat any legitimate
claim against it by simply invoking its non-suability. 10 We have had occasion, to explain in its
defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored,
for the loss of governmental efficiency and the obstacle to the performance of its multifarious
functions would be far greater in severity than the inconvenience that may be caused private parties,
if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be
accordingly restricted. 11

The rule, in any case, is not really absolute for it does not say that the state may not be sued under
any circumstances. On the contrary, as correctly phrased, the doctrine only conveys, "the state may
not be sued without its consent;" its clear import then is that the State may at times be sued. 12 The
States' consent may be given expressly or impliedly. Express consent may be made through a
general law13 or a special law. 14 In this jurisdiction, the general law waiving the immunity of the state
from suit is found in Act No. 3083, where the Philippine government "consents and submits to be
sued upon any money claims involving liability arising from contract, express or implied, which could
serve as a basis of civil action between private parties." 15 Implied consent, on the other hand, is
conceded when the State itself commences litigation, thus opening itself to a counterclaim16 or when
it enters into a contract. 17 In this situation, the government is deemed to have descended to the level
of the other contracting party and to have divested itself of its sovereign immunity. This rule, relied
upon by the NLRC and the private respondents, is not, however, without qualification. Not all
contracts entered into by the government operate as a waiver of its non-suability; distinction must
still be made between one which is executed in the exercise of its sovereign function and another
which is done in its proprietary capacity. 18

In the Unites States of America vs. Ruiz, 19 where the questioned transaction dealt with
improvements on the wharves in the naval installation at Subic Bay, we held:

The traditional rule of immunity exempts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of
the principles of independence and equality of States. However, the rules of
International Law are not petrified; they are constantly developing and evolving. And
because the activities of states have multiplied, it has been necessary to distinguish
them — between sovereign and governmental acts ( jure imperii) and private,
commercial and proprietary act ( jure gestionisis). The result is that State immunity
now extends only to acts jure imperii. The restrictive application of State immunity is
now the rule in the United States, the United Kingdom and other states in Western
Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a state may be said to have
descended to the level of an individual and can this be deemed to have actually
given its consent to be sued only when it enters into business contracts. It does not
apply where the contracts relates to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for not dedicated to commercial
or business purposes.

In the instant case, the Department of Agriculture has not pretended to have assumed a capacity
apart from its being a governmental entity when it entered into the questioned contract; nor that it
could have, in fact, performed any act proprietary in character.

But, be that as it may, the claims of private respondents, i.e. for underpayment of wages, holiday
pay, overtime pay and similar other items, arising from the Contract for Service, clearly constitute
money claims. Act No. 3083, aforecited, gives the consent of the State to be "sued upon any
moneyed claim involving liability arising from contract, express or implied, . . . Pursuant, however, to
Commonwealth Act ("C.A.") No. 327, as amended by Presidential Decree ("P.D.") No. 1145, the
money claim first be brought to the Commission on Audit. Thus, in Carabao, Inc., vs. Agricultural
Productivity Commission, 20 we ruled:

(C)laimants have to prosecute their money claims against the Government under
Commonwealth Act 327, stating that Act 3083 stands now merely as the general law
 waiving the State's immunity from suit, subject to the general limitation expressed in
Section 7 thereof that "no execution shall issue upon any judgment rendered by any
Court against the Government of the (Philippines), and that the conditions provided
in Commonwealth Act 327 for filing money claims against the Government must be
strictly observed."

We fail to see any substantial conflict or inconsistency between the provisions of C.A. No. 327 and
the Labor Code with respect to money claims against the State. The Labor code, in relation to Act
No. 3083, provides the legal basis for the State liability but the prosecution, enforcement or
satisfaction thereof must still be pursued in accordance with the rules and procedures laid down in
C.A. No. 327, as amended by P.D. 1445.

When the state gives its consent to be sued, it does thereby necessarily consent to unrestrained
execution against it. tersely put, when the State waives its immunity, all it does, in effect, is to give
the other party an opportunity to prove, if it can, that the State has a liability. 21 In Republic vs.
Villasor 22 this Court, in nullifying the issuance of an alias writ of execution directed against the funds
of the Armed Forces of the Philippines to satisfy a final and executory judgment, has explained, thus
—

The universal rule that where the State gives its consent to be sued by private parties
either by general or special law, it may limit the claimant's action "only up to the
completion of proceedings anterior to the stage of execution" and that the power of
the Courts ends when the judgment is rendered, since government funds and
properties may not be seized under writs or execution or garnishment to satisfy such
judgments, is based on obvious considerations of public policy. Disbursements of
public funds must be covered by the correspondent appropriation as required by law.
The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law.23

WHEREFORE, the petition is GRANTED. The resolution, dated 27 November 1991, is hereby
REVERSED and SET ASIDE. The writ of execution directed against the property of the Department
of Agriculture is nullified, and the public respondents are hereby enjoined permanently from doing,
issuing and implementing any and all writs of execution issued pursuant to the decision rendered by
the Labor Arbiter against said petitioner.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.

# Footnotes

1 Annex "A", Rollo, 23-52.

2 Annex "C", Ibid., 57-68.

3 Rollo, 59.

4 Ibid., 57.
5 Annex "D", Petition, Rollo, 69.

6 Annex "E", Ibid., ibid., p. 70.

7 Article XVI, Section 3 of the Constitution.

8 Isagani Cruz, Philippine Political Law, 1991, p. 29.

9 Kawananakoa vs. Polyblank, 205 U.S. 353, 51 L. ed. 834.

10 U.S.A. vs. Guinto, 182 SCRA 644,654 (1990).

11 Providence Washington Ins. Co. vs. Republic, 29 SCRA 598

12 Ibid.

13 i.e. Commonwealth Act No. 327, as amended by Presidential Decree No. 1445
(Sections 49-50), which requires that all money claims against the government must
first be filed with the Commission on Audit which must act upon it within sixty-days.
Rejection of the claim will authorize the claimant to elevate the matter to the
Supreme Court on certiorari and, in effect, sue the State thereby.

14 Merritt vs. Government of the Philippines, 34 Phil. 311.

15 See United States vs. Guinto, 182 SCRA 644, 654, supra.

16 Froilan vs. Pan Oriental Shipping, G.R. No. 6060, 30 September 1950.

17 Santos vs. Santos, 92 Phil. 281; Lyons vs. United States of America, 104 SCRA
593.

18 United States of America vs. Guinto, 182 SCRA 644; United States of America vs.
Ruiz, 136 SCRA 487 (195).

19 136 SCRA 487.

20 35 SCRA 224, 229 (1970).

21 Cruz, supra., 44-45.

22 54 SCRA 84 (1973).

23 See also Commissioner of Public Highways vs. San Diego, 31 SCRA 616
(1970) citing others the following decisions: Merritt vs. Government, 34 Phil. 311
(1916); Visayan Refining Co. vs. Camus, 40 Phil. 550 (1919); Director of Commerce
vs. Concepcion, 43 Phil. 384 (1922); Belleng vs. Republic, 9 SCRA 6 (1963);
Republic vs. Palacio, 23 SCRA 899 (1968).
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 84607 March 19, 1993

REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN. ALFREDO LIM, GEN.
ALEXANDER AGUIRRE, COL. EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ.
FILEMON GASMEN, PAT. NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO
PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA,
PAT. NELSON TUASON, POLICE CORPORAL PANFILO ROGOS, POLICE LT. JUAN B.
BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO
NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT
BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA
CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE DISPERSAL
TEAM (MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA
CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD DOE, ROBERTO DOE
AND OTHER DOES, petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch IX, ERLINDA C.
CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA
GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE,
TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE
CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO
C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, ADELFA
ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and
(names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON
BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN
CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG, SOLOMON
MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE,
GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA,
WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS, ARNOLD ENAJE,
MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER,
RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE,
BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO,
FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS,
MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN
LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO,
BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO
MEDINA, LITO NOVENARIO, and ROSELLA ROBALE, respondents.

G.R. No. 84645 March 19, 1993

ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA

EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA
YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA
ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the
deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO GRAMPA, ANGELITO
GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL, LEOPOLDO ALONZO, ADELFA
ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and
(names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON
BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN
CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON
MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE,
GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA,
WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS, ARNOLD ENAJE,
MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER,
RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE,
BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO,
FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS,
MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN
LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO,
BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO
MEDINA, LITO NOVENARIO, ROSELLA ROBALE, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G. SANDOVAL, Regional
Trial Court of Manila, Branch 9, respondents.

The Solicitor General for the Republic of the Philippines.

Structural Alternative Legal Assistance for Grassroots for petitioners in 84645 & private
respondents in 84607.

CAMPOS, JR., J.:

People may have already forgotten the tragedy that transpired on January 22, 1987. It is quite
ironic that then, some journalists called it a Black Thursday, as a grim reminder to the nation
of the misfortune that befell twelve (12) rallyists. But for most Filipinos now, the Mendiola
massacre may now just as well be a chapter in our history books. For those however, who
have become widows and orphans, certainly they would not settle for just that. They seek
retribution for the lives taken that will never be brought back to life again.

Hence, the heirs of the deceased, together with those injured (Caylao group), instituted this
petition, docketed as G.R. No. 84645, under Section 1 of Rule 65 of the Rules of Court,
seeking the reversal and setting aside of the Orders of respondent Judge Sandoval,1 dated
May 31 and August 8, 1988, dismissing the complaint for damages of herein petitioners against the
Republic of the Philippines in Civil Case No. 88-43351.

Petitioner, the Republic of the Philippines, through a similar remedy, docketed as G.R. No. 84607,
seeks to set aside the Order of respondent Judge dated May 31, 1988, in Civil Case No. 88-43351
entitled "Erlinda Caylao, et al. vs. Republic of the Philippines, et al."

The pertinent portion of the questioned Order2 dated May 31, 1988, reads as follows:

With respect however to the other defendants, the impleaded Military Officers, since
they are being charged in their personal and official capacity, and holding them
 liable, if at all, would not result in financial responsibility of the government, the
principle of immunity from suit can not conveniently and correspondingly be applied
to them.

WHEREFORE, the case as against the defendant Republic of the Philippines is

hereby dismissed. As against the rest of the defendants the motion to dismiss is
denied. They are given a period of ten (10) days from receipt of this order within
which to file their respective pleadings.

On the other hand, the Order3 , dated August 8, 1988, denied the motions filed by both parties, for a
reconsideration of the abovecited Order, respondent Judge finding no cogent reason to disturb the
said order.

The massacre was the culmination of eight days and seven nights of encampment by members of
the militant Kilusang Magbubukid sa Pilipinas (KMP) at the then Ministry (now Department) of
Agrarian Reform (MAR) at the Philippine Tobacco Administration Building along Elliptical Road in
Diliman, Quezon City.

The farmers and their sympathizers presented their demands for what they called "genuine agrarian
reform". The KMP, led by its national president, Jaime Tadeo, presented their problems and
demands, among which were: (a) giving lands for free to farmers; (b) zero retention of lands by
landlords; and (c) stop amortizations of land payments.

The dialogue between the farmers and the MAR officials began on January 15, 1987. The two days
that followed saw a marked increase in people at the encampment. It was only on January 19, 1987
that Jaime Tadeo arrived to meet with then Minister Heherson Alvarez, only to be informed that the
Minister can only meet with him the following day. On January 20, 1987, the meeting was held at the
MAR conference room. Tadeo demanded that the minimum comprehensive land reform program be
granted immediately. Minister Alvarez, for his part, can only promise to do his best to bring the
matter to the attention of then President Aquino, during the cabinet meeting on January 21, 1987.

Tension mounted the following day. The farmers, now on their seventh day of encampment,
barricaded the MAR premises and prevented the employees from going inside their offices. They
hoisted the KMP flag together with the Philippine flag.

At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo and his leaders,
advised the latter to instead wait for the ratification of the 1987 Constitution and just allow the
government to implement its comprehensive land reform program. Tadeo, however, countered by
saying that he did not believe in the Constitution and that a genuine land reform cannot be realized
under a landlord-controlled Congress. A heated discussion ensued between Tadeo and Minister
Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating panel from each side to
meet again the following day.

On January 22, 1987, Tadeo's group instead decided to march to Malacañang to air their demands.
Before the march started, Tadeo talked to the press and TV media. He uttered fiery words, the most
telling of which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din
niya ang barikada sa Mendiola sapagkat bubutasin din namin iyon at dadanak ang dugo . . . ."4

The farmers then proceeded to march to Malacañang, from Quezon Memorial Circle, at 10:00 a.m.
They were later joined by members of other sectoral organizations such as the Kilusang Mayo Uno
(KMU), Bagong Alyansang Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso
ng Pagkakaisa ng Maralitang Lungsod (KPML).

At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held a brief program. It
was at this point that some of the marchers entered the eastern side of the Post Office Building, and
removed the steel bars surrounding the garden. Thereafter, they joined the march to Malacañang. At
about 4:30 p.m., they reached C.M. Recto Avenue.

In anticipation of a civil disturbance, and acting upon reports received by the Capital Regional
Command (CAPCOM) that the rallyists would proceed to Mendiola to break through the police lines
and rush towards Malacañang, CAPCOM Commander General Ramon E. Montaño inspected the
preparations and adequacy of the government forces to quell impending attacks.

OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the command of Col.
Cesar Nazareno was deployed at the vicinity of Malacañang. The civil disturbance control units of
the Western Police District under Police Brigadier General Alfredo S. Lim were also activated.

Intelligence reports were also received that the KMP was heavily infiltrated by CPP/NPA elements
and that an insurrection was impending. The threat seemed grave as there were also reports that
San Beda College and Centro Escolar University would be forcibly occupied.

In its report, the Citizens' Mendiola Commission (a body specifically tasked to investigate the facts
surrounding the incident, Commission for short) stated that the government anti-riot forces were
assembled at Mendiola in a formation of three phalanges, in the following manner:

(1) The first line was composed of policemen from police stations Nos. 3, 4, 6, 7, 8, 9
and 10 and the Chinatown detachment of the Western Police District. Police Colonel
Edgar Dula Torres, Deputy Superintendent of the Western Police District, was
designated as ground commander of the CDC first line of defense. The WPD CDC
elements were positioned at the intersection of Mendiola and Legarda Streets after
they were ordered to move forward from the top of Mendiola bridge. The WPD forces
were in khaki uniform and carried the standard CDC equipment — aluminum shields,
truncheons and gas masks.

(2) At the second line of defense about ten (10) yards behind the WPD policemen
were the elements of the Integrated National Police (INP) Field Force stationed at
Fort Bonifacio from the 61st and 62nd INP Field Force, who carried also the standard
CDC equipment — truncheons, shields and gas masks. The INP Field Force
was under the command of Police Major Demetrio dela Cruz.

(3) Forming the third line was the Marine Civil Disturbance Control Battalion
composed of the first and second companies of the Philippine Marines stationed at
Fort Bonifacio. The marines were all equipped with shields, truncheons and M-16
rifles (armalites) slung at their backs, under the command of Major Felimon B.
Gasmin. The Marine CDC Battalion was positioned in line formation ten (10) yards
farther behind the INP Field Force.

At the back of the marines were four (4) 6 x 6 army trucks, occupying the entire width
of Mendiola street, followed immediately by two water cannons, one on each side of
the street and eight fire trucks, four trucks on each side of the street. The eight fire
trucks from Fire District I of Manila under Fire Superintendent Mario C. Tanchanco,
were to supply water to the two water cannons.
 Stationed farther behind the CDC forces were the two Mobile Dispersal Teams
(MDT) each composed of two tear gas grenadiers, two spotters, an assistant
grenadier, a driver and the team leader.

In front of the College of the Holy Spirit near Gate 4 of Malacañang stood the VOLVO
Mobile Communications Van of the Commanding General of CAPCOM/INP, General
Ramon E. Montaño. At this command post, after General Montaño had conferred
with TF Nazareno Commander, Colonel Cezar Nazareno, about the adequacy and
readiness of his forces, it was agreed that Police General Alfredo S. Lim would
designate Police Colonel Edgar Dula Torres and Police Major Conrado Franciscoas
negotiators with the marchers. Police General Lim then proceeded to the WPD CDC
elements already positioned at the foot of Mendiola bridge to relay to Police Colonel
Torres and Police Major Francisco the instructions that the latter would negotiate with
the marchers.5 (Emphasis supplied)

The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From C.M. Recto Avenue,
they proceeded toward the police lines. No dialogue took place between the marchers and the anti-
riot squad. It was at this moment that a clash occurred and, borrowing the words of the Commission
"pandemonium broke loose". The Commission stated in its findings, to wit:

. . . There was an explosion followed by throwing of pillboxes, stones and bottles.

Steel bars, wooden clubs and lead pipes were used against the police. The police
fought back with their shields and truncheons. The police line was breached.
Suddenly shots were heard. The demonstrators disengaged from the government
forces and retreated towards C.M. Recto Avenue. But sporadic firing continued from
the government forces.

After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt. Laonglaan
Goce sped towards Legarda Street and lobbed tear gas at the remaining rallyist still
grouped in the vicinity of Mendiola. After dispersing the crowd, the two MDTs,
together with the two WPD MDTs, proceeded to Liwasang Bonifacio upon order of
General Montaño to disperse the rallyists assembled thereat. Assisting the MDTs
were a number of policemen from the WPD, attired in civilian clothes with white head
bands, who were armed with long firearms.6 (Emphasis ours)

After the clash, twelve (12) marchers were officially confirmed dead, although according to Tadeo,
there were thirteen (13) dead, but he was not able to give the name and address of said victim.
Thirty-nine (39) were wounded by gunshots and twelve (12) sustained minor injuries, all belonging to
the group of the marchers.

Of the police and military personnel, three (3) sustained gunshot wounds and twenty (20) suffered
minor physical injuries such as abrasions, contusions and the like.

In the aftermath of the confrontation, then President Corazon C. Aquino issued Administrative Order
No. 11,7 (A.O. 11, for brevity) dated January 22, 1987, which created the Citizens' Mendiola
Commission. The body was composed of retired Supreme Court Justice Vicente Abad Santos as
Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Miranda, both as
members. A.O. 11 stated that the Commission was created precisely for the "purpose of conducting
an investigation of the disorder, deaths, and casualties that took place in the vicinity of Mendiola
Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of January 22,
1987". The Commission was expected to have submitted its findings not later than February 6, 1987.
But it failed to do so. Consequently, the deadline was moved to February 16, 1987 by Administrative
Order No. 13. Again, the Commission was unable to meet this deadline. Finally, on February 27,
1987, it submitted its report, in accordance with Administrative Order No. 17, issued on February 11,
1987.

In its report, the Commission recapitulated its findings, to wit:

(1) The march to Mendiola of the KMP led by Jaime Tadeo, together with the other
sectoral groups, was not covered by any permit as required under Batas Pambansa
Blg. 880, the Public Assembly Act of 1985, in violation of paragraph (a) Section 13,
punishable under paragraph (a), Section 14 of said law.

(2) The crowd dispersal control units of the police and the military were armed with
.38 and .45 caliber handguns, and M-16 armalites, which is a prohibited act under
paragraph 4(g), Section 13, and punishable under paragraph (b), Section 14 of Batas
Pambansa Blg. 880.

(3) The security men assigned to protect the WPD, INP Field Force, the Marines and
supporting military units, as well as the security officers of the police and military
commanders were in civilian attire in violation of paragraph (a), Section 10, Batas
Pambansa 880.

(4) There was unnecessary firing by the police and military crowd dispersal control
units in dispersing the marchers, a prohibited act under paragraph (e), Section 13,
and punishable under paragraph (b), Section 14, Batas Pambansa Blg. 880.

(5) The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden clubs with
spikes, and guns by the marchers as offensive weapons are prohibited acts
punishable under paragraph (g), Section 13, and punishable under paragraph (e),
Section 14 of Batas Pambansa Blg. 880.

(6) The KMP farmers broke off further negotiations with the MAR officials and were
determined to march to Malacañang, emboldened as they are, by the inflammatory
and incendiary utterances of their leader, Jaime Tadeo — "bubutasin namin ang
barikada . . Dadanak and dugo . . . Ang nagugutom na magsasaka ay gagawa ng
sariling butas. . .

(7) There was no dialogue between the rallyists and the government forces. Upon
approaching the intersections of Legarda and Mendiola, the marchers began pushing
the police lines and penetrated and broke through the first line of the CDC
contingent.

(8) The police fought back with their truncheons and shields. They stood their ground
but the CDC line was breached. There ensued gunfire from both sides. It is not clear
who started the firing.

(9) At the onset of the disturbance and violence, the water cannons and tear gas
were not put into effective use to disperse the rioting crowd.

(10) The water cannons and fire trucks were not put into operation because (a) there
was no order to use them; (b) they were incorrectly prepositioned; and (c) they were
out of range of the marchers.
 (11) Tear gas was not used at the start of the disturbance to disperse the rioters.
After the crowd had dispersed and the wounded and dead were being carried away,
the MDTs of the police and the military with their tear gas equipment and
components conducted dispersal operations in the Mendiola area and proceeded to
Liwasang Bonifacio to disperse the remnants of the marchers.

(12) No barbed wire barricade was used in Mendiola but no official reason was given
for its absence.8

From the results of the probe, the Commission recommended9 the criminal prosecution of four
unidentified, uniformed individuals, shown either on tape or in pictures, firing at the direction of the
marchers. In connection with this, it was the Commission's recommendation that the National
Bureau of Investigation (NBI) be tasked to undertake investigations regarding the identities of those
who actually fired their guns that resulted in the death of or injury to the victims of the incident. The
Commission also suggested that all the commissioned officers of both the Western Police District
and the INP Field Force, who were armed during the incident, be prosecuted for violation of
paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985. The
Commission's recommendation also included the prosecution of the marchers, for carrying deadly or
offensive weapons, but whose identities have yet to be established. As for Jaime Tadeo, the
Commission said that he should be prosecuted both for violation of paragraph (a), Section 13, Batas
Pambansa Blg. 880 for holding the rally without a permit and for violation of Article 142, as
amended, of the Revised Penal Code for inciting to sedition. As for the following officers, namely: (1)
Gen. Ramon E. Montaño; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres; (4)
Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their
failure to make effective use of their skill and experience in directing the dispersal operations in
Mendiola, administrative sanctions were recommended to be imposed.

The last and the most significant recommendation of the Commission was for the deceased and
wounded victims of the Mendiola incident to be compensated by the government. It was this portion
that petitioners (Caylao group) invoke in their claim for damages from the government.

Notwithstanding such recommendation, no concrete form of compensation was received by the

victims. Thus, on July 27, 1987, herein petitioners, (Caylao group) filed a formal letter of demand for
compensation from the Government. 10 This formal demand was indorsed by the office of the
Executive Secretary to the Department of Budget and Management (DBM) on August 13, 1987. The
House Committee on Human Rights, on February 10, 1988, recommended the expeditious payment
of compensation to the Mendiola victims. 11

After almost a year, on January 20, 1988, petitioners (Caylao group) were constrained to institute an
action for damages against the Republic of the Philippines, together with the military officers, and
personnel involved in the Mendiola incident, before the trial court. The complaint was docketed as
Civil Case No. 88-43351.

On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State
cannot be sued without its consent. Petitioners opposed said motion on March 16, 1988, maintaining
that the State has waived its immunity from suit and that the dismissal of the instant action is
contrary to both the Constitution and the International Law on Human Rights.

Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the
Republic of the Philippines on the ground that there was no waiver by the State. Petitioners (Caylao
group) filed a Motion for Reconsideration therefrom, but the same was denied by respondent judge
in his Order dated August 8, 1988. Consequently, Caylao and her co-petitioners filed the instant
petition.

On the other hand, the Republic of the Philippines, together with the military officers and personnel
impleaded as defendants in the court below, filed its petition for certiorari.

Having arisen from the same factual beginnings and raising practically identical issues, the two (2)
petitions were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The resolution of both petitions revolves around the main issue of whether or not the State has
waived its immunity from suit.

Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign
immunity from suit. It is their considered view that by the recommendation made by the Commission
for the government to indemnify the heirs and victims of the Mendiola incident and by the public
addresses made by then President Aquino in the aftermath of the killings, the State has consented
to be sued.

Under our Constitution the principle of immunity of the government from suit is expressly provided in
Article XVI, Section 3. The principle is based on the very essence of sovereignty, and on the
practical ground that there can be no legal right as against the authority that makes the law on which
the right depends. 12 It also rests on reasons of public policy — that public service would be hindered,
and the public endangered, if the sovereign authority could be subjected to law suits at the instance
of every citizen and consequently controlled in the uses and dispositions of the means required for
the proper administration of the government. 13

This is not a suit against the State with its consent.

Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the
deceased and the victims of the incident by the government does not in any way mean that liability
automatically attaches to the State. It is important to note that A.O. 11 expressly states that the
purpose of creating the Commission was to have a body that will conduct an "investigation of the
disorder, deaths and casualties that took place." 14 In the exercise of its functions, A.O. 11 provides
guidelines, and what is relevant to Our discussion reads:

1 Its conclusions regarding the existence of probable cause for the commission of
any offense and of the persons probably guilty of the same shall be sufficient
compliance with the rules on preliminary investigation and the charges arising
therefrom may be filed directly with the proper court. 15

In effect, whatever may be the findings of the Commission, the same shall only serve as the cause
of action in the event that any party decides to litigate his/her claim. Therefore, the Commission is
merely a preliminary venue. The Commission is not the end in itself. Whatever recommendation it
makes cannot in any way bind the State immediately, such recommendation not having become final
and, executory. This is precisely the essence of it being a fact-finding body.

Secondly, whatever acts or utterances that then President Aquino may have done or said, the same
are not tantamount to the State having waived its immunity from suit. The President's act of joining
the marchers, days after the incident, does not mean that there was an admission by the State of
any liability. In fact to borrow the words of petitioners (Caylao group), "it was an act of solidarity by
the government with the people". Moreover, petitioners rely on President Aquino's speech promising
that the government would address the grievances of the rallyists. By this alone, it cannot be inferred
that the State has admitted any liability, much less can it be inferred that it has consented to the suit.

Although consent to be sued may be given impliedly, still it cannot be maintained that such consent
was given considering the circumstances obtaining in the instant case.

Thirdly, the case does not qualify as a suit against the State.

Some instances when a suit against the State is proper are: 16

(1) When the Republic is sued by name;

(2) When the suit is against an unincorporated government agency;

(3) When the, suit is on its face against a government officer but the case is such that ultimate
liability will belong not to the officer but to the government.

While the Republic in this case is sued by name, the ultimate liability does not pertain to the
government. Although the military officers and personnel, then party defendants, were discharging
their official functions when the incident occurred, their functions ceased to be official the moment
they exceeded their authority. Based on the Commission findings, there was lack of justification by
the government forces in the use of firearms. 17 Moreover, the members of the police and military
crowd dispersal units committed a prohibited act under B.P. Blg. 880 18 as there was unnecessary
firing by them in dispersing the marchers. 19

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that
he is a public agent acting under the color of his office when his acts are wholly without
authority. 20 Until recently in 1991, 21 this doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged
status not claimed by any other official of the Republic. The military and police forces were deployed
to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very
people that they are duty-bound to protect. However, the facts as found by the trial court showed
that they fired at the unruly crowd to disperse the latter.

While it is true that nothing is better settled than the general rule that a sovereign state and its
political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be
invoked by both the military officers to release them from any liability, and by the heirs and victims to
demand indemnification from the government. The principle of state immunity from suit does not
apply, as in this case, when the relief demanded by the suit requires no affirmative official action on
the part of the State nor the affirmative discharge of any obligation which belongs to the State in its
political capacity, even though the officers or agents who are made defendants claim to hold or act
only by virtue of a title of the state and as its agents and servants. 22 This Court has made it quite
clear that even a "high position in the government does not confer a license to persecute or
recklessly injure another." 23

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed
the incident. Instead, the liability should fall on the named defendants in the lower court. In line with
the ruling of this court in Shauf vs. Court of Appeals, 24 herein public officials, having been found to
have acted beyond the scope of their authority, may be held liable for damages.
WHEREFORE, finding no reversible error and no grave abuse of discretion committed by
respondent Judge in issuing the questioned orders, the instant petitions are hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.

Gutierrez, Jr., J., is on leave.

# Footnotes

1 Judge Edilberto G. Sandoval was the presiding judge of Branch 9 of Regional Trial
Court, Manila.

2 Rollo of G.R. No. 84607, p. 65.

3 Ibid., pp. 73-76.

4 Ibid., p. 80.

5 Ibid., pp. 82-84.

6 Ibid., pp. 84-85.

7 Ibid., p. 158.

8 Ibid., pp. 102-103.

9 Ibid., pp. 107-109.

10 Rollo, G.R. No. 84645, pp. 36-38.

11 Ibid., pp. 125-126.

12 Kawananakoa vs. Polyblank, 205 U.S. 349-353, 51 L. Ed. 834 (1907).

13 The Siren vs. United States, 7 Wall. 152, 19 L. Ed. 129 (1869).

14 Supra, note 7.

15 Ibid.

16 J.G. BERNAS, CONSTITUTIONAL STRUCTURE AND POWERS OF

GOVERNMENT, NOTES AND CASES 414 (1st ed., 1991).

17 Rollo of G.R. No. 84607, pp. 196-197.

 18 Sec. 13. Prohibited Acts. — The following shall constitute violations of this Act:

xxx xxx xxx

(e) The unnecessary firing of firearms by a member of any law enforcement agency
or any person to disperse the public assembly;

xxx xxx xxx

19 Supra, note 17 at p. 102.

20 Festejo vs. Fernando, 94 Phil. 504 (1954) citing 43 Am. Jur. 86-90.

21 Chavez vs. Sandiganbayan, 193 SCRA 282 (1991).

22 Ruiz vs. Cabahug, 102 Phil. 110 (1957).

23 Supra, note 19.

24 191 SCRA 713 (1990).

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 70547 January 22, 1993

PHILIPPINE NATIONAL RAILWAYS and HONORIO CABARDO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, and BALIWAG TRANSIT, INC., respondents.

The Solicitor General for petitioner.

Leopoldo Sta. Maria for private respondents.

MELO, J.:

The imputation of culpa on the part of herein petitioners as a result of the collision between its strain,
bound for Manila from La Union, with a Baliwag transit bus at the railroad crossing on the road going
to Hagonoy, Bulacan on August l0, 1974, is the subject of the petition at bar directed against the
judgment of affirmance rendered by respondent court, through the Fourth Civil Cases Division
(Sison, Bidin (P), Veloso, JJ.), vis-a-vis the decretal portion handed down by the court of origin in:
 1. Ordering the defendants, jointly and severally to pay the plaintiff the amount of
P179,511.52 as actual damages.

2. Ordering the defendants jointly and severally to pay the plaintiff P436,642.03 as
reimbursement for the damages paid by the plaintiff to death, injury and damage
claimants.

3. Ordering the defendants jointly and severally to pay exemplary damages in the
amount of P50, 000.00 to the plaintiff.

4. Ordering the defendants jointly and severally to pay the plaintiff attorney's fees in
the amount of P5, 000.00.

5. Ordering the defendants, jointly and severally to pay the plaintiff interest at the
legal rate on the above amounts due the plaintiff from August 10, 1974 until fully
paid.

6. Ordering the defendants to pay the cost of this suit.

7. Ordering the dismissal of the defendants' counterclaim for lack of factual and legal
basis. (p. 101, Record on Appeal; p. 103. Rollo.)

Culled from the text of the assailed disposition are the facts of the case at bar which are hereunder
adopted verbatim:

The case arose from a collision of a passenger express train of defendant Philippine
National Railways, (PNR) coming from San Fernando, La Union and bound for
Manila and a passenger bus of Baliwag Transit, Inc. which was on its way to
Hagonoy, Bulacan, from Manila, but upon reaching the railroad crossing at Barrio
Balungao, Calumpit, Bulacan at about 1:30 in the afternoon of August 10, 1974, got
stalled and was hit by defendant's express train causing damages to plaintiff's bus
and its passengers, eighteen (18) of whom died and fifty-three (53) others suffered
physical injuries. Plaintiff alleging that the proximate cause of the collision was the
negligence and imprudence of defendant PNR and its locomotive engineer, Honorio
Cirbado, in operating its passenger train in a busy intersection without any bars,
semaphores, signal lights, flagman or switchman to warn the public of approaching
train that would pass through the crossing, filed the instant action for Damages
against defendants. The defendants, in their Answer traversed the material allegation
of the Complaint and as affirmative defense alleged that the collision was caused by
the negligence, imprudence and lack of foresight of plaintiff's bus driver, Romeo
Hughes.

At the pre-trial conference held on June 23, 1976, the parties agreed on a partial
stipulation of facts and issues which as amplified at the continuation of the pre-trial
conference, on July 12, 1976, are as follows:

1 That plaintiff is a duly constituted corporation registered with the

Securities and Exchange Commission engaged in the business of
transportation and operating public utility buses for the public with
lines covering Manila, Caloocan City, Quezon City, Malabon, Rizal,
Bulacan, Pampanga and Nueva Ecija, and particularly from Manila to
Hagonoy, Bulacan and return in the month of August, l974 passing
thru the town of Calumpit Bulacan, temporarily while the bridge at
Hagonoy, Bulacan was under construction;

2 That defendant Philippine National Railways is a purely government

owned and controlled corporation duly registered and existing virtue
of Presidential Decree No. 741, with capacity to sue and be sued,
and is likewise engaged in transporting passengers and cargoes by
trains and buses and that, it operates a train line between San
Fernando, La Union and Manila particularly Passenger Express Train
with Body No. 73, passing along the intersection of Barrio Balungao,
Calumpit, Bulacan, in going to San Fernando, La Union from Manila
and return;

3. That on August 10, 1974, at about 1:20 o'clock in the afternoon, a

Baliuag Transit Bus with Body No. 1066 and Plate No. XS-929 PUB-
Bulacan '74 was driven by its authorized driver Romeo Hughes and
PNR Train No. 73 was operated by Train Engineer Honorio Cabardo
alias Honorio Cirbado and at the railroad intersection at Barrio
Balungao, Calumpit, Bulacan, said passenger train No. 73 hit and
bumped the right mid portion of the plaintiff's passenger bus No.
1066, while the rear portion of said bus was at the railroad track and
its direction was towards Hagonoy, Bulacan at about 1:30 o'clock in
the afternoon;

4. That at the time of the collision there was a slight rainfall in the
vicinity of the scene of the accident and that there was at said
intersection no bars, semaphores, and signal lights that would warn
the public of the approaching train that was about to pass through the
intersection and likewise there was no warning devices to passing
trains showing that they were about to pass an intersection in going
to Manila from San Fernando, La Union and back;

5. That on account of said collision, the Baliuag Transit Bus with Body
No. 1066 driven by Romeo Hughes was damaged and eighteen (18)
of its passengers died and the rest who were more than fifty three
(53) passengers suffered physical injuries;

6. That after the investigation the Chief of Police of Calumpit,

Bulacan, filed a criminal case of Reckless Imprudence Causing
Multiple Homicide with Multiple Physical Injuries and Damage to
Property against Romeo Hughes y Parfan, driver of the Baliuag
Transit bus docketed under Crim. Case No. 2392; while the train
Engineer Honorio Cabardo alias Honorio Cirbado was not included as
an accused in said case, although his train No. 73 was the one that
hit and bumped the right rear portion of the said bus;

7. That immediately after the said accident Major Manuel A. Macam,

Chief of the Municipal Police of Calumpit, Bulacan, together with
some of his policemen conducted an investigation of the accident;

8. That at the railroad crossing in Calumpit, Bulacan where the

accident took place there is no railroad crossing bar, however, during
 the pre-war days there was a railroad crossing bar at said
intersection; that, however, there was only one sign of railroad
crossing "Stop, Look and Listen" placed on a concrete slab and
attached to a concrete post existing at the approach of the railroad
track from the Highway going towards Hagonoy, Bulacan and that
after the said railroad track there was a designated jeep parking area
at the right side in the direction from the Highway to Hagonoy
Bulacan;

9. That the train No. 73 driven by Train Engineer Honorio Cabardo

alias Honorio Cirbado stopped after passing the railroad crossing at a
distance of about 50 meters from the said intersection after the
collision on August, 1974;

10. That the expected time of arrival of said Train No. 73 in Manila
was 2:41 P.M. and its departure time from San Fernando, La Union
was 9:00 A.M. and its expected arrival at Calumpit, Bulacan was 1:41
P.M. with no stop at Calumpit, Bulacan.

SIMPLIFICATION OF ISSUES

11. That the principal issue in the instant case is who between the
driver Romeo Hughes of Baliuag Transit, Incorporated and the train
engineer Honorio Cabardo alias Honorio Cirbado of the Philippine
National Railways was negligent or whether or not both are negligent;
that likewise which of said companies was negligent at said railroad
intersection;

12. That another additional issue is whether the Baliuag Transit

Incorporated has exercised the diligence of a good father of the
family in the selection and supervision of its employees. (pp.
85-87, Record on Appeal). ( Annex A, Petition; pp. 79-82, Rollo)

In addition, respondent court deemed it necessary to reflect the salient findings of the case for
damages as formulated by the trial court:

Posed for resolution are the following issues: Who between the driver Romeo
Hughes of the Baliuag Transit Incorporated and Honorio Cabardo, train Engineer of
the Philippine National Railways was negligent in the operation of their respective
vehicles, or whether or both were negligent? Could either of the companies Baliuag
Transit Incorporated and the Philippine National Railways be held accountable for
the collision because of negligence?

The defendants presented several statements or affidavits of alleged witnesses to

the collision, specifically Exhibits 2, 3, 4, 5, 6, 11, 13, 14, 15, 16, 17, 18 and 19; the
Court is at a loss as to why the persons who gave the said statements were not
presented as witnesses during the trial of the
case, as aptly said, the statements are hearsay evidence (Azcueta v. Cabangbang,
— 45 O.G. 144); at most they be taken as proof only of the fact that statements of
said persons were taken and that investigation was conducted of the incident; the
Court cannot consider the averments in said statements as testimonies or evidence
of truth.
Defendants endeavored to show that the proximate and immediate cause of the
collision was the negligence of the bus driver because the driver did not make a stop
before ascending the railtrack; he did not heed the warning or shoutings of
bystanders and passengers and proceeded in traversing the railtrack at a fast speed;
that the bus driver was in fact violating Section 42(d) of R.A. 4136, otherwise known
as the Land Transportation and Traffic Code for failure to "stop, look, and listen" at
the intersection, before crossing the railtrack; that it is incumbent upon him to take
the necessary precautions at the intersection because the railroad track is in itself a
warning; and the bus driver ignored such a warning and must assume the
responsibility for the result of the motion taken by him (U.S. v. Mananquil, 42 Phil.
90)

Except the testimony of the train engineer Cabardo, there is no admissible evidence
to show that indeed, the bus driver did not take the necessary precaution in
traversing the track. Note that he first noticed the bus when it was only 15 meters
away from him; he could not have possibly noticed the position of the bus before
negotiating the track.

On the other hand, it was shown by plaintiff that the bus driver Romeo Hughes took
the necessary precautions in traversing the track.

The bus driver had stopped before traversing the track and in fact asked the
conductor to alight and made a "Look and Listen" before proceeding; the conductor
had done just that and made a signal to proceed when he did not see any oncoming
train. (TSN, October 2l, 1976, p. 4); plaintiff's bus drivers and conductors are
enjoined to observe such a precautionary measure in seminars conducted by the
company. (TSN, September 23, 1976. pp. 26-27).

The evidence disclosed that the train was running fast because by his own
testimony, the train engineer had testified that before reaching the station of Calumpit
the terrain was downgrade and levelled only after passing the Calumpit bridge (TSN,
July 28, 1976, p. 14 ); the tendency of the train, coming from a high point is to
accelerate as the gravity will necessarily make it so, especially when it is pulling
seven coaches loaded with goods and passengers.

Moreover, upon impact, the bus loaded with passengers was dragged and thrown
into a ditch several meters away; the train had stopped only after the engine portion
was about 190 meters away from the fallen bus; several passengers were injured
and at least 20 died; such facts conclusively indicate that the train was speeding,
because if it were moving at moderate speed, it would not run some 190 meters after
impact and throw the bus at quite a distance especially so when it is claimed that the
train's emergency brakes were applied.

Further, the train was an express train; its departure was 9:00 A.M. at San Fernando,
La Union and expected in Manila at 2:41 P.M.; the collision occurred at 1:30 P.M. or
4 1/2 hours after it left La Union; surely, the train could have not negotiated such a
distance in so short a time if it were not running at fast speed.

It may be argued that a railroad is not subject to the same restrictions to the speed of
its train as a motorists (Mckelvey v. Delaware L. and W.R. Co. 253 App. D.V. 109,
300 NYS 1263 ); but it does not follow that a train will be permitted to run fast under
all conditions at any rate of speed it may choose. It must regulate its speed with
proper regard for the safety of human life and property (Johnson v. Southern Pacific
Company (Cal. App. 288 p. 81), considering the surrounding circumstances
particularly the nature of the locality (Atchinson, T. and SFR Co. v. Nicks (Arts) 165
p. 2d 167).

Cabardo's route included the passage over the said intersection; he could have
noticed that it is a very busy intersection because the crossroad leads to the
Calumpit Poblacion as well as to the neighboring town of Hagonoy; there was a
parking lot by the side of the track whereat passengers board jeepneys for the
neighboring barrios and towns; stalls abound in the vicinity and bystanders
congregate nearby. A prudent train operator must, under the circumstances, slacken
his speed almost for the protection of motorists and pedestrians, not only when a
collision is inevitable but even if no hindrance is apparent on the way;

Moreover, there was an intermittent rain at the time of the collision (see stipulation of
facts and photographs); the condition of the weather was such that even if for this
reason alone, the train engineer should have foreseen that danger of collision lurked
because of poor visibility of slippery road; he should have taken extra precaution by
considerably slackening its speed. This he failed to do even if the nature of his job
required him to observe care exercised by a prudent man.

Contributory negligence may not be ascribed to the bus driver; it was evident that he
had taken the necessary precautions before passing over the railway track; if the bus
was hit, it was for reasons beyond the control of the bus driver because he had no
place to go; there were vehicles to his left which prevented him in swerving towards
that direction; his bus stalled in view of the obstructions in his front where a sand and
gravel truck stopped because of a jeep maneuvering into a garage up front. All the
wheels at the bus have already passed the rail portion of the track and only the rear
portion of the bus' body occupied or covered the railtrack. This was evident because
the part of the bus hit by the train was the rear since the bus fell on a nearby ditch.
Otherwise, if the bus was really hit in mid-body, the bus could have been halved into
two because of the force of the impact.

The stipulation of facts between the parties show that there was no crossing bar at
the railroad intersection at Calumpit, Bulacan at the time of collision (par. 8,
Stipulation of Facts); the plaintiff contended and the defendants did not deny, that
there were no signal lights, semaphores, flagman or switchman thereat; the absence
of such devices, the plaintiff argues constitute negligence on the part of the
Philippine National Railways.

A railroad is not required to have a gate (crossing bar) or a flagman, or to maintain

signals at every intersection; only at such places reasonably necessary; what is
considered reasonably necessary will depend on the amount of travel upon the road,
the frequency with which trains pass over it and the view which could be obtained of
trains as they approach the crossing, and other conditions (Pari v. Los Angeles, Ry.
Corporation (Cal A2d) 128 p2d 563; Swdyk v. Indiana Harbor Belt R. Co. 148 F. 2d
795, and others).

As has been amply discussed, the crossroad at the intersection at Calumpit is one
which is a busy thoroughfare; it leads to the Poblacion at Calumpit and other barrios
as well as the town of Hagonoy; the vicinity is utilized as a parking and waiting area
for passengers of jeepneys that ply between the barrios, clearly, the flow of vehicular
 traffic thereat is huge. It can be said also that, since there is no other railtrack going
North except that one passing at Calumpit, trains pass over it frequently;

A portion of the intersection is being used as a parking area with stalls and other
obstructions present making it difficult, if not impossible, to see approaching trains
(see photographs).

The failure of the Philippine National Railways to put a cross bar, or signal light,
flagman or switchman, or semaphores is evidence of negligence and disregard of the
safety of the public, even if there is no law or ordinance requiring it, because public
safety demands that said devices or equipments be installed, in the light of aforesaid
jurisprudence. In the opinion of this Court the X sign or the presence of "STOP,
LOOK, LISTEN" warnings would not be sufficient protection of the motoring public as
well as the pedestrians, in the said intersection;

The parties likewise have stipulated that during the pre-war days, there was a
railroad crossing bar at the said intersection (Par-8, Stipulation of Facts). It appears
that it was a self imposed requirement which has been abandoned. In a case it was
held that where the use of a flagman was self imposed, the abandonment thereof
may constitute negligence. (Fleming v. Missouri and A. Ry. Co. 198 ARDC 290, 128
S.W. 2d 286 and others; cited in Sec. 1082 SCRWARTZ, Vol. 2). Similarly, the
abandonment by the PNR of the use of the crossing bar at the intersection at
Calumpit constitutes negligence, as its installation has become imperative, because
of the prevailing circumstances in the place.

A railroad company has been adjudged guilty of negligence and civilly liable for
damages when it failed to install semaphores, or where it does not see to it that its
flagman or switchman comply with their duties faithfully, to motorist injured by a
crossing train as long as he had crossed without negligence on his part (Lilius vs.
MRR, 39 Phil. 758). (Decision, pages 94-100, R A.; pp. 83-89, Rollo).

On the aspect of whether the Philippine National Railways enjoys immunity from suit, respondent
court initially noted that an exculpation of this nature that was raised for the first time on appeal may
no longer be entertained in view of the proscription under Section 2, Rule 9 of the Revised Rules of
Court, apart from the fact that the lawyer of petitioner agreed to stipulate inter alia that the railroad
company had capacity to sue and be sued. This being so, respondent court continued, PNR was
perforce estopped from disavowing the prejudicial repercussion of an admission in judicio. Even as
the laws governing the creation and rehabilitation of the PNR were entirely mute on its power to sue
and be sued, respondent court nonetheless opined that such prerogative was implied from the
general power to transact business pertinent or indispensable to the attainment of the goals of the
railroad company under Section 4 of Republic Act No. 4156 as amended by Republic Act No. 6366:

Sec. 4 General Powers — The Philippine National Railways shall have the following
general powers:

(a) To do all such other things and to transact all such business directly or indirectly
necessary, incidental or conducive to the attainment of the purpose of the
corporation; and

(b) Generally, to exercise all powers of a railroad corporation under the Corporation
law.
in conjunction with Section 2(b) of Presidential Decree No. 741:

(b) To own or operate railroad transways, bus lines, trucklines, subways, and other
kinds of land transportation, vessels, and pipelines, for the purpose of transporting
for consideration, passengers, mail and property between any points in the
Philippines;

Thus, respondent court utilized the doctrine of implied powers announced in National Airports
Corporation vs. Teodoro, Sr. and Philippine Airlines, Inc. (91 Phil. 203 [1952]), to the effect that the
power to sue and be sued is implicit from the faculty to transact private business. At any rate,
respondent court characterized the railroad company as a private entity created not to discharge a
governmental function but, among other things, to operate a transport service which is essentially a
business concern, and thus barred from invoking immunity from suit.

In brushing aside petitioners' asseveration that the bus driver outraced the train at the crossing,
respondent court observed that the bus was hit by the train at its rear portion then protruding over
the tracks as the bus could not move because another truck at its front was equally immobile due to
a jeep maneuvering into a nearby parking area. Under these tight conditions, respondent court
blamed the train engineer who admitted to have seen the maneuvering jeep at a distance (TSN, July
28, 1976, page 18) and had the last clear chance to apply the brakes, knowing fully well that the
vehicles following the jeep could not move away from the path of the train. Apart from these
considerations, it was perceived below that the train was running fast during the entire trip since the
train stopped 190 meters from the point of impact and arrived at Calumpit, Bulacan earlier than its
expected time of arrival thereat.

Moreover, respondent court agreed with the conclusion reached by the trial court that the absence of
a crossing bar, signal light, flagman or switchman to warn the public of an approaching train
constitutes negligence per the pronouncement of this Court in Lilius vs. Manila Railroad
Company (59 Phil 758 [1934]).

Concerning the exercise of diligence normally expected of an employer in the selection and
supervision of its employees, respondent court expressed the view that PNR was remiss on this
score since it allowed Honorio Cabardo, who finished only primary education and became an
engineer only through sheer experience, to operate the locomotive, not to mention the fact that such
plea in avoidance was not asserted in the answer and was thus belatedly raised on appeal.

Petitioner moved to reconsider, but respondent court was far from persuaded. Hence, the petition
before Us which, in essence, incorporates similar disputations anent PNR's immunity from suit and
the attempt to toss the burden of negligence from the train engineer to the bus driver of herein
private respondent.

The bone of contention for exculpation is premised on the familiar maxim in political law that the
State, by virtue of its sovereign nature and as reaffirmed by constitutional precept, is insulated from
suits without its consent (Article 16, Section 3, 1987 Constitution). However, equally conceded is the
legal proposition that the acquiescence of the State to be sued can be manifested expressly through
a general or special law, or indicated implicitly, as when the State commences litigation for the
purpose of asserting an affirmative relief or when it enters into a contract (Cruz,Philippine Political
Law, 1991 edition, page 33; Sinco, Philippine Political Law, Eleventh Edition, 1962, page 34). When
the State participates in a covenant, it is deemed to have descended from its superior position to the
level of an ordinary citizen and thus virtually opens itself to judicial process. Of course, We realize
that this Court qualified this form of consent only to those contracts concluded in a proprietary
capacity and therefore immunity will attach for those contracts entered into in a governmental
capacity, following the ruling in the 1985 case of United States of America vs. Ruiz (136 SCRA 487
[1985]; cited by Cruz, supra at pages 36-37). But the restrictive interpretation laid down therein is of
no practical worth nor can it give rise to herein petitioner PNR's exoneration since the case
of Malong vs. Philippine National Railways (138 SCRA 63, [1985]); 3 Padilla, 1987 Constitution with
Comments and Cases, 1991 edition, page 644), decided three months after Ruiz was promulgated,
was categorical enough to specify that the Philippine National Railways "is not performing any
governmental function" (supra, at page 68).

In Malong, Justice Aquino, speaking for the Court en banc, declared:

The Manila Railroad Company, the PNR's predecessor, as a common carrier, was
not immune from suit under Act No. 1510, its charter.

The PNR Charter, Republic Act No. 4156, as amended by Republic Act No. 6366
and Presidential Decree No. 741, provides that the PNR is a government
instrumentality under government ownership during its 50-year term, 1964 to 2014. It
is under the Office of the President of the Philippines. Republic Act No. 6366
provides:

Sec. 1-a. Statement of policy. — The Philippine National Railways,

being a factor for socio-economic development and growth, shall be a
part of the infrastructure program of the government and as such
shall remain in and under government ownership during its corporate
existence. The Philippine National Railways must be administered
with the view of serving the interests of the public by providing them
the maximum of service and, while aiming at its greatest utility by the
public, the economy of operation must be ensured so that service can
be rendered at the minimum passenger and freight prices possible.

The charter also provides:

Sec. 4. General powers. — The Philippine National Railways shall

have the following general powers:

(a) To do all such other things and to transact all such business
directly or indirectly necessary, incidental or conducive to the
attainment of the purpose of the corporation; and

(b) Generally, to exercise all powers of a railroad corporation under

the Corporation Law. (This refers to Sections 81 to 102 of the
Corporation Law on railroad corporations, not reproduced in the
Corporation Code.)

Section 36 of the Corporation Code provides that every corporation has the power to sue and be
sued in its corporate name. Section 13(2) of the Corporation Law provides that every corporation
has the power to sue and be sued in any court.

A sovereign is exempt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends (Justice Holmes
in Kawananakoa vs. Polyblank, 205 U.S. 353, 51 L. 3d 834).
 The public service would be hindered, and public safety endangered, if the supreme
authority could be subjected to suit at the instance of every citizen and,
consequently, controlled in the use and disposition of the means required for the
proper administration of the Government (The Siren vs. U.S., 7 Wall. 152, 19 L. ed.
129). (at pp.
65-66).

To the pivotal issue of whether the State acted in a sovereign capacity when it organized the PNR
for the purpose of engaging in transportation, Malong continued to hold that:

. . . in the instant case the State divested itself of its sovereign capacity when it
organized the PNR which is no different from its predecessor, the Manila Railroad
Company. The PNR did not become immune from suit. It did not remove itself from
the operation of Articles 1732 to 1766 of the Civil Code on common carriers.

The correct rule is that "not all government entities, whether corporate or
noncorporate, are immune from suits. Immunity from suit is determined by the
character of the objects for which the entity was organized." (Nat. Airports Corp. vs.
Teodoro and Phil. Airlines, Inc., 91 Phil. 203, 206; Santos vs. Santos, 92 Phil. 281,
285; Harry Lyons, Inc. vs. USA, 104 Phil. 593).

Suits against State agencies with respect to matters in which they have assumed to
act in a private or nongovernmental capacity are not suits against the State (81
C.J.S. 1319).

Suits against State agencies with relation to matters in which they

have assumed to act in a private or nongovernmental capacity, and
various suits against certain corporations created by the State for
public purposes, but to engage in matters partaking more of the
nature of ordinary business rather than functions of a governmental
or political character, are not regarded as suits against the State.

The latter is true, although the State may own the stock or property of
such a corporation, for by engaging in business operations through a
corporation the State divests itself so far of its sovereign character,
and by implicating consents to suits against the corporation. (81
C.J.S. 1319).

The foregoing rule was applied to State Dock Commissions carrying on business
relating to pilots, terminals and transportation (Standard Oil Co. of New Jersey vs.
U.S., 27 Fed. 2nd 370) and to State Highways Commissions created to build public
roads and given appropriations in advance to discharge obligations incurred in their
behalf (Arkansas State Highway Commission vs. Dodge, 26 SW 2nd 879 and State
Highway Commission of Missouri vs. Bates, 296 SW 418, cited in National Airports
case).

The point is that when the government enters into a commercial business it
abandons its sovereign capacity and is to be treated like any other private
corporation (Bank of the U.S. vs. Planters' Bank, 9 Wheat. 904, 6 L ed. 244, cited in
Manila Hotel Employees Association vs. Manila Hotel Company, et al., 73 Phil. 374,
388). The Manila Hotel case also relied on the following rulings:
 By engaging in a particular business through the instrumentality of a
corporation, the government divests itself pro hac vice of its
sovereign character, so as to render the corporation subject to the
rules of law governing private corporations.

When the State acts in its proprietary capacity, it is amenable to all

the rules of law which bind private individuals.

There is not one law for the sovereign and another for the subject, but
when the sovereign engages in business and the conduct of business
enterprises, and contracts with individuals, whenever the contract in
any form comes before the courts, the rights and obligation of the
contracting parties must be adjusted upon the same principles as if
both contracting parties were private persons. Both stand upon
equality before the law, and the sovereign is merged in the dealer,
contractor and suitor (People vs. Stephens, 71 N.Y. 549).

It should be noted that in Philippine National Railways vs. Union de Maquinistas, etc.,
L-31948, July 25, 1978, 84 SCRA 223, it was held that the PNR funds could be
garnished at the instance of a labor union.

It would be unjust if the heirs of the victim of an alleged negligence of the PNR
employees could not sue the PNR for damages. Like any private common carrier, the
PNR is subject to the obligations of persons engaged in that private enterprise. It is
not performing any governmental function.

Thus, the National Development Company is not immune from suit. It does not
exercise sovereign functions. It is an agency for the performance of purely corporate,
proprietary or business functions (National Development Company vs. Tobias, 117
Phil. 703, 705 and cases cited therein; National Development Company vs. NDC
Employees and Workers' Union, L-32387, August 19, 1975, 66 SCRA 18l, 184).

Other government agencies not enjoying immunity from suit are the Social Security
System (Social Security System vs. Court of Appeals,
L-41299, February 21, 1983, 120 SCRA 707) and the Philippine National Bank
(Republic vs. Philippine National Bank, 121 Phil. 26). (at pp. 66-68).

We come now to the question of whether respondent court properly agreed with the trial court in
imputing negligence on the part of the train engineer and his employer.

It was demonstrated beyond cavil in the course of the pre-trial hearings held for the purpose of
stipulating on crucial facts that the bus was hit on the rear portion thereof after it crossed the railroad
tracks. Then, too the train engineer was frank enough to say that he saw the jeep maneuvering into
a parking area near the crossing which caused the obstruction in the flow of traffic such that the
gravel and sand truck including the bus of herein private respondent were not able to move forward
or to take the opposite lane due to other vehicles. The unmindful demeanor of the train engineer in
surging forward despite the obstruction before him is definitely anathema to the conduct of a prudent
person placed under the same set of perceived danger. Indeed:

When it is apparent, or when in the exercise of reasonable diligence commensurate

with the surroundings it should be apparent, to the company that a person on its
track or to get on its track is unaware of his danger or cannot get out of the way, it
 becomes the duty of the company to use such precautions, by warnings, applying
brakes, or otherwise, as may be reasonably necessary to avoid injury to him. (65 Am.
Jur., Second Edition. p. 649).

Likewise, it was established that the weather condition was characterized with intermittent rain which
should have prompted the train engineer to exercise extra precaution. Also, the train reached
Calumpit, Bulacan ahead of scheduled arrival thereat, indicating that the train was travelling more
than the normal speed of 30 kilometers per hour. If the train were really running at 30 kilometers per
hour when it was approaching the intersection, it would probably not have travelled 190 meters more
from the place of the accident (page 10, Brief for Petitioners). All of these factors, taken collectively,
engendered the concrete and yes, correct conclusion that the train engineer was negligent who,
moreover, despite the last opportunity within his hands vis-a-vis the weather condition including the
presence of people near the intersection, could have obviated the impending collision had he
slackened his speed and applied the brakes (Picart vs. Smith, 37 Phil. 809 [1918]).Withal, these
considerations were addressed to the trial judge who, unlike appellate magistrates, was in a better
position to assign weight on factual questions. Having resolved the question of negligence between
the train engineer and the bus driver after collating the mass of evidence, the conclusion reached
thereafter thus commands great respect especially so in this case where respondent court gave its
nod of approval to the findings of the court of origin (Co vs. Court of Appeals, 193 SCRA 198; 206
[1991]); Amigo vs. Teves, 50 O.G. 5799; Regalado, Remedial Law Compendium, Fifth edition, page
353).

What exacerbates against petitioners' contention is the authority in this jurisdiction to the effect that
the failure of a railroad company to install a semaphore or at the very least, to post a flagman or
watchman to warn the public of the passing train amounts to negligence (Lilius vs. Manila Railroad
Company, 59 Phil. 758 [1934]).

WHEREFORE, the petition is hereby DISMISSED and the decision of respondent court AFFIRMED.

SO ORDERED.

Gutierrez, Jr., Davide, Jr. and Romero, JJ., concur.

Bidin, J., took no part.

CITIZENSHIP

EN BANC

March 8, 2016

G.R. No. 221697

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 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
Philippines8 but 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

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

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 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?

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 foundlings108 are not mentioned in the
enumeration of citizens under the 1935 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. She also has typical Filipino
1âw phi 1

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.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish
territory are considered Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the 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.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people born in
a country of unknown parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to
the notion that persons of "unknown parentage" are not citizens but only because their number was
not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
 During the debates on this provision, Delegate Rafols presented an amendment to include
as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen
of the Philippines, and also foundlings; but this amendment was defeated primarily because
the Convention believed that the cases, being too few to warrant the inclusion of a provision
in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it
was believed that the rules of international law were already clear to the effect that
illegitimate children followed the citizenship of the mother, and that foundlings followed the
nationality of the place where they were found, thereby making unnecessary the inclusion in
the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain
the constitutional 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 Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were
able to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of 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 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by
Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked 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 against foundlings." He exhorts that, given the grave implications of the
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 is on those who wish to use the constitution to discriminate against foundlings
to show that the constitution really intended to take this path to the dark side and inflict this across
the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present 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
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political 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 nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an intent to discriminate
against foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in
the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are
binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court
said:

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

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 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-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 COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a
candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact
of residence, not the statement of the person that determines residence for purposes of compliance
with the constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not
even considered by the SET as an issue against her eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was
made, petitioner did 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 action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was mentioned in the COC
for Senator. Such other facts of residence have never been proven to be false, and these, to repeat
include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old
enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 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.

Sometime in the second half of 2005, [petitioner's] mother discovered 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 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 belongings. [Petitioner] returned to the Philippines on 11 March
1a\^ /phi1

2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines
on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under
the exclusive ground of false representation, to consider no other date than that mentioned by
petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:

[T]he 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 GRANTED.

2. dated 11 December 2015, rendered through the COMELEC 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; stating that:

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.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to

DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.
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 Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

See Concurring Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting Opinion See Dissenting opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

I join J. Caguioa's Opinion

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion

JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

(I concur with the Dissenting Opinion of

See Dissenting Opinion
Justice Perlas-Bernabe)
ESTELA M. PERLAS-BERNABE
BIENVENIDO L. REYES
Associate Justice
Associate Justice

See Separate Concurring Opinion See Concurring Opinion

MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion

ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Footnotes

1
Petition for Certiorari in G.R. Nos. 221698-700, pp. 15-16; COMELEC First Division
Resolution dated 11 December 2015 in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and
SPA No. 15-139 (DC), p. 2.

2
Petition for Certiorari, id. at 16-17;

3
COMELEC First Division Resolution, supra note 1 at 4.

4
Petition for Certiorari, supra note 1 at 22.

5
Id. at 17; Comment (on the Petition for Certiorari in G.R. No. 221697) filed by respondent
COMELEC dated 11January 2016, p. 6.

6
Petition for Certiorari, id.; id. at 7.

7
Id. at 18.

8
Supra note 6.

9
Id.

10
COMELEC First Division Resolution, supra note 1 at 3.

11
Petition for Certiorari, supra note 1 at 17.

12
Id. at 18.

13
Id.

14
COMELEC First Division Resolution, supra note 10.

15
Id.

16
Supra note 1 at 17-18.

17
COMELEC First Division Resolution, supra note 10.

18
Id.

19
Id.

20
Petition for Certiorari, supra note 1 at 20.
21
Id.

22
Supra note 3.

23
Supra note 20.

24
Supra note 3.

25
Supra note 20.

26
Supra note 3.

27
Petition for Certiorari, supra note 4.

28
Id.

29
Id. at 23; COMELEC First Division Resolution, supra note 3.

30
Id.; id.

31
Id.; id.

32
Id.; id.

33
Id. at 23-24; COMELEC First Division Resolution, supra note 1 at 5.

34
Id. at 24; id.

35
Id.

36
Supra note 34.

37
Petition for Certiorari, supra note 1 at 25; COMELEC First Division Resolution, supra note
1 at 5.

38
Id. at 25-26; id.

39
Id. at 26; id.

40
Id.; id.

41
Id.; id.

42
Id. at 32; id. at 6.

43
Supra note 39.

Petition for Certiorari, supra note 1 at 26-27; COMELEC First Division Resolution, supra
44

note 1 at 5.
45
Section 5, R.A. No. 9225 states:

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

xx xx

3. Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
to their assumption of office: Provided, That they renounce their oath of allegiance to
the country where they took that oath;

xx xx

46
Petition for Certiorari, supra note 1 at 27.

47
Id. at 29.

48
Supra note 46; supra note 1 at 6.

49
Petition for Certiorari, supra note 1 at 30; id.

50
Id.

51
Supra note 48.

52
Petition for Certiorari, supra note 1 at 31; COMELEC First Division Resolution, supra note
1 at 6.

53
Comment, supra note 5 at 9.

54
Petition for Certiorari, supra note 1 at 31.

55
Id. at 32; Comment, supra note 53 at 10.

56
Id.; COMELEC First Division Resolution, supra note 1 at 6.

57
Id.; id. at 7.

58
Id.; id.

Comment (on the Petition in G.R. No. 221697) filed by respondent Elamparo, dated
59

January 6, 2016, p. 7.

60
COMELEC Second Division Resolution dated December 1, 2015 in SPA No. 15-001 (DC),
p. 7.

61
Id. at 7-8.
62
Supra note 60.

63
Id.

64
Id. at 8.

65
Id.

66
Petition for Certiorari in GR. No. 221697, p. 7.

67
Supra note 64.

Petition for Certiorari, supra note 65 at 8; COMELEC Second Division Resolution, supra
68

note 60 at 8-11.

69
COMELEC Second Division Resolution, supra note 60 at 34.

70
Comment, supra note 59 at 10.

71
Section 1 of Rule 25 of the COMELEC Rules of Procedure, as amended, states:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an 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.

72
Petition to Disqualify dated 19 October 2015 filed by Tatad in SPA No. 15-002 (DC), p. 9.

73
Id., at 9 and 14.

74
Id. at 10.

75
Id. at 12.

76
Id. at 11.

77
COMELEC First Division Resolution, supra note 1 at 8.

78
Id.

79
Petition to Disqualify, supra note 72 at 11.

80
Id. at 21.
81
Id.

82
Id.

83
Supra note I at 8.

84
Id.

85
Contreras' petition is a petition for cancellation of Grace Poe's COC under Section 78 of
the Omnibus Election Code which states that:

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

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

Petition for Cancellation of Grace Poe's COC dated 17 October 2015 filed by Contreras in
86

SPA No. 15-007 (DC), pp. 2-4.

87
Id. at 3; Petition for Certiorari, supra note l at 13.

88
Id. at 3-4.

89
Sections 12 and 68 of the Omnibus Election Code provide:

Sec. 12. Disqualifications. -Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed

upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified.

Sec. 68. Disqualifications. - Any candidate who, in an 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 of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
 under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.

90
COMELEC First Division Resolution, supra note 1 at 12.

91
Id. at 10.

92
Id.

93
Id. at 9.

94
Id.

95
Id.

96
Id.

97
Id.

98
Id.

99
Id.at 9-10.

100
Id.at 10.

101
Id.

102
Id.

The 11 December 2015 Resolution of the COMELEC First Division was concurred in by
103

Commissioners Louie Tito F. Guia and Ma. Rowena Amelia V. Guanzon. Presiding
Commissioner Christian Robert S. Lim issued a Separate Dissenting Opinion.

104
318 Phil. 329 (1995).

105
595 Phil. 449 (2008).

106
Romualdez-Marcos v. COMELEC, supra note 104 at 396-397.

107
Id. at 397-398; Fermin v. COMELEC, supra note 105 at 471-472.

In A.M. No. 02-6-02-SC, Resolution Approving The Proposed Rule on Adoption (Domestic
108

and Inter-Country), effective 22 August 2002, "foundling" is defined as "a deserted or

abandoned infant or child whose parents, guardian or relatives are unknown; or a child
committed to an orphanage or charitable or similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a "foundling."

109
Article IV-Citizenship.
 Sec. I. 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 Philippine Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.

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

(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by

law.

Article 163 to 182, Title VI of Executive Order No. 209, otherwise known as The Family
110

Code of the Philippines, which took effect on 4 August 1988.

111
Statistics from the PSA or its predecessor agencies are admissible evidence. See Herrera
v. COMELEC, 376 Phil. 443 (I 999) and Bagabuyo v. COMELEC, 593 Phil. 678 (2008). In
the latter case, the Court even took judicial notice of the figures.

112
Transcipt of Stenographic Notes, 9 February 2016, p. 40.

113
Section 3 (y), Rule 131.

114
236 Phil. 307 (1987).

115
Id. at314-315.

English translation of the Spanish original presented in the petitioner's pleadings before
116

the COMELEC and this Court. The COMELEC and private respondents have not disputed
the accuracy and correctness of the translation.

117
I Jose M. Aruego, The Framing of the Philippine Constitution 209 (1949).

118
TSN, 16 February 2016, pp. 20-21.

119
117 Phil. 976 (1963).

120
Id. at 978-979.

121
See Section 5 of the RA No. 8552: "Location of Unknown Parent(s). - It shall be the duty of
the Department or the child-caring agency which has custody of the child to exert all efforts
to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered
as a foundling and subsequently be the subject of legal proceedings where he/she shall be
declared abandoned." (Underlining supplied)

122
See Exhibit "l" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

123
See Exhibit "2" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

Razon, Jr. v. Tagitis, 621 Phil. 536, 600 (2009) citing Pharmaceutical and Health Care
124

Assoc. of the Philippines v. Duque III, 561 Phil. 386, 398 (2007).

125
Article 38.1, paragraphs (b) and (c) of the Statute of the International Court of Justice.

126
Mijares v. Ranada, 495 Phil. 372, 395 (2005).

Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, 561 Phil. 386, 400
127

(2007).

128
International School Alliance of Educators v. Quisumbing, 388 Phil. 661, 672-673 (2000).

129
CONSTITUTION, Art. III, Sec. 1.

130
Rep. of the Philippines v. Sandiganbayan, 454 Phil. 504, 545 (2003).

131
"Everyone has the right to a nationality."

132
See Introductory Note to the United Nations Convention on the Reduction of Statelessness
issued by the United Nations High Commissioner on Refugees.

133
Supra note 124.

134
Supra note 126.

135
Id. at 392; See footnote No. 55 of said case.

136
Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, supra note 127.

137
See Exhibits 38 and 39-series.

138
Opening Statement of the Solicitor General, p. 6.

First Division resolution dated 11 December 2015, upheld in toto by the COMELEC En
139

Banc.

140
409 Phil. 633, 649 (2001).

141
692 Phil. 407, 420 (2012).

142
551 Phil. 368, 381 (2007).

143
53 I Phil. 407, 417 (2006).
144
Supra note 142.

145
Supra note 140 at 646.

146
Id. at 651.

147
G.R. No. 217126-27, 10 November 2015.

148
Id.

149
Implementing Rules and Regulations of Republic Act No. 8552, Art. VI, Sec. 33.

150
Republic Act No. 8552 (1998), Sec. 14.

151
Republic Act No. 8552 (1998), Sec. 15.

152
Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660 (2009)
citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009) further citing Papandayan, Jr. v.
COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC,
Br. 7, Tacloban City, G.R. No. 104960, 14 September 1993, 226 SCRA408, 415.

153
Domino v. COMELEC, 369 Phil. 798, 819 (1999).

154
TSN, 16 February 2016, p. 120.

155
434 Phil. 861 (2002).

156
596 Phil. 354 (2009).

157
G.R. No. 209835, 22 September 2015.

158
G.R. No. 207264, 25 June 2013, 699 SCRA 522.

159
Supra note 155.

160
Supra note 156.

161
Supra note 157.

162
Supra note 158.

163
Republic Act No. 6768 (1989), as amended, Sec. 2(a).

164
Republic Act No. 6768 (1989), as amended, Sec. I.

165
Republic Act No. 6768 (1989), as amended, Sec. 6.

166
Supra note 155.

167
Supra note 104 at 326. (Emphasis supplied)
 168
Ugdoracion, Jr. v. COMELEC, 575 Phil. 253, 265-266 (2008).

In Mitra v. COMELEC, et al., [636 Phil. 753 (2010)], It was ruled that the residence
169

requirement can be complied with through an incremental process including acquisition of

business interest in the pertinent place and lease of feedmill building as residence.

170
COMELEC Resolution dated 11 December2015 in SPA No. 15-002 (DC), pp. 4-5.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L.
LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question
of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction
to conduct any inquiry into this matter, considering that the petition for quo warranto against him was
not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of
the payment of the filing fee, which the petitioner contends was an indispensable requirement. The
fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a
horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the
reglementary period, there is no question that this petition must be granted and the challenge
abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20,
1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no
filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be
deemed filed only when the fee was paid. This was done beyond the reglementary period provided
for under Section 253 of the Omnibus Election Code reading as follows:
 SEC. 253. Petition for quo warranto. — Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the ground
of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the proclamation
of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of
a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research
fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is
essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this
effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it
was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the
COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288.
No docket fee was collected although it was offered. It was only on February 8, 1988, that the
COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case
No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

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

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the
payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of
the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively.
To this, the private respondent counters that the latter resolution was intended for the local elections
held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be
governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3,
1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise
known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section
30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and
regulations promulgated by the Commission shall take effect on the seventh day
after their publication in the Official Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo
warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day
period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-
proclamation proceeding which did not require the payment of a filing fee. At that, we reach this
conclusion only on the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its
publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer,
or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have
been is not imputable to the private respondent's fault or neglect. It is true that in
the Manchester Case, we required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this
Court, taking into account the special circumstances of that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only
upon the payment of the prescribed filing fee. However, the court may allow the
payment of the said fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted
on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his
alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the
requirement of citizenship as a qualification for public office can be so demeaned. What is worse is
that it is regarded as an even less important consideration than the reglementary period the
petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the
timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of
that proceeding, and considering the necessity for an early resolution of that more important
question clearly and urgently affecting the public interest, we shall directly address it now in this
same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear
that our sole function in this proceeding should be to resolve the single issue of
whether or not the Court of Appeals erred in ruling that the motion for new trial of the
GSIS in question should indeed be deemed pro forma.But going over the extended
pleadings of both parties, the Court is immediately impressed that substantial justice
may not be timely achieved, if we should decide this case upon such a technical
ground alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently knowledgeable and
unusually competent counsel, and we feel we can better serve the interests of justice
by broadening the scope of our inquiry, for as the record before us stands, we see
that there is enough basis for us to end the basic controversy between the parties
here and now, dispensing, however, with procedural steps which would not anyway
affect substantially the merits of their respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the
respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this
case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin,
(112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of
Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to

settle the entire controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation. No useful purpose will be
served if this case is remanded to the trial court only to have its
decision raised again to the Intermediate Appellate Court and from
there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring
the case back to the Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable time has already
elapsed and, to serve the ends of justice, it is time that the controversy is finally laid
to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57;
Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of
Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil. 162). Sound practice seeks to accommodate the theory which
lâw phî1.ñèt

avoids waste of time, effort and expense, both to the parties and the government, not
to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592,
597). A marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat
v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v.
Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court
act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends of
justice would not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had already
received all the evidence of the parties. 8
This course of action becomes all the more justified in the present case where, to repeat for stress, it
is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted

as "its own" private respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for quo warranto filed by
private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982,
and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the
Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner
was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without prejudice to the issue of the respondent's
citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while
Commissioner Felipe was for deferring decision until representations shall have been made with the
Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is
important to observe that in the proceeding before the COMELEC, there was no direct proof that the
herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was
eventually rejected, was merely inferred from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien with the CID upon his return to this
country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still
an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is
reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of

appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October
1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting
Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in
response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that
the statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
 was not required to meet normal requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must
take an oath of allegiance or make an affirmation of allegiance. The wording of the
oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50
of Australian Citizenship Act 1948 which relates to the giving of false or misleading
information of a material nature in respect of an application for Australian citizenship.
If such a prosecution was successful, he could be deprived of Australian citizenship
under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian
citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under

Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary
act other than marriage, then he would automatically lose as Australian citizenship
under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF

THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT
MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry
made with the Australian Government through the Embassy of the Philippines in
Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.
 Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as
follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the laws
of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

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

The petitioner does not question the authenticity of the above evidence. Neither does he deny that
he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in
1980, when he declared before the immigration authorities that he was an alien and registered as
such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his
status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate
of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a
number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of
the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not
divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this
finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was
not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when
he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's
political affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as
the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the
petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res
judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically
ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was
naturalized as such through a formal and positive process, simplified in his case because he was
married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national
and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against
the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may
be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of
citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a
foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after
it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did
not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted country. What we must consider is
the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a
citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship
upon him. Neither has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special Committee on
Naturalization created by Letter of Instruction No. 270, and, if their applications are
approved, taking the necessary oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired Philippine citizenship. The
Commission on Immigration and Deportation shall thereupon cancel their certificate
of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the
cancellation of his alien certificate of registration. And that is also the reason we must deny his
present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen
of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of
his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42
of the Local Government Code providing in material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the

Philippines, at least twenty-three years of age on election day, a qualified voter
registered as such in the barangay, municipality, city or province where he proposes
to be elected, a resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English, Filipino, or any other
local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not
frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous
majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only
about 2,100 votes. In any event, the people of that locality could not have, even unanimously,
changed the requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that
he was qualified only strengthens the conclusion that the results of the election cannot nullify the
qualifications for the office now held by him. These qualifications are continuing requirements; once
any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar,
the citizenship and voting requirements were not subsequently lost but were not possessed at all in
the first place on the day of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985.
In that case, the candidate who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then 23 with three dissenting 24 and another two reserving their
vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported
by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took
no part 31 and two others were on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
 disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for
another land that may offer him material and other attractions that he may not find in his own
country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his
allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It
may be restored only after the returning renegade makes a formal act of re-dedication to the country
he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of
the Philippines. This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to
VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision
becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire
of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the
Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I
cannot see how the Court can countenance a citizen of a foreign country or one who has renounced
Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction
of the COMELEC and remanding the case for further proceedings and the rendition of a decision.
Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a
copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence
is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds
for disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by
the singular achievements in the beautification of Baguio City, in the peace and order situation, and
in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case can be resolved except by adopting
a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I
join the rest of the Court.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire
of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the
Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I
cannot see how the Court can countenance a citizen of a foreign country or one who has renounced
Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the
citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction
of the COMELEC and remanding the case for further proceedings and the rendition of a decision.
Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a
copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence
is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds
for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by

the singular achievements in the beautification of Baguio City, in the peace and order situation, and
in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo
assumed the mayorship. However, I see no other way this case can be resolved except by adopting
a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I
join the rest of the Court.

Footnotes

1 49 SCRA 562. SYCIP, SALAZAR

2 Sec. 248. Effect of filing petition to annul or suspend the proclamation. The filing
with the Commission of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an election
protest or quo warranto proceedings.
3 Rule 44, See. 4. COMELEC Rules of Procedure, Effectivity. These Rules shall be
published in the Official Gazette and shall take effect on the seventh day following its
publication. Actually, the Rules became effective seven days after the official release
of the Official Gazette dated June 27, 1988 on November 8, 1988.

4 146 SCRA 446.

5 G.R. Nos. 79937-38, February 13, 1989.

6 Velasco v. Court of Appeals, 95 SCRA 616. See also Ortigas v. RUIZ, 148 SCRA
326; First Asian Transport and Shipping Agency, Inc. v. Ople 142 SCRA 542;
Quisumbing v. Court of Appeals, 122 SCRA 031 Del Castillo v. Jaymalin, 112 SCRA
629; Francisco v. City, of Davao, 12 SCRA 628.

7 Tejones v. Gironella 159 SCRA 100.

8 Lianga Bay Logging Co., Inc. v. CA, 157 SCRA 357.

9 Rollo, p. 159.

10 Ibid., pp. 182A-1 95.

11 Id., pp. 94-107.

12 Id. Emphasis supplied.

13 Id. Emphasis supplied.

14 Id. Emphasis supplied.

15 Id. Emphasis supplied.

16 Id.

17 Id.

18 (i) Statement dated 25 November 1976 that he is an "Australian made before Det.
Abaya.

(ii) Statement affirming that he is an Australian citizen in the affidavit-complaint

executed on 1 July 1988 and in the complaint filed on 13 January 1982 with the City,
Court of Baguio: "... being an Australian citizen the subject of this complaint is one of
which the Barangay Court cannot take cognizance of."

19 Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v. Commissioner of

Immigration, 42 SCRA 561; Sia Reyes v. Deportation Board, 122 SCRA 478.

20 Rollo, pp. 159-160.

21 Art. V, Sec. 1, 1987 Constitution.

 22 137 SCRA 740.

23 Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la

Fuente, Alampay and Aquino, JJ., concurring.

24 Teehankee, Acting C.J., Abad Santos and Melencio- Herrera,

25 Plana and Gutierrez, Jr., JJ.

26 Fernando, C.J.

27 136 SCRA 435.

28 23 Phil. 238.

29 Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera,

Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring.

30 Makasiar, J.

31 Aquino, J.

32 Fernando, C.J. and Concepcion, Jr., C.J.

33 Except in times of war, under CA No. 63.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,

vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the
mischief at which it is aimed.1 The 1987 Constitution mandates that an aspirant for election to the
House of Representatives be "a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately preceding the election."2 The
mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent
is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that community."3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED

IMMEDIATELY PRECEDING THE ELECTION: __________ Years
and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and
Disqualification"5 with the Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for candidates for the House of
Representatives on the evidence of declarations made by her in Voter Registration Record 94-No.
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.

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.

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

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, 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 reasons, stays in
one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to
particular matters is synonymous with "domicile" is a question of some difficulty, and
the ultimate decision must be made from a consideration of the purpose and intent
with which the word is used. Sometimes they are used synonymously, at other times
they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the other
hand, domicile can exist without actually living in the place. The important thing for
domicile is that, once residence has been established in one place, there be an
intention to stay there permanently, even if residence is also established in some
other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the
marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common
matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses
could not be compelled to live with each other such that the wife is either allowed to maintain a
residence different from that of her husband or, for obviously practical reasons, revert to her original
domicile (apart from being allowed to opt for a new one). In De la Vina vs.Villareal 43 this Court held
that "[a] married woman may acquire a residence or domicile separate from that of her husband
during the existence of the marriage where the husband has given cause for divorce." 44 Note that
the Court allowed the wife either to obtain new residence or to choose a new domicile in such an
event. In instances where the wife actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile of origin, the Court has held that
the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques
de Arroyo 45 the Court held that:

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

In the voluminous jurisprudence of the United States, only one court, so far as we
can discover, has ever attempted to make a preemptory order requiring one of the
spouses to live with the other; and that was in a case where a wife was ordered to
follow and live with her husband, who had changed his domicile to the City of New
Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code.
It was decided many years ago, and the doctrine evidently has not been fruitful even
in the State of Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have

affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return
to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to
deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in respect to the use and control of
her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was
obliged — by virtue of Article 110 of the Civil Code — to follow her husband's actual place of
residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of
residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which
of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed
any of these places as the conjugal residence, what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference between the intentions of the Civil
Code and the Family Code drafters, the term residence has been supplanted by the term domicile in
an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article
110. The provision recognizes revolutionary changes in the concept of women's rights in the
intervening years by making the choice of domicile a product of mutual agreement between the
spouses. 46
Without as much belaboring the point, the term residence may mean one thing in civil law (or under
the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil
Code is concerned-affecting the rights and obligations of husband and wife — the term residence
should only be interpreted to mean "actual residence." The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage
and only acquired a right to choose a new one after her husband died, petitioner's acts following her
return to the country clearly indicate that she not only impliedly but expressly chose her domicile of
origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally
expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner
obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an
act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman.
She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her arrival in various
parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover,
and proceeding from our discussion pointing out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it
would be highly illogical for us to assume that she cannot regain her original domicile upon the death
of her husband absent a positive act of selecting a new one where situations exist within the
subsistence of the marriage itself where the wife gains a domicile different from her husband.

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

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the
assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in
violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the
House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the
election of members of the House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is
generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate
the judgment on the theory that if the statute had intended such result it would have clearly indicated
it." 50 The difference between a mandatory and a directory provision is often made on grounds of
necessity. Adopting the same view held by several American authorities, this court in Marcelino
vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on

grounds of expediency, the reason being that less injury results to the general public
by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a

limitation of thirty (30) days within which a decree may be entered without the
consent of counsel, it was held that "the statutory provisions which may be thus
 departed from with impunity, without affecting the validity of statutory proceedings,
are usually those which relate to the mode or time of doing that which is essential to
effect the aim and purpose of the Legislature or some incident of the essential act."
Thus, in said case, the statute under examination was construed merely to be
directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in
the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely
on the ground of having failed to reach a decision within a given or prescribed period.

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

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

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in
a case. Obviously a distinction was made on such a ground here. Surely, many established
principles of law, even of election laws were flouted for the sake perpetuating power during the pre-
EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA
ourselves bending established principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the
past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications
to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.

Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things
that are unalike should be treated unalike in proportion to their unalikeness.1 Like other candidates,
petitioner has clearly met the residence requirement provided by Section 6, Article VI of the
Constitution.2 We cannot disqualify her and treat her unalike, for the Constitution guarantees equal
protection of the law. I proceed from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I consider Tacloban as her initial domicile,
both her domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of
her parents when she was a minor; and her domicile of choice, as she continued living there even
after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand
E. Marcos. By contracting marriage, her domicile became subject to change by law, and the right to
change it was given by Article 110 of the Civil Code 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.3 (Emphasis supplied)

In De la Viña v. Villareal and Geopano,4 this Court explained why the domicile of the wife
ought to follow that of the husband. We held: "The reason is founded upon the theoretic
identity of person and interest between the husband and the wife, and the presumption that,
from the nature of the relation, the home of one is the home of the other. It is intended to
promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where
union and harmony prevail."5 In accord with this objective, Article 109 of the Civil Code also
obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to former President
Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her
marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code
merely gave the husband the right to fix the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile
remains unchanged. The husband can also implicitly acquiesce to his wife's prior domicile even if it
is different. So we held in de la Viña,6

. . . . When married women as well as children subject to parental authority live, with
the acquiescence of their husbands or fathers, in a place distinct from where the
latter live, they have their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile
by the husband that will change the domicile of a wife from what it was prior to their
marriage. The domiciliary decision made by the husband in the exercise of the right
conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the husband cannot change in any way the
domicile legally fixed by the husband. These acts are void not only because the wife lacks
the capacity to choose her domicile but also because they are contrary to law and public
policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the
family domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At
that particular point of time and throughout their married life, petitioner lost her domicile in Tacloban,
Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not affected in
1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she
registered as a voter. It was not also affected in 1965 when her husband was elected President,
when they lived in Malacañang Palace, and when she registered as a voter in San Miguel, Manila.
Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency of her husband as President of
the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any such change. To a large degree, this
follows the common law that "a woman on her marriage loses her own domicile and by operation of
law, acquires that of her husband, no matter where the wife actually lives or what she believes or
intends."7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of
former President Marcos on petitioner's Batac domicile. The issue is of first impression in our
jurisdiction and two (2) schools of thought contend for acceptance. One is espoused by our
distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American authorities.8 He echoes
the theory that after the husband's death, the wife retains the last domicile of her husband until she
makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead
husband's domicile is based on ancient common law which we can no longer apply in the Philippine
setting today. The common law identified the domicile of a wife as that of the husband and denied to
her the power of acquiring a domicile of her own separate and apart from him.9 Legal scholars agree
that two (2) reasons support this common law doctrine. The first reason as pinpointed by the
legendary Blackstone is derived from the view that "the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and consolidated into that of the husband."10 The second
reason lies in "the desirability of having the interests of each member of the family unit governed by
the same law."11 The presumption that the wife retains the domicile of her deceased husband is
an extension of this common law concept. The concept and its extension have provided some of the
most iniquitous jurisprudence against women. It was under common law that the 1873 American
case of Bradwell v. Illinois 12 was decided where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life . . . This is the law of the Creator." Indeed,
the rulings relied upon by Mr. Justice Davide in CJS 13 and AM JUR 2d14 are American state court
decisions handed down between the years 191715 and 1938,16 or before the time when women were
accorded equality of rights with men. Undeniably, the women's liberation movement resulted in far-
ranging state legislations in the United States to eliminate gender inequality.17 Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected
with gender-bias. It was in 1971 when the US Supreme Court in Reed v.Reed,18 struck a big blow for
women equality when it declared as unconstitutional an Idaho law that required probate courts to
choose male family members over females as estate administrators. It held that mere administrative
inconvenience cannot justify a sex-based distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the iniquitous common law surrendering the
rights of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on
women's right as they observed: "However, it has been declared that under modern
statutes changing the status of married women and departing from the common law theory of
marriage, there is no reason why a wife may not acquire a separate domicile for every purpose
known to the law."19In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d),
the reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no
longer held. As the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic
common law that demeans women, especially married women. I submit that the Court has no choice
except to break away from this common law rule, the root of the many degradations of Filipino
women. Before 1988, our laws particularly the Civil Code, were full of gender discriminations against
women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as
follows:21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the wife cannot accept gifts from others,
regardless of the sex of the giver or the value of the gift, other than from her very
close relatives, without her husband's consent. She may accept only from, say, her
parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth
civil degree. She may not exercise her profession or occupation or engage in
business if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what constitutes
"serious grounds" for objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being
proposed by the University of the Philippines Law Center would allow absolute
divorce which severes the matrimonial ties, such that the divorced spouses are free
to get married a year after the divorce is decreed by the courts. However, in order to
place the husband and wife on an equal footing insofar as the bases for divorce are
concerned, the following are specified as the grounds for absolute divorce: (1)
adultery or having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent against the
life of the petitioner which amounts to attempted parricide under the Revised Penal
Code; (3) abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically the administrator of

the conjugal property owned in common by the married couple even if the wife may
be the more astute or enterprising partner. The law does not leave it to the spouses
to decide who shall act as such administrator. Consequently, the husband is
authorized to engage in acts and enter into transactions beneficial to the conjugal
partnership. The wife, however, cannot similarly bind the partnership without the
husband's consent.

And while both exercise joint parental authority over their children, it is the father
whom the law designates as the legal administrator of the property pertaining to the
unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to
eliminate inequality between men and women in our land. The watershed came on August 3,
 1988 when our Family Code took effect which, among others, terminated the unequal
treatment of husband and wife as to their rights and responsibilities.22

The Family Code attained this elusive objective by giving new rights to married women and by
abolishing sex-based privileges of husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute community system or in the system of
conjugal partnership;23 joint parental authority over their minor children, both over their persons as
well as their properties;24 joint responsibility for the support of the family;25 the right to jointly manage
the household;26 and, the right to object to their husband's exercise of profession, occupation,
business or activity.27 Of particular relevance to the case at bench is Article 69 of the Family Code
which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of the
family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband
and wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals
specified the instances when a wife may now refuse to live with her husband, thus:28

(2) The wife has the duty to live with her husband, but she may refuse to do so in
certain cases like:

(a) If the place chosen by the husband as family residence is

dangerous to her Life;

(b) If the husband subjects her to maltreatment or abusive conduct or

insults, making common life impossible;

(c) If the husband compels her to live with his parents, but she cannot
get along with her mother-in-law and they have constant quarrels (Del
Rosario v. Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10
years with different women and treated his wife roughly and without
consideration. (Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money
to his family for food and necessities, and at the same time insulting
his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as
a tramp (1 Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn

v. Darby, 38 La. Ann. 70).
 The inescapable conclusion is that our Family Code has completely emancipated the wife
from the control of the husband, thus abandoning the parties' theoretic identity of interest. No
less than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision
Committee of the UP Law Center gave this insightful view in one of his rare lectures after
retirement:29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate
the wife from the exclusive control of the husband and to place her at parity with him
insofar as the family is concerned. The wife and the husband are now placed on
equal standing by the Code. They are now joint administrators of the family
properties and exercise joint authority over the persons and properties of their
children. This means a dual authority in the family. The husband will no longer prevail
over the wife but she has to agree on all matters concerning the family. (Emphasis
supplied)

In light of the Family Code which abrogated the inequality between husband and wife as
started and perpetuated by the common law, there is no reason in espousing the anomalous
rule that the wife still retains the domicile of her dead husband. Article 110 of the Civil Code
which provides the statutory support for this stance has been repealed by Article 69 of the
Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it
by giving it further effect in any way or manner such as by ruling that the petitioner is still
bound by the domiciliary determination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm
guarantees of due process and equal protection of
law.30 It can hardly be doubted that the common law imposition on a married woman of her dead
husband's domicile even beyond his grave is patently discriminatory to women. It is a gender-based
discrimination and is not rationally related to the objective of promoting family solidarity. It cannot
survive a constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987
Constitution is more concerned with equality between sexes as it explicitly commands that the
State ". . . shall ensure fundamental equality before the law of women and men." To be exact,
section 14, Article II provides: "The State recognizes the role of women in nation building, and shall
ensure fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the caveman's
treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner
reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary
consequence of the view that petitioner's Batac dictated domicile did not continue after her
husband's death; otherwise, she would have no domicile and that will violate the universal rule that
no person can be without a domicile at any point of time. This stance also restores the right of
petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again her Tacloban domicile before she
could be released from her Batac domicile. She lost her Tacloban domicile not through her act but
through the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead
and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has
been repealed. Considering all these, common law should not put the burden on petitioner to prove
she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-
based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to
reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her
affidavit submitted to the respondent COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests
for my return were denied by President Corazon C. Aquino, and after I filed suits for
our Government to issue me my passport.

37. But I came home without the mortal remains of my beloved husband, President
Ferdinand E. Marcos, which the Government considered a threat to the national
security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not livable
as they had been destroyed and cannibalized. The PCGG, however, did not permit
and allow me.

39. As a consequence, I had to live at various times in the Westin Philippine Plaza in
Pasay City, a friend's apartment on Ayala Avenue, a house in South Forbes Park
which my daughter rented, and Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residence of my
brother in San Jose, Tacloban City, and pursued my negotiations with PCGG to
recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa,
Leyte.

40.1 In preparation for my observance of All Saints' Day and All

Souls' Day that year, I renovated my parents' burial grounds and
entombed their bones which had been excalvated, unearthed and
scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol

Gunigundo for permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse

in Olot, Leyte . . . to make them livable for us the Marcos family to
have a home in our own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his
letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to
repair and renovate my Leyte residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission,

that she intends to visit our sequestered properties in Leyte, please
allow her access thereto. She may also cause repairs and renovation
 of the sequestered properties, in which event, it shall be understood
that her undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her account
and not reimbursable. Please extend the necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my
residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and
live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte.
It is not disputed that in 1992, she first lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is
nil. He presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors
of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in
said barangay was six (6) months as of the date of her filing of said Voter's Registration Record on
January 28, 1995.31 This statement in petitioner's Voter's Registration Record is a non-prejudicial
admission. The Constitution requires at least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did
not disprovethat she has also resided in Tacloban City starting 1992. As aforestated, Olot and
Tacloban City are both within the First District of Leyte, hence, her six (6) months residence in Olot
should be counted not against, but in her favor. Private respondent also presented petitioner's
Certificate of Candidacy filed on March 8, 199532 where she placed seven (7) months after Item No. 8
which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected
Certificate of Candidacy,33 petitioner wrote "since childhood" after Item No. 8. The amendment of a
certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a matter of
course and as a matter of right. As we held in Alialy v. COMELEC,34 viz.:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in the original
certificate of candidacy presented before the deadline September 11, 1959, did not
render the certificate invalid. The amendment of the certificate, although at a date
after the deadline, but before the election, was substantial compliance with the law,
and the defect was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8,
1995 cannot be used as evidence against her. Private respondent's petition for the
disqualification of petitioner rested alone on these two (2) brittle pieces of documentary
 evidence — petitioner's Voter's Registration Record and her original Certificate of
Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts
with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny her the right to represent the people of the First District
of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public
office shall be free from any form of harassment and discrimination."35 A detached reading of the
records of the case at bench will show that all forms of legal and extra-legal obstacles have been
thrown against petitioner to prevent her from running as the people's representative in the First
District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition
is devious. When respondent (petitioner herein) announced that she was intending to
register as a voter in Tacloban City and run for Congress in the First District of Leyte,
petitioner (Montejo) immediately opposed her intended registration by writing a letter
stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte."
(Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein)
had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer
the town of Tolosa from the First District to the Second District and pursued such
move up to the Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to remove the town of
Tolosa out of the First District and to make it a part of the new district, to achieve his
purpose. However, such bill did not pass the Senate. Having, failed on such moves,
petitioner now filed the instant petition, for the same objective, as it is obvious that he
is afraid to submit himself along with respondent (petitioner herein) for the judgment
and verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion,37 held:

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election Officer of Tacloban City not to allow
respondent (petitioner herein) to register thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of this move of the petitioner (Montejo) is not
lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative
Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . .
Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the Second District
of Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of
Leyte, opposed the move of the petitioner (Montejo). Under Comelec Resolution No.
2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of
 Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1,
1995. Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme
Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No. 118702)
questioning the resolution of the Commission. Believing that he could get a favorable
ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she will be
forced to run as Representative not in the First but in the Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously
promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the
dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it

transferred the municipality of Capoocan of the Second District and
the municipality of Palompon of the Fourth District to the Third District
of the province of Leyte, is annulled and set aside. We also deny the
Petition praying for the transfer of the municipality of Tolosa from the
First District to the Second District of the province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was
constrained to register in the Municipality of Tolosa where her house is instead of
Tacloban City, her domicile. In any case, both Tacloban City and Tolosa are in the
First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rank harassments
and invidious discriminations against petitioner to deny her equal access to a public office.
We cannot commit any hermeneutic violence to the Constitution by torturing the meaning of
equality, the end result of which will allow the harassment and discrimination of petitioner
who has lived a controversial life, a past of alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and
the worst way to interpret the Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v. Vera,38 we explained that the reason for this residence requirement is "to exclude
a stranger or newcomer, unacquainted, with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community . . . ." Petitioner's lifetime
contacts with the First District of Leyte cannot be contested. Nobody can claim that she is not
acquainted with its problems because she is a stranger to the place. None can argue she cannot
satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of
the electorate. The election results show that petitioner received Seventy Thousand Four Hundred
Seventy-one (70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred
Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the electorate of the
First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on
highly arguable technical considerations. In case of doubt, we should lean towards a rule that will
give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality
of status between women and men by rejecting the iniquitous common law precedents on the
domicile of married women and by redefining domicile in accord with our own culture, law, and
Constitution. To rule that a married woman is eternally tethered to the domicile dictated by her dead
husband is to preserve the anachronistic and anomalous balance of advantage of a husband over
his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce
us to shout long live the dead! The Family Code buried this gender-based discrimination against
married women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of
Representative of the First Congressional District of Leyte. I wish, however, to express a few
comments on the issue of petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present
intention of removing therefrom, and that place is properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a
present intention of making it his permanent home (28 C.J.S. §1). It denotes a fixed permanent
residence to which when absent for business, or pleasure, or for like reasons one intends to return,
and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v.
Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every
individual a domicile of origin, which is the domicile of his parents, or of the head of his family, or of
the person on whom he is legally dependent at the time of his birth. While the domicile of origin is
generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. §5). Domicile of
choice, on the other hand, is the place which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or foundation the intention of the person (28
C.J.S. §6). In order to hold that a person has abandoned his domicile and acquired a new one called
domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in
the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon the
old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408,
415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S.
§7).

In election law, when our Constitution speaks of residence for election purposes it means domicile
(Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52
Phil. 645, 651). To my mind, public respondent Commission on Elections misapplied this concept, of
domicile which led to petitioner's disqualification by ruling that petitioner failed to comply with the
constitutionally mandated one-year residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In
several decisions, though, the Court has laid down the rule that registration of a voter in a place
other than his place of origin is not sufficient to constitute abandonment or loss of such residence
(Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent reason to depart
from this rule except to surmise petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to
her marriage, a domicile by operation of law. The proposition is that upon the death of her husband
in 1989 she retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual
change thereof. I find this proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By
legal fiction she followed the domicile of her husband. In my view, the reason for the law is for the
spouses to fully and effectively perform their marital duties and obligations to one another.1 The
question of domicile, however, is not affected by the fact that it was the legal or moral duty of the
individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital domicile
so long as the marriage subsists, she automatically loses it upon the latter's termination, for the
reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the
death of her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any meaningful
purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her
husband's death without even signifying her intention to that effect. It is for the private respondent to
prove, not for petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for
Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party (herein private
respondent) claiming that a person has abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S.
§16), because the presumption is strongly in favor of an original or former domicile, as against an
acquired one (28 C.J.S. §16). Private respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a
new domicile to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with the constitutional one-
year residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside
in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered
her residential house and other properties forbade her necessitating her transient stay in various
places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position
of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her residence certificate2 and resided with her
brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was
allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte
(Annex I, p. 6).3 It was in the same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa,
Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to
use as the reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein
until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that
both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it
indubitably stands that she had more than a year of residence in the constituency she sought to be
elected. Petitioner, therefore, has satisfactorily complied with the one-year qualification required by
the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified
from running for Representative of her District and that, in the event that she should, nevertheless,
muster a majority vote, her proclamation should be suspended. Not by a straightforward ruling did
the COMELEC pronounce its decision as has been its unvarying practice in the past, but by a
startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its Second Division disqualifying her and canceling
her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the
COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election;
then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results
of the canvass should show that she obtained the highest number of votes (obviously noting that
petitioner had won overwhelmingly over her opponent), but almost simultaneously reversing itself by
directing that even if she wins, her proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the
interpretation to be given to the one-year residency requirement imposed by the Constitution on
aspirants for a Congressional seat.1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election
purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte
and if so, whether she had resided there for at least a period of one year. Undisputed is her domicile
of origin, Tacloban, where her parents lived at the time of her birth. Depending on what theory one
adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled
in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation to
live with him at the residence fixed by him during his lifetime. What may confuse the layman at this
point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or
"domicile by operation of law," which subject we shall not belabor since it has been amply discussed
by the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the
husband's death on the domicile of the widow. Some scholars opine that the widow's domicile
remains unchanged; that the deceased husband's wishes perforce still bind the wife he has left
behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or
domicile of the family, as laid down in the Civil Code,2 but to continue giving obeisance to his wishes
even after the rationale underlying the mutual duty of the spouses to live together has ceased, is to
close one's eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin
upon the demise of her husband. Does the law so abhor a vacuum that the widow has to be
endowed somehow with a domicile? To answer this question which is far from rhetorical, one will
have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one
must have only a single domicile for the same purpose at any given time. Once established, a
domicile remains until a new one is acquired, for no person lives who has no domicile, as defined by
the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more
murky by the conflicting opinions of foreign legal authorities. This being the state of things, it is
imperative as it is opportune to illumine the darkness with the beacon light of truth, as dictated by
experience and the necessity of according petitioner her right to choose her domicile in keeping with
the enlightened global trend to recognize and protect the human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights
are concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It
is a historical fact that for over three centuries, the Philippines had been colonized by Spain, a
conservative, Catholic country which transplanted to our shores the Old World cultures, mores and
attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889,
the people, both men and women, had no choice but to accept such concepts as the husband's
being the head of the family and the wife's subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many instances come to mind, foremost being what is
related to the issue before us, namely, that "the husband shall fix the residence of the
family." 3 Because he is made responsible for the support of the wife and the rest of the family, 4 he is
also empowered to be the administrator of the conjugal property, with a few exceptions 5 and may,
therefore, dispose of the conjugal partnership property for the purposes specified under the
law;6 whereas, as a general rule, the wife cannot bind the conjugal partnership without the
husband's consent.7 As regards the property pertaining to the children under parental
authority, the father is the legal administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are certain strictures on her personal
freedoms, practically relegating her to the position of minors and disabled persons. To
illustrate a few: The wife cannot, without the husband's consent, acquire any gratuitous title,
except from her ascendants, descendants, parents-in-law, and collateral relatives within the
fourth degree.9 With respect to her employment, the husband wields a veto power in the case
the wife exercises her profession or occupation or engages in business, provided his income
is sufficient for the family, according to its social standing and his opposition is founded on
serious and valid grounds. 10 Most offensive, if not repulsive, to the liberal-minded is the
effective prohibition upon a widow to get married till after three hundred days following the
death of her husband, unless in the meantime, she has given birth to a child. 11 The mother
who contracts a subsequent marriage loses the parental authority over her children, unless
the deceased husband, father of the latter, has expressly provided in his will that his widow
might marry again, and has ordered that in such case she should keep and exercise parental
authority over their children. 12 Again, an instance of a husband's overarching influence from
beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked
no protest from them until the concept of human rights and equality between and among
nations and individuals found hospitable lodgment in the United Nations Charter of which the
Philippines was one of the original signatories. By then, the Spanish "conquistadores" had
been overthrown by the American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and women."
(Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to
the burgeoning of the feminist movement. What may be regarded as the international
bill of rights for women was implanted in the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General
Assembly which entered into force as an international treaty on September 3, 1981. In
ratifying the instrument, the Philippines bound itself to implement its liberating spirit
and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
 all nations." 13 One such principle embodied in the CEDAW is granting to men and
women "the same rights with regard to the law relating to the movement of persons
and the freedom to choose their residence and domicile." 14(Emphasis supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the
1987 Constitution of the Philippines and later, in the Family Code, 15 both of which were
speedily approved by the first lady President of the country, Corazon C. Aquino. Notable for
its emphasis on the human rights of all individuals and its bias for equality between the
sexes are the following provisions: "The State values the dignity of every human person and
guarantees full respect for human rights"16 and "The State recognizes the role of women in
nation-building, and shall ensure the fundamental equality before the law of women and
men."17

A major accomplishment of women in their quest for equality with men and the elimination of
discriminatory provisions of law was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now given the right jointly to fix the family
domicile;18 concomitant to the spouses' being jointly responsible for the support of the family is the
right and duty of both spouses to manage the household;19 the administration and the enjoyment of
the community property shall belong to both spouses jointly;20 the father and mother shall now jointly
exercise legal guardianship over the property of their unemancipated common child21 and several
others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned,
Congress passed a law popularly known as "Women in Development and Nation Building
Act"22 Among the rights given to married women evidencing their capacity to act in contracts equal to
that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit
arrangements under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting
agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian
reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure
visas and other travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court
now be the first to respond to its clarion call that "Women's Rights are Human Rights" and that "All
obstacles to women's full participation in decision-making at all levels, including the family" should be
removed. Having been herself a Member of the Philippine Delegation to the International Women's
Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle
being waged by women the world over, Filipino women not excluded, to be accepted as equals of
men and to tear down the walls of discrimination that hold them back from their proper places under
the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial,
according more rights to women hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it still be insisted that widows are not
at liberty to choose their domicile upon the death of their husbands but must retain the same,
regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was before. Neither does she automatically revert to
her domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In
returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the
First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of
choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up
her domicile in the two places sufficed to meet the one-year requirement to run as Representative of
the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals
and directions and render steady our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A compliant transience of a constitution belittles its basic function and
weakens its goals. A constitution may well become outdated by the realities of time. When it does, it
must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle,
has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either by express

statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121
SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the
fundamental law. These provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unless he is a

natural-born citizen of the Philippines and, on the day of the election, is at least
twenty-five years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately preceding the day
of the election.

Sec. 17. 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.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer
"all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its authority to pass upon the qualification
and disqualification prescribed by law of candidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-year residency
requirement. The issue (whether or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination. The findings and judgment of
the COMELEC, in accordance with the long established rule and subject only to a number of
exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.

I do not find much need to do a complex exercise on what seems to me to be a plain matter.
Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to stay)
or temporary (the place where he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the
domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by this Court in Romualdez
vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:

In election cases, the Court treats domicile and residence as synonymous terms,
thus: "(t)he term "residence" as used in the election law is synonymous with
"domicile," which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in turn, to
acquire a new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the new domicile must
be actual.

Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate or the House of Representatives.
The question can be asked on whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the number of votes cast in an election
exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment on the
ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns
and qualification" of its members.

Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:

REPUBLIC ACT NO. 6646

xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority. — The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before the
election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any
reason, a candidate is not declared by final, judgment before an election to be
disqualified, and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.

I realize that in considering the significance of the law, it may be preferable to look for not so much
the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will
not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified
candidate, whenever ultimately declared as such, should not be counted in his or her favor and must
accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201
SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994])
rulings. Benito vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in
by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo,
Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:
 Finally, there is the question of whether or not the private respondent, who filed
the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections,
(137 SCRA 740) decided in 1985. In that case, the candidate who placed second
was proclaimed elected after the votes for his winning rival, who was disqualified as
a turncoat and considered a non-candidate, were all disregard as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova,
De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave.
(Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents
the more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten
members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote, (Makasiar, J.)
another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and
Concepcion, Jr., J.) There the Court held:

. . . it would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not
choose him.

Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the office to which they seek to be elected. I
think that it has none and that the qualifications of candidates may be questioned only in the event
they are elected, by filing a petition for quo warranto or an election protest in the appropriate forum,
not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral
Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no
moment. Such proceedings were unauthorized and were not rendered valid by their agreement to
submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a
candidate's qualifications for an office before his election. There are none in the Omnibus Election
Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing
for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo warrantoproceedings against winning
candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity
(due to insanity, incompetence or conviction of an offense) of a person either to be a candidate or to
continue as a candidate for public office. There is also a provision for the denial or cancellation of
certificates of candidacy, but it applies only to cases involving false representations as to certain
matters required by law to be stated in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been sentenced to a
penalty of more than eighteen months or for a crime involving moral turpitude, shall
be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed

upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified. (Emphasis
added)

§ 68. Disqualifications. — Any candidate who, in an 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 of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
 immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Emphasis added)

§ 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. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added).

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The

procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg.
881.

and the Local Government Code of 1991 (R.A. No. 7160):

§ 40. Disqualifications. — The following persons are disqualified from running for any
elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code;
and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no allegation that private respondent Imelda
Romualdez-Marcos made material representations in her certificate of candidacy which were false, it
sought her disqualification on the ground that "on the basis of her Voter Registration Record and
Certificate of Candidacy, [she] is disqualified from running for the position of Representative,
considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in
the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position of Member
of the House of Representatives for the First Legislative District of Leyte" and not because of any
finding that she had made false representations as to material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of
candidacy under § 78 of the Omnibus Election Code, but essentially a petition to declare private
respondent ineligible. It is important to note this, because, as will presently be explained,
proceedings under § 78 have for their purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to disqualify a person from holding public
office. Jurisdiction over quo warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of
candidacy, the allegations were that the respondent candidates had made false representations in
their certificates of candidacy with regard to their citizenship,1 age,2 or residence.3 But in the
generality of cases in which this Court passed upon the qualifications of respondents for office, this
Court did so in the context of election protests4 or quo warrantoproceedings5 filed after the
proclamation of the respondents or protestees as winners.

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.6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. 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 of 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.7 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 or of the President and Vice
President, as the case may be.

By providing in § 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously silent about a
pre-proclamation remedy based on the same ground, the Omnibus Election Code, or OEC, by its
silence underscores the policy of not authorizing any inquiry into the qualifications of candidates
unless they have been elected.

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 rulemaking power under Art. IX, A, § 6 of the
Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even the
power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, § 2(3))

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
disqualifications provided in § 4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited
election practices or offenses, like other pre-proclamation remedies, are aimed at the detestable
practice of "grabbing the proclamation and prolonging the election protest,"8 through the use of
"manufactured" election returns or resort to other trickery for the purpose of altering the results of the
election. This rationale does not apply to cases for determining a candidate's qualifications for office
before the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented from assuming
office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest
or action for quo warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after
his proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of
the Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the
Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of the Constitution.
In the case of the President and Vice President, the petition must be filed with the Presidential
Electoral Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral
Tribunal. (Art. VI, § 17) There is greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the case of candidates for President,
Vice President, Senators and members of the House of Representatives, because of the same
policy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its questioned orders, are void; and that the eligibility of
petitioner Imelda Romualdez-Marcos for the office of Representative of the First District of Leyte
may only be inquired into by the HRET.

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

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice
Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with
the provision itself. The controversy should not be blurred by what, to me, are academic
disquisitions. In this particular controversy, the Constitutional provision on point states that — "no
person shall be a member of the House of Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and
write, and except the party list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood
as synonymous with domicile. This argument has been validated by no less than the Court in
numerous cases1 where significantly the factual circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if the intention to reside therein is manifest with
his personal presence in the place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within which
the phrase "a resident thereof (meaning, the legislative district) for a period of not less than one
year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only
has to prove that he has been domiciled in a permanent location for not less than a year before the
election.

A second situation is where a person maintains a residence apart from his domicile in which case he
would have the luxury of district shopping, provided of course, he satisfies the one-year residence
period in the district as the minimum period for eligibility to the position of congressional
representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of choice; neither would one be disqualified for
abandoning altogether his domicile in favor of his residence in the district where he desires to be a
candidate.

The most extreme circumstance would be a situation wherein a person maintains several residences
in different districts. Since his domicile of origin continues as an option as long as there is no
effective abandonment (animus non revertendi), he can practically choose the district most
advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a
period of not less than one year immediately preceding the day of the election", he must be a
resident in the district where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term
"residence" is to be synonymous with "domicile." In other words, the candidate's intent and actual
presence in one district must in allsituations satisfy the length of time prescribed by the fundamental
law. And this, because of a definite Constitutional purpose. He must be familiar with the environment
and problems of a district he intends to represent in Congress and the one-year residence in said
district would be the minimum period to acquire such familiarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now
assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en
banc) —

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 1948 when she graduated from high school. She pursued
her college studies in St. Paul's College, now Divine Word University of Tacloban,
where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese High 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 Marcos when he was
still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and
registered there as a voter. When her husband was elected Senator of the Republic
in 1959, she and her husband lived together in San Juan, Rizal where she registered
as a voter. In 1965 when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a voter in
San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila. She
claimed that in February 1986, 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. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent
List of Voters in Precinct No. 157 of San Juan, Metro Manila, in order that she may
be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On
August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter
in 157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot,
Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot,
Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter
Registration Record No. 94-3349772, wherein she alleged that she has resided in
the municipality of Tolosa for a period of 6 months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election
Supervisor, Leyte, a Certificate of Candidacy for the position of Representative of the
First District of Leyte wherein she also alleged that she has been a resident in the
constituency where she seeks to be elected for a period of 7 months. The pertinent
entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/

Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot,

Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot,

Tolosa, Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN

I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING ELECTION: ________
Years SevenMonths

10. I AM NOT A PERMANENT RESIDENT OF, OR

IMMIGRANT TO, A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution
of the Republic of the Philippines and will maintain true faith and allegiance thereto;
That I will obey the laws, legal orders and decrees promulgated by the duly-
constituted authorities; That the obligation imposed by my oath is assumed
voluntarily, without mental reservation or purpose of evasion; and That the facts
stated herein are true to the best of my knowledge.

(Sgd.) Imelda
Romualdez-Marcos
 (Signature of
Candidate)2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected immediately
preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion in holding that
petitioner is disqualified from the position of representative for the 1st congressional district of Leyte
in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district,
Leyte) immediately preceding the day of election
(8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the
next important issue to resolve is whether or not the Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining qualified candidates for representative in
said district.

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R.
86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case
of Topacio vs. Paredes, 23 Phil. 238 that:

. . . . Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other
purposes) (84 O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to be disqualified

shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may,
during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of
the provision quoted above. As the law now stands, the legislative policy does not limit its concern
with the effect of a final judgement of disqualification only before the election, but even during or
after the election. The law is clear that in all situations, the votes cast for a disqualified candidate
SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission
on Election to continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final judgment before
an election to be disqualified.

Since the present case is an after election scenario, the power to suspend proclamation (when
evidence of his guilt is strong) is also explicit under the law. What happens then when after the
elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and
in legal contemplation, he no longer received the highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply
because a "winning candidate is disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes cast for the disqualified candidate
not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court
should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been
stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most
especially when it is mandated by no less than the Constitution.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of
Leyte to proclaim the candidate receiving the highest number of votes, from among the qualified
candidates, as the duly elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the
same conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the
basis of the personality of a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present
Tacloban City, she being a legitimate daughter of parents who appear to have taken
up permanent residence therein. She also went to school there and, for a time,
taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in
Batac, Ilocos Norte, by operation of law she acquired a new domicile in that place in
1954.

3. In the successive years and during the events that happened thereafter, her
husband having been elected as a Senator and then as President, she lived with him
 and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel,
Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these merely in
the exercise of the right of suffrage.

5. It does not appear that her husband, even after he had assumed those lofty
positions successively, ever abandoned his domicile of origin in Batac, Ilocos Norte
where he maintained his residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the
Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines
in 1991 and resided in different places which she claimed to have been merely
temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her
certificate of candidacy she indicated that she was then a registered voter and
resident of San Juan, Metro Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the
Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that
she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31,
1994, she followed this up with her Sworn Application for Cancellation of Voter's
Previous Registration wherein she stated that she was a registered voter in Precinct
No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot,
Tolosa, Leyte, for which purpose she filed with the therein Board of Election
Inspectors a voter's registration record form alleging that she had resided in that
municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of
Representative of the First District of Leyte wherein she alleged that she had been a
resident for "Seven Months" of the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy"

wherein her answer in the original certificate of candidacy to item "8. RESIDENCE IN
THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new entry reading
"SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with
the residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987
Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on the difference
between residence and domicile. We have had enough of that and I understand that for purposes of
political law and, for that matter of international law, residence is understood to be synonymous with
domicile. That is so understood in our jurisprudence and in American Law, in contradistinction to the
concept of residence for purposes of civil, commercial and procedural laws whenever an issue
thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and
inseparable from her domicile, I am addressing the issue from the standpoint of the concept of the
latter term, specifically its permutations into the domicile of origin, domicile of choice and domicile by
operation of law, as understood in American law from which for this case we have taken our
jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termed the
"domicile of origin," constitutes the domicile of an infant until abandoned, or until the acquisition of a
new domicile in a different place.1 In the instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth,
domicile by choice, and domicile by operation of law. The first is the common case of the place of
birth or domicilium originis, the second is that which is voluntarily acquired by a party or domicilium
propio motu; the last which is consequential, as that of a wife arising from marriage,3 is sometimes
called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced
by a domicile of choice or a domicile by operation of law subsequently acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, 4 she acquired her husband's domicile of origin
in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter
to Honolulu, Hawaii, and back to now San Juan, Metro Manila — do not appear to have resulted in
her thereby acquiring new domiciles of choice. In fact, it appears that her having resided in those
places was by reason of the fortunes or misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them. Her residence in Honolulu and, of course,
those after her return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite
residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to
acquire any other domicile of choice which could have resulted in the abandonment of her legal
domicile in Batac, Ilocos Norte. On that score, we note the majority's own submission 6 that, to
successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual
change of domicile, (b) a bona fide intention of abandoning the former place of residence and
establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of
choice apply whether what is sought to be changed or substituted is a domicile of origin (domicilium
originis) or a domicile by operation of law (domicilium necesarium). Since petitioner had lost
her domicilium originis which had been replaced by her domicilium necesarium, it is therefore her
continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the
contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner
Regalado E. Maambong in SPA 95-009 of the Commission on Elections,7 and advances this novel
proposition.
 It may be said 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 (sic, 1954). By
operation of law (domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no indications of an
intention on her part to abandon her domicile of origin. Because of her husband's
subsequent death and through the operation of the provisions of the New Family
Code already in force at the time, however, her legal domicile automatically reverted
to her domicile of origin. . . . (Emphasis supplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium
necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did not
intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is the law
that declares where petitioner's domicile is at any given time, and not her self-serving or putative
intent to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot
have more than one domicile at a time,8 the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is
fancied as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance
with law. However, we are here being titillated with the possibility of an automatic reversion to or
reacquisition of a domicile of origin after the termination of the cause for its loss by operation of law.
The majority agrees that since petitioner lost her domicile of origin by her marriage, the termination
of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this
theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily
abandons the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does
not per se recover his original domicile unless, by subsequent acts legally indicative thereof, he
evinces his intent and desire to establish the same as his new domicile, which is precisely what
petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile
of origin, not only because there is no legal authority therefor but because it would be absurd
Pursued to its logical consequence, that theory of ipso jure reversion would rule out the fact that said
party could already very well have obtained another domicile, either of choice or by operation of law,
other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which
the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we
assume that she entered into the marital state against her will) but, on top of that, such
abandonment was further affirmed through her acquisition of a new domicile by operation of law. In
fact, this is even a case of both voluntary and legal abandonment of a domicile of origin. With much
more reason, therefore, should we reject the proposition that with the termination of her marriage in
1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she
lost in 1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin which was
only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the
right to elect her own domicile,9 she nevertheless retains the last domicile of her deceased husband
until she makes an actual change. 10 In the absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows that of her husband and will continue
after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68
and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right
and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint
right, which in the first place was never exercised by the spouses, could affect the domicile fixed by
the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has
the coordinate power to determine the conjugal or family domicile, but that has no bearing on this
case. With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no longer
called for or material in the present factual setting of this controversy. Instead, what is of concern in
petitioner's case was the matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation of
women in the affairs of the nation, with equal rights and recognition by Constitution and statutory
conferment. However, I have searched in vain for a specific law or judicial pronouncement which
either expressly or by necessary implication supports the majority's desired theory of automatic
reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference;
and, unquestionably, this should be resolved by legislative articulation but not by the eloquence of
the well-turned phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she cannot legally claim that her residency in the
political constituency of which it is a part continued since her birth up to the present. Respondent
commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original
certificate that she had actually resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further pass upon the procedural issues
raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan,
more particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the special civil action for certiorari under Rule 65 of
the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84
[1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess
of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the
COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the only issue left is
whether it acted with grave abuse of discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC
Second Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of
discretion, much less grave abuse thereof. The resolution of the Second Division dispassionately
and objectively discussed in minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First
Congressional District of Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or
by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin,
which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her
domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was for
only seven months before the day of the election. She was then disqualified to be a candidate for the
position of Representative of the First Congressional District of Leyte. A holding to the contrary
would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or
Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her
marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation
of law is that domicile which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife arising from marriage
(28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte.
Said Article reads as follows:

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.

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband has a
predominant right because he is empowered by law to fix the family residence. This
right even predominates over some rights recognized by law in the wife. For
instance, under article 117 the wife may engage in business or practice a profession
or occupation. But because of the power of the husband to fix the family domicilehe
may fix it at such a place as would make it impossible for the wife to continue in
business or in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The husband cannot
validly allege desertion by the wife who refuses to follow him to a new place of
residence, when it appears that they have lived for years in a suitable home
belonging to the wife, and that his choice of a different home is not made in good
faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1,
1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of law,
acquires that of her husband, no matter where the wife actually lives or what she believes or intends.
Her domicile is fixed in the sense that it is declared to be the same as his, and subject to certain
limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family
domicile is no longer the sole prerogative of the husband, but is now a joint decision of the spouses,
and in case of disagreement the court shall decide. The said article uses the term "family domicile,"
and not family residence, as "the spouses may have multiple residences, and the wife may elect to
remain in one of such residences, which may destroy the duty of the spouses to live together and its
corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by jurisprudence. The settled doctrine is that after the husband's
death the wife has a right to elect her own domicile, but she retains the last domicile of her husband
until she makes an actual change (28 C.J.S. Domicile § 12, 27). Or, on the death of the husband, the
power of the wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note
that what is revived is not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the
time of his death — which was Batac, Ilocos Norte, since their residences in San Juan, Metro
Manila, and San Miguel, Manila, were their residences for convenience to enable her husband to
effectively perform his official duties. Their residence in San Juan was a conjugal home, and it was
there to which she returned in 1991 when she was already a widow. In her sworn certificate of
candidacy for the Office of the President in the synchronized elections of May 1992, she indicated
therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a
widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the
Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list of voters
in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy. Olot, Tolosa,
Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as
Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn
statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28
January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy
sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly
declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In
the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she
declared under oath that her "domicile or residence is Tacloban City." If she did intend to return to
such domicile or residence of origin why did she inform the Election Officer of San Juan that she
would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her
certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not
important insofar as residence in the congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue
of marriage and that such length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294
[1954]), and the subsequent cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice one's profession, or engage in business in
other states does not constitute loss of such residence or domicile. So is the reliance on Section 117
of the Omnibus Election Code which provides that transfer of residence to any other place by reason
of one's "occupation; profession; employment in private and public service; educational activities;
work in military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in accordance with law"
is not deemed as loss of original residence. Those cases and legal provision do not include marriage
of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the
intention of this Court or of the legislature to consider the marriage of a woman as a circumstance
which would not operate as an abandonment of domicile (of origin or of choice), then such cases
and legal provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit
(Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or
residence of origin is Tacloban City," and that she "never intended to abandon this domicile or
residence of origin to which [she] always intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and had acquired a new one animo
et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely committed
an honest mistake" in writing down the word "seven" in the space provided for the residency
qualification requirement in the certificate of candidacy. Such a claim is self-serving and, in the light
of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she stated was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200
SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises
her revived power to acquire her own domicile, the burden is upon her to prove that she has
exercised her right to acquire her own domicile. She miserably failed to discharge that burden.

I vote to deny the petition.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things
that are unalike should be treated unalike in proportion to their unalikeness.1 Like other candidates,
petitioner has clearly met the residence requirement provided by Section 6, Article VI of the
Constitution.2 We cannot disqualify her and treat her unalike, for the Constitution guarantees equal
protection of the law. I proceed from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I consider Tacloban as her initial domicile,
both her domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of
her parents when she was a minor; and her domicile of choice, as she continued living there even
after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand
E. Marcos. By contracting marriage, her domicile became subject to change by law, and the right to
change it was given by Article 110 of the Civil Code 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.3 (Emphasis supplied)

In De la Viña v. Villareal and Geopano,4 this Court explained why the domicile of the wife
ought to follow that of the husband. We held: "The reason is founded upon the theoretic
identity of person and interest between the husband and the wife, and the presumption that,
from the nature of the relation, the home of one is the home of the other. It is intended to
promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where
union and harmony prevail."5 In accord with this objective, Article 109 of the Civil Code also
obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to former President
Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her
marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code
merely gave the husband the right to fix the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile
remains unchanged. The husband can also implicitly acquiesce to his wife's prior domicile even if it
is different. So we held in de la Viña,6

. . . . When married women as well as children subject to parental authority live, with
the acquiescence of their husbands or fathers, in a place distinct from where the
latter live, they have their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile
by the husband that will change the domicile of a wife from what it was prior to their
marriage. The domiciliary decision made by the husband in the exercise of the right
conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the husband cannot change in any way the
domicile legally fixed by the husband. These acts are void not only because the wife lacks
the capacity to choose her domicile but also because they are contrary to law and public
policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the
family domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At
that particular point of time and throughout their married life, petitioner lost her domicile in Tacloban,
Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not affected in
1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she
registered as a voter. It was not also affected in 1965 when her husband was elected President,
when they lived in Malacañang Palace, and when she registered as a voter in San Miguel, Manila.
Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency of her husband as President of
the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any such change. To a large degree, this
follows the common law that "a woman on her marriage loses her own domicile and by operation of
law, acquires that of her husband, no matter where the wife actually lives or what she believes or
intends."7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of
former President Marcos on petitioner's Batac domicile. The issue is of first impression in our
jurisdiction and two (2) schools of thought contend for acceptance. One is espoused by our
distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American authorities.8 He echoes
the theory that after the husband's death, the wife retains the last domicile of her husband until she
makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead
husband's domicile is based on ancient common law which we can no longer apply in the Philippine
setting today. The common law identified the domicile of a wife as that of the husband and denied to
her the power of acquiring a domicile of her own separate and apart from him.9 Legal scholars agree
that two (2) reasons support this common law doctrine. The first reason as pinpointed by the
legendary Blackstone is derived from the view that "the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and consolidated into that of the husband."10 The second
reason lies in "the desirability of having the interests of each member of the family unit governed by
the same law."11 The presumption that the wife retains the domicile of her deceased husband is
an extension of this common law concept. The concept and its extension have provided some of the
most iniquitous jurisprudence against women. It was under common law that the 1873 American
case of Bradwell v. Illinois 12 was decided where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex
evidently unfits it for many of the occupations of civil life . . . This is the law of the Creator." Indeed,
the rulings relied upon by Mr. Justice Davide in CJS 13 and AM JUR 2d14 are American state court
decisions handed down between the years 191715 and 1938,16 or before the time when women were
accorded equality of rights with men. Undeniably, the women's liberation movement resulted in far-
ranging state legislations in the United States to eliminate gender inequality.17 Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected
with gender-bias. It was in 1971 when the US Supreme Court in Reed v.Reed,18 struck a big blow for
women equality when it declared as unconstitutional an Idaho law that required probate courts to
choose male family members over females as estate administrators. It held that mere administrative
inconvenience cannot justify a sex-based distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the iniquitous common law surrendering the
rights of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on
women's right as they observed: "However, it has been declared that under modern
statutes changing the status of married women and departing from the common law theory of
marriage, there is no reason why a wife may not acquire a separate domicile for every purpose
known to the law."19In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d),
the reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no
longer held. As the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic
common law that demeans women, especially married women. I submit that the Court has no choice
except to break away from this common law rule, the root of the many degradations of Filipino
women. Before 1988, our laws particularly the Civil Code, were full of gender discriminations against
women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as
follows:21

xxx xxx xxx

 Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the wife cannot accept gifts from others,
regardless of the sex of the giver or the value of the gift, other than from her very
close relatives, without her husband's consent. She may accept only from, say, her
parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth
civil degree. She may not exercise her profession or occupation or engage in
business if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what constitutes
"serious grounds" for objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being
proposed by the University of the Philippines Law Center would allow absolute
divorce which severes the matrimonial ties, such that the divorced spouses are free
to get married a year after the divorce is decreed by the courts. However, in order to
place the husband and wife on an equal footing insofar as the bases for divorce are
concerned, the following are specified as the grounds for absolute divorce: (1)
adultery or having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent against the
life of the petitioner which amounts to attempted parricide under the Revised Penal
Code; (3) abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically the administrator of

the conjugal property owned in common by the married couple even if the wife may
be the more astute or enterprising partner. The law does not leave it to the spouses
to decide who shall act as such administrator. Consequently, the husband is
authorized to engage in acts and enter into transactions beneficial to the conjugal
partnership. The wife, however, cannot similarly bind the partnership without the
husband's consent.

And while both exercise joint parental authority over their children, it is the father
whom the law designates as the legal administrator of the property pertaining to the
unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to
eliminate inequality between men and women in our land. The watershed came on August 3,
1988 when our Family Code took effect which, among others, terminated the unequal
treatment of husband and wife as to their rights and responsibilities.22

The Family Code attained this elusive objective by giving new rights to married women and by
abolishing sex-based privileges of husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute community system or in the system of
conjugal partnership;23 joint parental authority over their minor children, both over their persons as
well as their properties;24 joint responsibility for the support of the family;25 the right to jointly manage
the household;26 and, the right to object to their husband's exercise of profession, occupation,
business or activity.27 Of particular relevance to the case at bench is Article 69 of the Family Code
which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:
 Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of the
family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband
and wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals
specified the instances when a wife may now refuse to live with her husband, thus:28

(2) The wife has the duty to live with her husband, but she may refuse to do so in
certain cases like:

(a) If the place chosen by the husband as family residence is

dangerous to her Life;

(b) If the husband subjects her to maltreatment or abusive conduct or

insults, making common life impossible;

(c) If the husband compels her to live with his parents, but she cannot
get along with her mother-in-law and they have constant quarrels (Del
Rosario v. Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10
years with different women and treated his wife roughly and without
consideration. (Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money
to his family for food and necessities, and at the same time insulting
his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as
a tramp (1 Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn

v. Darby, 38 La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated the wife
from the control of the husband, thus abandoning the parties' theoretic identity of interest. No
less than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision
Committee of the UP Law Center gave this insightful view in one of his rare lectures after
retirement:29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate
the wife from the exclusive control of the husband and to place her at parity with him
insofar as the family is concerned. The wife and the husband are now placed on
equal standing by the Code. They are now joint administrators of the family
 properties and exercise joint authority over the persons and properties of their
children. This means a dual authority in the family. The husband will no longer prevail
over the wife but she has to agree on all matters concerning the family. (Emphasis
supplied)

In light of the Family Code which abrogated the inequality between husband and wife as
started and perpetuated by the common law, there is no reason in espousing the anomalous
rule that the wife still retains the domicile of her dead husband. Article 110 of the Civil Code
which provides the statutory support for this stance has been repealed by Article 69 of the
Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it
by giving it further effect in any way or manner such as by ruling that the petitioner is still
bound by the domiciliary determination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm
guarantees of due process and equal protection of
law.30 It can hardly be doubted that the common law imposition on a married woman of her dead
husband's domicile even beyond his grave is patently discriminatory to women. It is a gender-based
discrimination and is not rationally related to the objective of promoting family solidarity. It cannot
survive a constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987
Constitution is more concerned with equality between sexes as it explicitly commands that the
State ". . . shall ensure fundamental equality before the law of women and men." To be exact,
section 14, Article II provides: "The State recognizes the role of women in nation building, and shall
ensure fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the caveman's
treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner
reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary
consequence of the view that petitioner's Batac dictated domicile did not continue after her
husband's death; otherwise, she would have no domicile and that will violate the universal rule that
no person can be without a domicile at any point of time. This stance also restores the right of
petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again her Tacloban domicile before she
could be released from her Batac domicile. She lost her Tacloban domicile not through her act but
through the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead
and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has
been repealed. Considering all these, common law should not put the burden on petitioner to prove
she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-
based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose to
reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her
affidavit submitted to the respondent COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests
for my return were denied by President Corazon C. Aquino, and after I filed suits for
our Government to issue me my passport.
37. But I came home without the mortal remains of my beloved husband, President
Ferdinand E. Marcos, which the Government considered a threat to the national
security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not livable
as they had been destroyed and cannibalized. The PCGG, however, did not permit
and allow me.

39. As a consequence, I had to live at various times in the Westin Philippine Plaza in
Pasay City, a friend's apartment on Ayala Avenue, a house in South Forbes Park
which my daughter rented, and Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residence of my
brother in San Jose, Tacloban City, and pursued my negotiations with PCGG to
recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa,
Leyte.

40.1 In preparation for my observance of All Saints' Day and All

Souls' Day that year, I renovated my parents' burial grounds and
entombed their bones which had been excalvated, unearthed and
scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol

Gunigundo for permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse

in Olot, Leyte . . . to make them livable for us the Marcos family to
have a home in our own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his
letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to
repair and renovate my Leyte residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission,

that she intends to visit our sequestered properties in Leyte, please
allow her access thereto. She may also cause repairs and renovation
of the sequestered properties, in which event, it shall be understood
that her undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her account
and not reimbursable. Please extend the necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my
 residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and
live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte.
It is not disputed that in 1992, she first lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is
nil. He presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors
of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in
said barangay was six (6) months as of the date of her filing of said Voter's Registration Record on
January 28, 1995.31 This statement in petitioner's Voter's Registration Record is a non-prejudicial
admission. The Constitution requires at least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did
not disprovethat she has also resided in Tacloban City starting 1992. As aforestated, Olot and
Tacloban City are both within the First District of Leyte, hence, her six (6) months residence in Olot
should be counted not against, but in her favor. Private respondent also presented petitioner's
Certificate of Candidacy filed on March 8, 199532 where she placed seven (7) months after Item No. 8
which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected
Certificate of Candidacy,33 petitioner wrote "since childhood" after Item No. 8. The amendment of a
certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a matter of
course and as a matter of right. As we held in Alialy v. COMELEC,34 viz.:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in the original
certificate of candidacy presented before the deadline September 11, 1959, did not
render the certificate invalid. The amendment of the certificate, although at a date
after the deadline, but before the election, was substantial compliance with the law,
and the defect was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8,
1995 cannot be used as evidence against her. Private respondent's petition for the
disqualification of petitioner rested alone on these two (2) brittle pieces of documentary
evidence — petitioner's Voter's Registration Record and her original Certificate of
Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts
with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to
disqualify petitioner, more so, to deny her the right to represent the people of the First District
of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public
office shall be free from any form of harassment and discrimination."35 A detached reading of the
records of the case at bench will show that all forms of legal and extra-legal obstacles have been
thrown against petitioner to prevent her from running as the people's representative in the First
District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition
is devious. When respondent (petitioner herein) announced that she was intending to
register as a voter in Tacloban City and run for Congress in the First District of Leyte,
petitioner (Montejo) immediately opposed her intended registration by writing a letter
stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte."
(Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein)
had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer
the town of Tolosa from the First District to the Second District and pursued such
move up to the Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to remove the town of
Tolosa out of the First District and to make it a part of the new district, to achieve his
purpose. However, such bill did not pass the Senate. Having, failed on such moves,
petitioner now filed the instant petition, for the same objective, as it is obvious that he
is afraid to submit himself along with respondent (petitioner herein) for the judgment
and verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion,37 held:

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election Officer of Tacloban City not to allow
respondent (petitioner herein) to register thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of this move of the petitioner (Montejo) is not
lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative
Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . .
Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the Second District
of Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of
Leyte, opposed the move of the petitioner (Montejo). Under Comelec Resolution No.
2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of
Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1,
1995. Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme
Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No. 118702)
questioning the resolution of the Commission. Believing that he could get a favorable
ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she will be
forced to run as Representative not in the First but in the Second District.
 It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously
promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the
dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it

transferred the municipality of Capoocan of the Second District and
the municipality of Palompon of the Fourth District to the Third District
of the province of Leyte, is annulled and set aside. We also deny the
Petition praying for the transfer of the municipality of Tolosa from the
First District to the Second District of the province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was
constrained to register in the Municipality of Tolosa where her house is instead of
Tacloban City, her domicile. In any case, both Tacloban City and Tolosa are in the
First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rank harassments
and invidious discriminations against petitioner to deny her equal access to a public office.
We cannot commit any hermeneutic violence to the Constitution by torturing the meaning of
equality, the end result of which will allow the harassment and discrimination of petitioner
who has lived a controversial life, a past of alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and
the worst way to interpret the Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v. Vera,38 we explained that the reason for this residence requirement is "to exclude
a stranger or newcomer, unacquainted, with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community . . . ." Petitioner's lifetime
contacts with the First District of Leyte cannot be contested. Nobody can claim that she is not
acquainted with its problems because she is a stranger to the place. None can argue she cannot
satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of
the electorate. The election results show that petitioner received Seventy Thousand Four Hundred
Seventy-one (70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred
Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the electorate of the
First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on
highly arguable technical considerations. In case of doubt, we should lean towards a rule that will
give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality
of status between women and men by rejecting the iniquitous common law precedents on the
domicile of married women and by redefining domicile in accord with our own culture, law, and
Constitution. To rule that a married woman is eternally tethered to the domicile dictated by her dead
husband is to preserve the anachronistic and anomalous balance of advantage of a husband over
his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce
us to shout long live the dead! The Family Code buried this gender-based discrimination against
married women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of
Representative of the First Congressional District of Leyte. I wish, however, to express a few
comments on the issue of petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present
intention of removing therefrom, and that place is properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a
present intention of making it his permanent home (28 C.J.S. §1). It denotes a fixed permanent
residence to which when absent for business, or pleasure, or for like reasons one intends to return,
and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v.
Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every
individual a domicile of origin, which is the domicile of his parents, or of the head of his family, or of
the person on whom he is legally dependent at the time of his birth. While the domicile of origin is
generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. §5). Domicile of
choice, on the other hand, is the place which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or foundation the intention of the person (28
C.J.S. §6). In order to hold that a person has abandoned his domicile and acquired a new one called
domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in
the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon the
old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408,
415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S.
§7).

In election law, when our Constitution speaks of residence for election purposes it means domicile
(Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52
Phil. 645, 651). To my mind, public respondent Commission on Elections misapplied this concept, of
domicile which led to petitioner's disqualification by ruling that petitioner failed to comply with the
constitutionally mandated one-year residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In
several decisions, though, the Court has laid down the rule that registration of a voter in a place
other than his place of origin is not sufficient to constitute abandonment or loss of such residence
(Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent reason to depart
from this rule except to surmise petitioner's intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to
her marriage, a domicile by operation of law. The proposition is that upon the death of her husband
in 1989 she retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual
change thereof. I find this proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By
legal fiction she followed the domicile of her husband. In my view, the reason for the law is for the
spouses to fully and effectively perform their marital duties and obligations to one another.1 The
question of domicile, however, is not affected by the fact that it was the legal or moral duty of the
individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital domicile
so long as the marriage subsists, she automatically loses it upon the latter's termination, for the
reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the
death of her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any meaningful
purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her
husband's death without even signifying her intention to that effect. It is for the private respondent to
prove, not for petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for
Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party (herein private
respondent) claiming that a person has abandoned or lost his residence of origin who must show
and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S.
§16), because the presumption is strongly in favor of an original or former domicile, as against an
acquired one (28 C.J.S. §16). Private respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a
new domicile to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with the constitutional one-
year residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside
in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered
her residential house and other properties forbade her necessitating her transient stay in various
places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position
of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her residence certificate2 and resided with her
brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was
allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte
(Annex I, p. 6).3 It was in the same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa,
Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to
use as the reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein
until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that
both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it
indubitably stands that she had more than a year of residence in the constituency she sought to be
elected. Petitioner, therefore, has satisfactorily complied with the one-year qualification required by
the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified
from running for Representative of her District and that, in the event that she should, nevertheless,
muster a majority vote, her proclamation should be suspended. Not by a straightforward ruling did
the COMELEC pronounce its decision as has been its unvarying practice in the past, but by a
startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its Second Division disqualifying her and canceling
her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the
COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election;
then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results
of the canvass should show that she obtained the highest number of votes (obviously noting that
petitioner had won overwhelmingly over her opponent), but almost simultaneously reversing itself by
directing that even if she wins, her proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the
interpretation to be given to the one-year residency requirement imposed by the Constitution on
aspirants for a Congressional seat.1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election
purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte
and if so, whether she had resided there for at least a period of one year. Undisputed is her domicile
of origin, Tacloban, where her parents lived at the time of her birth. Depending on what theory one
adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled
in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation to
live with him at the residence fixed by him during his lifetime. What may confuse the layman at this
point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or
"domicile by operation of law," which subject we shall not belabor since it has been amply discussed
by the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the
husband's death on the domicile of the widow. Some scholars opine that the widow's domicile
remains unchanged; that the deceased husband's wishes perforce still bind the wife he has left
behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or
domicile of the family, as laid down in the Civil Code,2 but to continue giving obeisance to his wishes
even after the rationale underlying the mutual duty of the spouses to live together has ceased, is to
close one's eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin
upon the demise of her husband. Does the law so abhor a vacuum that the widow has to be
endowed somehow with a domicile? To answer this question which is far from rhetorical, one will
have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one
must have only a single domicile for the same purpose at any given time. Once established, a
domicile remains until a new one is acquired, for no person lives who has no domicile, as defined by
the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more
murky by the conflicting opinions of foreign legal authorities. This being the state of things, it is
imperative as it is opportune to illumine the darkness with the beacon light of truth, as dictated by
experience and the necessity of according petitioner her right to choose her domicile in keeping with
the enlightened global trend to recognize and protect the human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights
are concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It
is a historical fact that for over three centuries, the Philippines had been colonized by Spain, a
conservative, Catholic country which transplanted to our shores the Old World cultures, mores and
attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889,
the people, both men and women, had no choice but to accept such concepts as the husband's
being the head of the family and the wife's subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many instances come to mind, foremost being what is
related to the issue before us, namely, that "the husband shall fix the residence of the
family." 3 Because he is made responsible for the support of the wife and the rest of the family, 4 he is
also empowered to be the administrator of the conjugal property, with a few exceptions 5 and may,
therefore, dispose of the conjugal partnership property for the purposes specified under the
law;6 whereas, as a general rule, the wife cannot bind the conjugal partnership without the
husband's consent.7 As regards the property pertaining to the children under parental
authority, the father is the legal administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are certain strictures on her personal
freedoms, practically relegating her to the position of minors and disabled persons. To
illustrate a few: The wife cannot, without the husband's consent, acquire any gratuitous title,
except from her ascendants, descendants, parents-in-law, and collateral relatives within the
fourth degree.9 With respect to her employment, the husband wields a veto power in the case
the wife exercises her profession or occupation or engages in business, provided his income
is sufficient for the family, according to its social standing and his opposition is founded on
serious and valid grounds. 10 Most offensive, if not repulsive, to the liberal-minded is the
effective prohibition upon a widow to get married till after three hundred days following the
death of her husband, unless in the meantime, she has given birth to a child. 11 The mother
who contracts a subsequent marriage loses the parental authority over her children, unless
the deceased husband, father of the latter, has expressly provided in his will that his widow
might marry again, and has ordered that in such case she should keep and exercise parental
authority over their children. 12 Again, an instance of a husband's overarching influence from
beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked
no protest from them until the concept of human rights and equality between and among
nations and individuals found hospitable lodgment in the United Nations Charter of which the
Philippines was one of the original signatories. By then, the Spanish "conquistadores" had
been overthrown by the American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights,
in the dignity and worth of the human person, in the equal rights of men and women."
(Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to
the burgeoning of the feminist movement. What may be regarded as the international
bill of rights for women was implanted in the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General
Assembly which entered into force as an international treaty on September 3, 1981. In
ratifying the instrument, the Philippines bound itself to implement its liberating spirit
and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
all nations." 13 One such principle embodied in the CEDAW is granting to men and
women "the same rights with regard to the law relating to the movement of persons
and the freedom to choose their residence and domicile." 14(Emphasis supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the
1987 Constitution of the Philippines and later, in the Family Code, 15 both of which were
speedily approved by the first lady President of the country, Corazon C. Aquino. Notable for
its emphasis on the human rights of all individuals and its bias for equality between the
sexes are the following provisions: "The State values the dignity of every human person and
guarantees full respect for human rights"16 and "The State recognizes the role of women in
nation-building, and shall ensure the fundamental equality before the law of women and
men."17

A major accomplishment of women in their quest for equality with men and the elimination of
discriminatory provisions of law was the deletion in the Family Code of almost all of the
unreasonable strictures on wives and the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now given the right jointly to fix the family
domicile;18 concomitant to the spouses' being jointly responsible for the support of the family is the
right and duty of both spouses to manage the household;19 the administration and the enjoyment of
the community property shall belong to both spouses jointly;20 the father and mother shall now jointly
exercise legal guardianship over the property of their unemancipated common child21 and several
others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned,
Congress passed a law popularly known as "Women in Development and Nation Building
Act"22 Among the rights given to married women evidencing their capacity to act in contracts equal to
that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit
arrangements under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting
agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian
reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure
visas and other travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court
now be the first to respond to its clarion call that "Women's Rights are Human Rights" and that "All
obstacles to women's full participation in decision-making at all levels, including the family" should be
removed. Having been herself a Member of the Philippine Delegation to the International Women's
Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle
being waged by women the world over, Filipino women not excluded, to be accepted as equals of
men and to tear down the walls of discrimination that hold them back from their proper places under
the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial,
according more rights to women hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it still be insisted that widows are not
at liberty to choose their domicile upon the death of their husbands but must retain the same,
regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was before. Neither does she automatically revert to
her domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In
returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the
First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of
choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up
her domicile in the two places sufficed to meet the one-year requirement to run as Representative of
the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals
and directions and render steady our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A compliant transience of a constitution belittles its basic function and
weakens its goals. A constitution may well become outdated by the realities of time. When it does, it
must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle,
has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either by express

statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121
SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the
fundamental law. These provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unless he is a

natural-born citizen of the Philippines and, on the day of the election, is at least
twenty-five years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately preceding the day
of the election.

Sec. 17. 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.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer
"all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its authority to pass upon the qualification
and disqualification prescribed by law of candidates to an elective office. Indeed, pre-proclamation
controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX,
C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-year residency
requirement. The issue (whether or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination. The findings and judgment of
the COMELEC, in accordance with the long established rule and subject only to a number of
exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.

I do not find much need to do a complex exercise on what seems to me to be a plain matter.
Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to stay)
or temporary (the place where he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the
domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by this Court in Romualdez
vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:

In election cases, the Court treats domicile and residence as synonymous terms,
thus: "(t)he term "residence" as used in the election law is synonymous with
"domicile," which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in turn, to
acquire a new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the new domicile must
be actual.

Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate or the House of Representatives.
The question can be asked on whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the number of votes cast in an election
exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment on the
ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The nagging question, if it were
otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns
and qualification" of its members.

Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of
Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:

REPUBLIC ACT NO. 6646

 xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority. — The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before the
election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any
reason, a candidate is not declared by final, judgment before an election to be
disqualified, and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.

I realize that in considering the significance of the law, it may be preferable to look for not so much
the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will
not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified
candidate, whenever ultimately declared as such, should not be counted in his or her favor and must
accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the
rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201
SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994])
rulings. Benito vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in
by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo,
Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:

Finally, there is the question of whether or not the private respondent, who filed
the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections,
(137 SCRA 740) decided in 1985. In that case, the candidate who placed second
was proclaimed elected after the votes for his winning rival, who was disqualified as
a turncoat and considered a non-candidate, were all disregard as stray. In effect, the
second placer won by default. That decision was supported by eight members of the
 Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova,
De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave.
(Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents
the more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten
members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote, (Makasiar, J.)
another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and
Concepcion, Jr., J.) There the Court held:

. . . it would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not
choose him.

Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can
be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the office to which they seek to be elected. I
think that it has none and that the qualifications of candidates may be questioned only in the event
they are elected, by filing a petition for quo warranto or an election protest in the appropriate forum,
not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral
Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no
moment. Such proceedings were unauthorized and were not rendered valid by their agreement to
submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a
candidate's qualifications for an office before his election. There are none in the Omnibus Election
Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing
for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo warrantoproceedings against winning
candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity
(due to insanity, incompetence or conviction of an offense) of a person either to be a candidate or to
continue as a candidate for public office. There is also a provision for the denial or cancellation of
certificates of candidacy, but it applies only to cases involving false representations as to certain
matters required by law to be stated in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been sentenced to a
penalty of more than eighteen months or for a crime involving moral turpitude, shall
be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed

upon the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified. (Emphasis
added)

§ 68. Disqualifications. — Any candidate who, in an 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 of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Emphasis added)

§ 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. The
petition may be filed at any time not later than twenty-five days from the time of the
 filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
(Emphasis added).

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The

procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg.
881.

and the Local Government Code of 1991 (R.A. No. 7160):

§ 40. Disqualifications. — The following persons are disqualified from running for any
elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2) years
after serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code;
and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no allegation that private respondent Imelda
Romualdez-Marcos made material representations in her certificate of candidacy which were false, it
sought her disqualification on the ground that "on the basis of her Voter Registration Record and
Certificate of Candidacy, [she] is disqualified from running for the position of Representative,
considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in
the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position of Member
of the House of Representatives for the First Legislative District of Leyte" and not because of any
finding that she had made false representations as to material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of
candidacy under § 78 of the Omnibus Election Code, but essentially a petition to declare private
respondent ineligible. It is important to note this, because, as will presently be explained,
proceedings under § 78 have for their purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to disqualify a person from holding public
office. Jurisdiction over quo warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of
candidacy, the allegations were that the respondent candidates had made false representations in
their certificates of candidacy with regard to their citizenship,1 age,2 or residence.3 But in the
generality of cases in which this Court passed upon the qualifications of respondents for office, this
Court did so in the context of election protests4 or quo warrantoproceedings5 filed after the
proclamation of the respondents or protestees as winners.

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.6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. 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 of 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.7 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 or of the President and Vice
President, as the case may be.
By providing in § 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously silent about a
pre-proclamation remedy based on the same ground, the Omnibus Election Code, or OEC, by its
silence underscores the policy of not authorizing any inquiry into the qualifications of candidates
unless they have been elected.

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 rulemaking power under Art. IX, A, § 6 of the
Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even the
power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, § 2(3))

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
disqualifications provided in § 4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited
election practices or offenses, like other pre-proclamation remedies, are aimed at the detestable
practice of "grabbing the proclamation and prolonging the election protest,"8 through the use of
"manufactured" election returns or resort to other trickery for the purpose of altering the results of the
election. This rationale does not apply to cases for determining a candidate's qualifications for office
before the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented from assuming
office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest
or action for quo warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after
his proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of
the Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the
Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of the Constitution.
In the case of the President and Vice President, the petition must be filed with the Presidential
Electoral Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral
Tribunal. (Art. VI, § 17) There is greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the case of candidates for President,
Vice President, Senators and members of the House of Representatives, because of the same
policy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its questioned orders, are void; and that the eligibility of
petitioner Imelda Romualdez-Marcos for the office of Representative of the First District of Leyte
may only be inquired into by the HRET.

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

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice
Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with
the provision itself. The controversy should not be blurred by what, to me, are academic
disquisitions. In this particular controversy, the Constitutional provision on point states that — "no
person shall be a member of the House of Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and
write, and except the party list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood
as synonymous with domicile. This argument has been validated by no less than the Court in
numerous cases1 where significantly the factual circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if the intention to reside therein is manifest with
his personal presence in the place, coupled with conduct indicative of such intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalities within which
the phrase "a resident thereof (meaning, the legislative district) for a period of not less than one
year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only
has to prove that he has been domiciled in a permanent location for not less than a year before the
election.
A second situation is where a person maintains a residence apart from his domicile in which case he
would have the luxury of district shopping, provided of course, he satisfies the one-year residence
period in the district as the minimum period for eligibility to the position of congressional
representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of choice; neither would one be disqualified for
abandoning altogether his domicile in favor of his residence in the district where he desires to be a
candidate.

The most extreme circumstance would be a situation wherein a person maintains several residences
in different districts. Since his domicile of origin continues as an option as long as there is no
effective abandonment (animus non revertendi), he can practically choose the district most
advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a
period of not less than one year immediately preceding the day of the election", he must be a
resident in the district where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term
"residence" is to be synonymous with "domicile." In other words, the candidate's intent and actual
presence in one district must in allsituations satisfy the length of time prescribed by the fundamental
law. And this, because of a definite Constitutional purpose. He must be familiar with the environment
and problems of a district he intends to represent in Congress and the one-year residence in said
district would be the minimum period to acquire such familiarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now
assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en
banc) —

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 1948 when she graduated from high school. She pursued
her college studies in St. Paul's College, now Divine Word University of Tacloban,
where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese High 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 Marcos when he was
still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and
registered there as a voter. When her husband was elected Senator of the Republic
in 1959, she and her husband lived together in San Juan, Rizal where she registered
as a voter. In 1965 when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a voter in
San Miguel, Manila.

During the Marcos presidency, respondent served as a Member of the Batasang

Pambansa, Minister of Human Settlements and Governor of Metro Manila. She
claimed that in February 1986, 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. On August 24, 1994, respondent filed a letter with the election officer of San
 Juan, Metro Manila, requesting for cancellation of her registration in the Permanent
List of Voters in Precinct No. 157 of San Juan, Metro Manila, in order that she may
be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On
August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter
in 157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot,
Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot,
Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter
Registration Record No. 94-3349772, wherein she alleged that she has resided in
the municipality of Tolosa for a period of 6 months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election
Supervisor, Leyte, a Certificate of Candidacy for the position of Representative of the
First District of Leyte wherein she also alleged that she has been a resident in the
constituency where she seeks to be elected for a period of 7 months. The pertinent
entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/

Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot,

Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot,

Tolosa, Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN

I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING ELECTION: ________
Years SevenMonths

10. I AM NOT A PERMANENT RESIDENT OF, OR

IMMIGRANT TO, A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution
of the Republic of the Philippines and will maintain true faith and allegiance thereto;
That I will obey the laws, legal orders and decrees promulgated by the duly-
constituted authorities; That the obligation imposed by my oath is assumed
voluntarily, without mental reservation or purpose of evasion; and That the facts
stated herein are true to the best of my knowledge.

(Sgd.) Imelda
Romualdez-Marcos
(Signature of
Candidate)2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive
component or seed of her disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I seek to be elected immediately
preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding that
petitioner is disqualified from the position of representative for the 1st congressional district of Leyte
in the elections of 8 May 1995, for failure to meet the "not less than one-year residence in the
constituency (1st district, Leyte) immediately preceding the day of election (8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the
next important issue to resolve is whether or not the Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining qualified candidates for representative in
said district.

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R.
86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case
of Topacio vs. Paredes, 23 Phil. 238 that:

. . . . Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other
purposes) (84 O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to be disqualified

shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may,
during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of
the provision quoted above. As the law now stands, the legislative policy does not limit its concern
with the effect of a final judgement of disqualification only before the election, but even during or
after the election. The law is clear that in all situations, the votes cast for a disqualified candidate
SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission
on Election to continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final judgment before
an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when
evidence of his guilt is strong) is also explicit under the law. What happens then when after the
elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and
in legal contemplation, he no longer received the highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply
because a "winning candidate is disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes cast for the disqualified candidate
not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court
should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been
stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most
especially when it is mandated by no less than the Constitution.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of
Leyte to proclaim the candidate receiving the highest number of votes, from among the qualified
candidates, as the duly elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the
same conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the
basis of the personality of a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present
Tacloban City, she being a legitimate daughter of parents who appear to have taken
up permanent residence therein. She also went to school there and, for a time,
taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in
Batac, Ilocos Norte, by operation of law she acquired a new domicile in that place in
1954.

3. In the successive years and during the events that happened thereafter, her
husband having been elected as a Senator and then as President, she lived with him
and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel,
Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these merely in
the exercise of the right of suffrage.
 5. It does not appear that her husband, even after he had assumed those lofty
positions successively, ever abandoned his domicile of origin in Batac, Ilocos Norte
where he maintained his residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the
Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines
in 1991 and resided in different places which she claimed to have been merely
temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her
certificate of candidacy she indicated that she was then a registered voter and
resident of San Juan, Metro Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the
Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that
she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31,
1994, she followed this up with her Sworn Application for Cancellation of Voter's
Previous Registration wherein she stated that she was a registered voter in Precinct
No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot,
Tolosa, Leyte, for which purpose she filed with the therein Board of Election
Inspectors a voter's registration record form alleging that she had resided in that
municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of
Representative of the First District of Leyte wherein she alleged that she had been a
resident for "Seven Months" of the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy"

wherein her answer in the original certificate of candidacy to item "8. RESIDENCE IN
THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new entry reading
"SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with
the residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987
Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on the difference
between residence and domicile. We have had enough of that and I understand that for purposes of
political law and, for that matter of international law, residence is understood to be synonymous with
domicile. That is so understood in our jurisprudence and in American Law, in contradistinction to the
concept of residence for purposes of civil, commercial and procedural laws whenever an issue
thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and
inseparable from her domicile, I am addressing the issue from the standpoint of the concept of the
latter term, specifically its permutations into the domicile of origin, domicile of choice and domicile by
operation of law, as understood in American law from which for this case we have taken our
jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the
"domicile of origin," constitutes the domicile of an infant until abandoned, or until the acquisition of a
new domicile in a different place.1 In the instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth,
domicile by choice, and domicile by operation of law. The first is the common case of the place of
birth or domicilium originis, the second is that which is voluntarily acquired by a party or domicilium
propio motu; the last which is consequential, as that of a wife arising from marriage,3 is sometimes
called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced
by a domicile of choice or a domicile by operation of law subsequently acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, 4 she acquired her husband's domicile of origin
in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter
to Honolulu, Hawaii, and back to now San Juan, Metro Manila — do not appear to have resulted in
her thereby acquiring new domiciles of choice. In fact, it appears that her having resided in those
places was by reason of the fortunes or misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them. Her residence in Honolulu and, of course,
those after her return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite
residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to
acquire any other domicile of choice which could have resulted in the abandonment of her legal
domicile in Batac, Ilocos Norte. On that score, we note the majority's own submission 6 that, to
successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual
change of domicile, (b) a bona fide intention of abandoning the former place of residence and
establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of
choice apply whether what is sought to be changed or substituted is a domicile of origin (domicilium
originis) or a domicile by operation of law (domicilium necesarium). Since petitioner had lost
her domicilium originis which had been replaced by her domicilium necesarium, it is therefore her
continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the
contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner
Regalado E. Maambong in SPA 95-009 of the Commission on Elections,7 and advances this novel
proposition.

It may be said 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 (sic, 1954). By
operation of law (domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no indications of an
intention on her part to abandon her domicile of origin. Because of her husband's
subsequent death and through the operation of the provisions of the New Family
Code already in force at the time, however, her legal domicile automatically reverted
to her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium
necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did not
intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is the law
that declares where petitioner's domicile is at any given time, and not her self-serving or putative
intent to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot
have more than one domicile at a time,8 the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is
fancied as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance
with law. However, we are here being titillated with the possibility of an automatic reversion to or
reacquisition of a domicile of origin after the termination of the cause for its loss by operation of law.
The majority agrees that since petitioner lost her domicile of origin by her marriage, the termination
of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this
theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily
abandons the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does
not per se recover his original domicile unless, by subsequent acts legally indicative thereof, he
evinces his intent and desire to establish the same as his new domicile, which is precisely what
petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile
of origin, not only because there is no legal authority therefor but because it would be absurd
Pursued to its logical consequence, that theory of ipso jure reversion would rule out the fact that said
party could already very well have obtained another domicile, either of choice or by operation of law,
other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which
the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we
assume that she entered into the marital state against her will) but, on top of that, such
abandonment was further affirmed through her acquisition of a new domicile by operation of law. In
fact, this is even a case of both voluntary and legal abandonment of a domicile of origin. With much
more reason, therefore, should we reject the proposition that with the termination of her marriage in
1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she
lost in 1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin which was
only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the
right to elect her own domicile,9 she nevertheless retains the last domicile of her deceased husband
until she makes an actual change. 10 In the absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows that of her husband and will continue
after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68
and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right
and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint
right, which in the first place was never exercised by the spouses, could affect the domicile fixed by
the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has
the coordinate power to determine the conjugal or family domicile, but that has no bearing on this
case. With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no longer
called for or material in the present factual setting of this controversy. Instead, what is of concern in
petitioner's case was the matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation of
women in the affairs of the nation, with equal rights and recognition by Constitution and statutory
conferment. However, I have searched in vain for a specific law or judicial pronouncement which
either expressly or by necessary implication supports the majority's desired theory of automatic
reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference;
and, unquestionably, this should be resolved by legislative articulation but not by the eloquence of
the well-turned phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she cannot legally claim that her residency in the
political constituency of which it is a part continued since her birth up to the present. Respondent
commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original
certificate that she had actually resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further pass upon the procedural issues
raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan,
more particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the special civil action for certiorari under Rule 65 of
the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84
[1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess
of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the
COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the only issue left is
whether it acted with grave abuse of discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC
Second Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of
discretion, much less grave abuse thereof. The resolution of the Second Division dispassionately
and objectively discussed in minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First
Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or
by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin,
which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her
domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was for
only seven months before the day of the election. She was then disqualified to be a candidate for the
position of Representative of the First Congressional District of Leyte. A holding to the contrary
would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or
Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her
marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation
of law is that domicile which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife arising from marriage
(28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte.
Said Article reads as follows:

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.

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband has a
predominant right because he is empowered by law to fix the family residence. This
right even predominates over some rights recognized by law in the wife. For
instance, under article 117 the wife may engage in business or practice a profession
or occupation. But because of the power of the husband to fix the family domicilehe
may fix it at such a place as would make it impossible for the wife to continue in
business or in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The husband cannot
validly allege desertion by the wife who refuses to follow him to a new place of
residence, when it appears that they have lived for years in a suitable home
belonging to the wife, and that his choice of a different home is not made in good
faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1,
1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of law,
acquires that of her husband, no matter where the wife actually lives or what she believes or intends.
Her domicile is fixed in the sense that it is declared to be the same as his, and subject to certain
limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile § 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family
domicile is no longer the sole prerogative of the husband, but is now a joint decision of the spouses,
and in case of disagreement the court shall decide. The said article uses the term "family domicile,"
and not family residence, as "the spouses may have multiple residences, and the wife may elect to
remain in one of such residences, which may destroy the duty of the spouses to live together and its
corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by jurisprudence. The settled doctrine is that after the husband's
death the wife has a right to elect her own domicile, but she retains the last domicile of her husband
until she makes an actual change (28 C.J.S. Domicile § 12, 27). Or, on the death of the husband, the
power of the wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note
that what is revived is not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the
time of his death — which was Batac, Ilocos Norte, since their residences in San Juan, Metro
Manila, and San Miguel, Manila, were their residences for convenience to enable her husband to
effectively perform his official duties. Their residence in San Juan was a conjugal home, and it was
there to which she returned in 1991 when she was already a widow. In her sworn certificate of
candidacy for the Office of the President in the synchronized elections of May 1992, she indicated
therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a
widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the
Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list of voters
in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy. Olot, Tolosa,
Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as
Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn
statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28
January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy
sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly
declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In
the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she
declared under oath that her "domicile or residence is Tacloban City." If she did intend to return to
such domicile or residence of origin why did she inform the Election Officer of San Juan that she
would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her
certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not
important insofar as residence in the congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue
of marriage and that such length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294
[1954]), and the subsequent cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice one's profession, or engage in business in
other states does not constitute loss of such residence or domicile. So is the reliance on Section 117
of the Omnibus Election Code which provides that transfer of residence to any other place by reason
of one's "occupation; profession; employment in private and public service; educational activities;
work in military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in accordance with law"
is not deemed as loss of original residence. Those cases and legal provision do not include marriage
of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the
intention of this Court or of the legislature to consider the marriage of a woman as a circumstance
which would not operate as an abandonment of domicile (of origin or of choice), then such cases
and legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit
(Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or
residence of origin is Tacloban City," and that she "never intended to abandon this domicile or
residence of origin to which [she] always intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and had acquired a new one animo
et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely committed
an honest mistake" in writing down the word "seven" in the space provided for the residency
qualification requirement in the certificate of candidacy. Such a claim is self-serving and, in the light
of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she stated was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200
SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises
her revived power to acquire her own domicile, the burden is upon her to prove that she has
exercised her right to acquire her own domicile. She miserably failed to discharge that burden.

I vote to deny the petition.

Footnotes

1 Jarrolt v. Mabberly, 103 U.S. 580 (1881).

2 CONST, art. VI, states:

Sec. 6. No person shall be a member of the House of Representatives unless

he is a natural-born citizen of the Philippines and, on the day of the election,
is at least twenty-five years of age, able to read and write, and except the
party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election.

See, Jarrolt v. Mabberly, supra, note 1.

3 Gallego vs. Vera, 73 Phil. 453 (1941).

4 Rollo, p. 114, Annex "D".

5 Rollo, p. 110, Annex "D".

6 Rollo, p. 113.
7 Rollo, p. 111.

8 Rollo, p. 115, Annex "E".

9 Signed by Virgilo S. Oledan, Provincial Election Supervisor IV, Leyte; Rollo,

p. 116, Annex "F".

10 Rollo, p. 117, Annex "G". Petitioner explained the circumstances

surrounding the filling up of the original certificate thus:

1. On March 8, 1995, I filed my certificate of candidacy for Member of the

House of Representatives (Congresswoman) of the First Legislative District
of the province of Leyte, which was drafted by Mr. Filomeno A. Zeta.

2. I learned lately that Congressman Cirilo Montejo wants to disqualify me as

I allegedly lack residence in the constituency because of the entry of the
word "SEVEN" in Item No. 8 of my certificate of candidacy.

3. I read my certificate of candidacy before signing it and thought of the word

"RESIDENCE" to mean actual or physical residence, and the word "SEVEN"
merely reflected my actual and physical residence in Barangay Olot, Tolosa,
Leyte.

3.1. The word "SEVEN" was placed on my certificate of candidacy to indicate

that at lease one (1) month had passed from my registration as voter of
Tolosa, Leyte, on January 28, 1995, when I wrote "06" months under
"PERIOD OF RESIDENCE" as my actual or physical residence in the town.

4. I thought then that the sense in Item No. 10 of my certificate of candidacy

stating "THAT I AM eligible for said Office" was sufficient to affirm that I
possess all the qualifications, including my residence, for Member of the
House of Representatives for which I am aspiring in the May 8, 1995
elections.

5. The fact, however, is that my domicile or residence of origin is Tacloban

City, a component city of the First Legislative District of Leyte I never
intended to abandon this domicile or residence of origin to which I always
intended to return whenever absent; indeed in 1992, I returned to Tacloban
City to live and stay there. On November 5, 1992; I bought my Residence
Certificate No. 15226186L there, which is made an integral part hereof as
Annex "I" (Annex "2" hereof).

11 Id., at p. 120. See also, Rollo, p. 130-133, Annex "I", petitioner's Affidavit
explaining her residence:

13. I established my domicile, however in Tacloban, Leyte (Tacloban City in

1938, when was little over eight (8) years old. Shortly after my mother died
on April 7, 1938, my widowed father, Vicente Orestes Romualdez, brought
me and my brothers. . .and my sisters to Tacloban, Leyte (now Tacloban
City) his hometown.
 xxx xxx xxx

18. I have always considered Tacloban City as my permanent residence or

residence of origin have not abandoned and have never intended to abandon
my permanent residence or residence of origin there. To it I always intend to
return whenever absent.

19. In 1952, I went to Manila to work with my cousin, the late speaker
Daniel Z. Romualdez in his office in the House of Representatives.

20. In May, 1954, I married President Ferdinand E. Marcos when he was still
the congressman of Ilocos, Norte.

21. As a dutiful wife who loved him deeply, I lived with him in Batac, Ilocos
Norte and registered as a voter there.

22. In 1965, my husband was elected President of the Republic of the

Philippines. Together, we lived in Malacañang Palace and I registered as a
voter in San Miguel, Manila.

23. My registration as voter in Batac, Ilocos Norte; San Juan, Rizal (now San
Juan, Metro Manila); and San Miguel, Manila, was for convenience because I
had to live with my husband to serve him when he was congressman,
Senator and President of the Republic of the Philippines. During those years
however, I never intended nor desired to abandon my domicile or residence
of origin in Tacloban City, which I established since I was a child.

xxx xxx xxx

33. Throughout the Marcos Presidency, I spent most of my birthday

anniversaries and attended the Sto. Nini Fiesta in Tacloban City. I regularly
visited my domicile or residence of origin in Leyte and even held important
functions and entertained guests and foreign dignitaries there.

34. After President Ferdinand E. Marcos and I, together with our children and
innocent grandchildren were abducted and kidnapped to Honolulu, Hawaii, in
February, 1986, my Leyte properties were sequestered by the PCGG, and
were destroyed and cannibalized.

xxx xxx xxx

38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte even if my residences there were not
livable as they had been destroyed and cannibalized. The PCGG, however,
did not permit and allow me.

xxx xxx xxx

40. After the 1992 Presidential Elections, I lived and resided in the residence
of my brother in San Jose, Tacloban City, and pursued my negotiations with
PCGG to recover my sequestered residences in Tacloban City and Barangay
Olot, Tolosa, Leyte.

12 Rollo, p. 122.

13 Commissioners Manolo B. Gorospe and Teresita Dy-Liaco Flores formed

the majority opinion. Commissioner Remedies A. Salazar-Fernando
dissented.

14 Rollo, p. 64.

15 Rollo, p. 57-64.

16 Petitioner filed a "Motion to Recall Resolution Promulgated on April 24,

1995 and to Dismiss the Petition Because of Lapse of Jurisdiction;
Alternatively, Motion for Reconsideration." The Commission's May 7, 1995
Resolution treated the same simply as a Motion for Reconsideration.

17 Commissioners Regalado E. Maambong, Remedios A. Salazar-Fernando

and Julio F. Desamito dissented. All filed separate dissenting opinions. In
disqualifying petitioner, the majority held:

As it stands now, only the Certificate of Candidacy respondent filed on March

8, 1995, stands, and on the basis of the entries therein, she is disqualified to
run for failure to meet the constitutional requirement of one (1) year of
residence in the place where she wanted to be elected.

18 Rollo, p. 78, Annex "B".

19 Rollo, Annex "D".

20 19 SCRA 966 (1967). See also, Corre v. Corre, 100 Phil. 221 (1956).

21 Id. at 969.

22 Uytengsu v. Republic, 95 Phil. 890 (1954).

23 Id.

24 52 Phil. 645 (1928).

25 Citing People v. Bender 144 N.Y.S., 145.

26 61 Phil. 36 (1934).

27 96 Phil. 294 (1954).

28 Id, see also Ujano v. Republic, 17 SCRA 147 (1966); Nuval v.

Guray, supra
note 22.

29 II RECORD OF THE 1987 CONSTITUTIONAL CONVENTION, 110 (July

22, 1986).

30 Id.

31 199 SCRA 692 (1991).

32 Id, at 714.

33 61 Phil. 36 (1934).

34 96 Phil. 294, 299-300 (1954).

35 B.P. 881, sec. 117 states:

xxx xxx xxx

Any person who transfers residence to another city, municipality or country

solely by reason of his occupation; profession; employment in private or
public service; educational activities; work in military or naval reservations;
service in the army, navy or air force; the constabulary or national police
force; or confinement or detention in government institutions in accordance
with law shall not be deemed to have lost his original residence.

36 Rollo, p. 38.

37 18 Am Jur 219-220.

38 20 Am Jur 71.

39 TOLENTINO 1 COMMENTARIES & JURISPRUDENCE ON THE CIVIL

CODE, 220 (1987).

40 Id.

41 TOLENTINO, 1 COMMENTARIES AND JURISPRUDENCE ON CIVIL

CODE, 220 (1987).

42 Under modern laws, it is clear that many exceptions to the rule that the
domicile of the wife is determined by that of her husband must obtain.
Accordingly, the wife may acquire another and separate domicile from that of
her husband where the theoretical unity of the husband and wife is dissolved,
as it is by the institution of divorce proceedings; or where the husband has
given cause for divorce; or where there is a separation of the parties by
agreement, or a permanent separation due to desertion of the wife by the
husband or attributable to cruel treatment on the part of the husband; or
where there has been a forfeiture by the wife of the benefit of the husband's
domicile. 9 R.C.L., 545, cited in De La Vina, supra. If the law allows the wife
to automatically revert to her original domicile or acquire a new domicile
under these situations, all the more should it sanction a reversion — or the
acquisition of a new domicile by the wife — upon the death of her husband.

43 41 Phi. 13 (1920).

44 The rule that the wife automatically acquires or follows her husband's
domicile is not an absolute one. A specific situation recognized in Spanish
jurisprudence involves the one in which husband acquiesces (1 Manresa
223) or gives his tacit consent (Scaevola, Civil Code; 354.)

45 42 Phil. 54 (1921).

46 Justice Alicia Sempio-Diy recognizes the same Civil Code distinction.

However, taking another approach, she writes:

(6) The above Article (Article 69, FC) uses the term "family domicile" instead
of family residence because the spouses may have multiple residences, and
the wife may elect to remain in one of such residences, which may destroy
the duty of the spouses to live together and its corresponding benefits.
SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES,
102 (1988).

47 Rollo, pp. 132-133.

48 The provision reads: Section 78. Petition to deny due course or to cancel
a certificate of candidacy. — A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by any person exclusively on
the ground that any material representation contained therein as required
under
Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of filing of the certificate of candidacy and shall
be decided after due notice and hearing, not later than fifteen days before the
election.

49 Marcelino vs. Cruz, 121 SCRA 51 (1983).

50 American Tupe Founders Co. v. Justice's Court, 133 Cal. 819, 65 Pac.
742; Heillen v. Phillipps, 88 Cal. 557, 26 Pac. 366; Drake v. Bagley, 69 Mo.
App. 39; State v. Davis, 194 Mo. 585.

51 Supra, note 39, citing Huffines v. Gold 154 Tenn. 583, 588; 288 S.W. 353,
354.

52 Sec. 6. Effect of Disqualification Case. — Any candidate who has been

declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor, may
during the thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.

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

The procedure hereinabove provided shall apply to petitions to deny due
course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.

53 CONST., art. VI, sec. 11 states:

The Senate and the House of Representatives shall have an Electoral

Tribunal which shall be the sole judge of all questions relating to the election,
returns, and qualifications of their respective Members. . . .

PUNO, J., concurring:

1 Aristotle, Ethica Nichomachea, bk., v. 3, 1131 (a) (W. Ross translation,

1925 ed).

2 It provides: "No person shall be a member of the House of Representatives

unless he is a natural born citizen of the Philippines and on the day of the
election, is at least twenty-five years of age, able to read and write, and
except the party list representatives, a registered voter in the district in which
he shall be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election." (Emphasis supplied)

3 There are two (2) other instances when a married woman may have a
domicile different from the husband: (1) if they are legally separated pursuant
to par. 1, Art. 106 of the Civil Code, and (2) if the husband forcibly ejects the
wife from the conjugal home to have illicit relations with another. (De la Viña
v. Villareal and Geopano, 41 Phil. 13 [1920]).

4 Op cit.

5 Id., at pp. 16-17.

6 Id., at p. 20, citing 1 Manresa 223.

7 25 AM JUR 2nd S. 48, p. 37.

8 28 CJS on Domicile, S. 12, 27; 25 AM JUR 2nd on Domicile S. 62, 46.

9 28 CJS, S. 12, p. 24.

10 Restatement of the Law, 2d, Conflict of Laws 2d., S. 21, p. 84.

11 Ibid.

12 83 U.S. 442; 21 Law Ed. 442; S.C. 16 Wall 130.

13 Supra.

14 Supra.

15 In re Green's Estate, 191 N.Y.S. 757, 117 Misc. 800, 165 N.Y.S. 1063, 99
Misc. 582.

16 Clark et al. v. Baker et al., 196 SE 750, 186 Ga 65.

17 Lefcourt, Women and The Law, 1990 ed.

18 404 US 71.

19 28 CJS S. 12, p. 25 citing Shute v. Sargent, 36 A 282, 67 N.H. 305.

20 Op cit., p. 84.

21 Women's Status in Philippine Society, UP Law Center, 1979, pp. 4-6.

22 In submitting the draft of the Family Code to President Corazon Aquino,

the Civil Code Revision Committee stated:

Close to forty years of experience under the Civil Code adopted in 1949 and
changes and developments in all aspects of Filipino Life since then have
revealed the unsuitability of certain provisions of that Code, implanted from
foreign sources, to Philippine culture; the unfairness, unjustness, and gaps or
inadequacies of others; and the need to attune them to contemporary
developments and trends.

In particular — to cite only a few instances — (1) the property regime of

conjugal partnership of gains is not in accord with Filipino custom, especially
in the rural areas, which is more congenial to absolute community of
property; (2) there have considerably been more grounds for annulment of
marriage by the Church than those provided by the Code, thus giving rise to
the absurd situation of several marriages already annulled under Canon Law
but still considered subsisting under the Civil Law and making it necessary to
make the grounds for annulment under both laws to coincide; (3) unequal
treatment of husband and wife as to rights and responsibilities, which
necessitates a response to the long-standing clamor for equality between
men and women now mandated as a policy to be implemented under the
New Constitution; (4) the inadequacy of the safeguards for strengthening
marriage and the family as basic social institutions recognized as such by the
New Constitution; (5) recent developments have shown the absurdity of
limiting the grounds for legal separation to the antiquated two grounds
provided under the Civil Code; (6) the need for additional safeguards to
protect our children in the matter of adoption by foreigners; and (7) to bring
our law on paternity and filiation in step with or abreast of the latest scientific
discoveries." (Emphasis supplied)

23 Article 96, Family Code.

24 Article 225, Family Code.

25 Article 70, Family Code.

26 Article 71, Family Code.

27 Article 73, Family Code.

28 Op cit., Handbook on the Family Code of the Philippines, pp. 98-99.

29 As cited in Diy, Handbook on the Family Code of the Philippines, pp. 184-
185.

30 Section 1, Article III of the Constitution provides: "No person shall be

deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws."

31 Exhibit "E"; see also Exhibit "B" in SPA No. 95-001.

32 Exhibit "A" in SPA No. 95-009.

33 Exhibit "2" in SPA No. 95-009.

34 2 SCRA 957, 960 (1961); See Canceran v. COMELEC, 107 Phil. 607
(1960); Gabaldon v. COMELEC, 99 Phil. 898 (1956).

35 Section 26, Article II of the Constitution also provides: "The State shall
guarantee equal access to opportunities for public service . . . ."

36 Annex "G," Petition.

37 Petition, Annex "B-1" pp. 6-7.

38 73 Phil. 453, 459 (1951).

FRANCISCO, J., concurring:

1 See Articles 68-73 of E.O. 209, as amended, otherwise known as The

Family Code of the Philippines.

2 Residence Certificate No. 15226186L, dated Nov. 5, 1992.

3 PCGG Chairman Gunigundo's letter addressed to Col. Kempis.

ROMERO, J., separate opinion:

1 Art. VI, Sec. 6, Const.: "No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines and, on
the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the
district in which he shall be elected, and a resident thereof for a period not
less than one year immediately preceding the day of the election."

2 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.

3 Art. 110, Civil Code.

4 Art. 111, Civil Code.

5 Art. 112, Civil Code.

6 Art. 171, Civil Code.

7 Art. 172, Civil Code.

8 Art. 320, Civil Code.

9 Art. 114, Civil Code.

10 Art. 117, Civil Code.

11 Art. 84, Civil Code.

12 Art. 328, Civil Code.

13 Art. II, Sec. 2, Const.

14 Part IV, Art. 15, Paragraph 4, CEDAW.

15 Executive Order No. 209, July 6, 1987, as amended by Executive Order

No. 227, July 17,1987, which took effect on August 3, 1988.

16 Art. II Sec. 11, Const.

17 Art. II, Sec. 14, Const.

18 Art. 69, Family Code.

19 Art. 71, Family Code.

20 Art. 96, Family Code.

21 Art. 225, Family Code.

22 Republic Act No. 7192 approved February 12, 1992.

23 Ibid., Sec. 5.
MENDOZA, J., separate opinion:

1 Labo, Jr. v. COMELEC, 211 SCRA 297 (1992) (for mayor).

2 Loong v. COMELEC, 216 SCRA 760 (1992) (for regional vice governor).

3 Abella v. Larrazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201

SCRA 253 (1991) (for provincial governor).

4 Co. v. HRET, 199 SCRA 692 (1991) (election protest against a

Congressman).

5 Faypon v. Quirino, 96 Phil. 294 (1954) (quo warranto against a governor);

Gallego v. Verra, 73 Phil. 453 (1941) (quo warranto against a mayor); Larena
v. Teves, 61 Phil. 36 (1934) (quo warranto against a provincial board
member); Tanseco v. Arteche, 57 Phil. 227 (1932) (quo warranto against a
governor): Yra v. Abaño, 52 Phil. 380 (1928) (quo warranto against a
municipal president); Vivero v. Murillo, 52 Phil. 694 (1929) (quo
warranto against a municipal president). Cf. Aznar v. COMELEC, 185 SCRA
703 (1990) (quo warranto although prematurely filed, against a governor-
elect).

6 R.A. No. 6646, § 6; Labo, Jr. v. COMELEC, supra note 1.

7 OEC, § 76.

8 Lagumbay v. COMELEC, 16 SCRA 175 (1966).

PADILLA, J., dissenting:

1 Nuval vs. Guray, G.R. No. 30241, December 29, 1928; Larena vs. Teves,
G.R.
No. 42439, December 10, 1934; Gallego vs. Verra, G.R. No. 48641,
November 24, 1941; De los Reyes vs. Solidum, G.R. No. 42798. August 31,
1935; but see Romualdez vs. RTC, Br. 7 Tacloban City, where a sudden
departure from the country was not deemed "voluntary" so as to constitute
abandonment of domicile both in fact and in law.

2 Annex "A" Petition, pp. 2-4.

REGALADO, J., dissenting:

1 Struble vs. Struble, Tex. Civ. App., 177 S.W. 2d, 279, 283.

2 This is also referred to as natural domicile or domicile by birth (Johnson vs.

Twenty-One Bales, 13 Fed. Cas. 863).

3 Story, Conflict of Laws, Sec. 46; Railroad Co. vs. Kimbrough, 115 Ky 512,
74 S.W. 229; and Johnson vs. Harvey, 261 Ky. 522, 88 S.W. 2d 42, 46, 47,
as cited in Black's Law Dictionary, 4th ed.
 4 Article 110, Civil Code.

5 Towson vs. Towson, 126 Va. 640, 102 S.E. 48, 52; Fisher vs. Jordan,
C.C.A. Tex., 116 F. 2d. 183, 186; Minick vs. Minick, 111 Fla. 469, 149 So.
483, 488; Hartzler vs. Radeka, 265 Mich. 451, 251 N.W. 554.

6 Citing 18 Am. Jur. 219-220.

7 Montejo vs. Marcos, En Banc, May 10, 1995.

8 Citing 20 Am. Jur. 71.

9 Cheely vs. Clayton, D.C., 110 U.S. 701, L. Ed. 298.

10 In re Gates' Estate, 191 N.Y.S. 757, 117 Misc. 800 — In re Green's

Estate, 164 N.Y.S. 1063, 99 Misc. 582, affirmed 165 N.Y.S. 1088, 179 App.
Div. 890, as reported in 28 C.J.S. 27.

11 Clark vs. Baker, 196 S.E. 750, 186 Ga. 65, op. cit. 37.

EN BANC

[G.R. No. L-21855. January 30, 1968.]

IN THE MATTER OF THE PETITION OF ANDRES SINGSON TO BE ADMITTED OR TO BE DECLARED A

CITIZEN OF THE PHILIPPINES, ANDRES SINGSON, Petitioner-Appellant, v. REPUBLIC OF THE
PHILIPPINES, Oppositor-Appellee.

Mabanag, Elegir & Associates for Petitioner-Appellant.

Solicitor General for Oppositor-Appellant.

SYLLABUS

1. CITIZENSHIP; NO JUDICIAL DECLARATION OF CITIZENSHIP ALLOWED; SY QUIMSUAN AND SEN CASES

OVERRULED. — The rulings of the Supreme Court in the cases of Sy Quimsuan (92 Phil., 675) and Sen v.
Republic (L-6868, April 30, 1955) authorizing the trial court to declare an applicant for naturalization already
a citizen of the Philippines in the same naturalization proceedings if the evidence so warrants have been
overruled in Suy Chuan v. Republic (107 Phil., 632) and Yu Chin v. Republic (58 Off. Gaz., [47] 7683).

2. REMEDIAL LAW; JUDGMENT; ERRONEOUS JUDGMENT, NOT VOID, UNLESS REVERSED ON APPEAL OR
SET ASIDE ON GROUND OF FRAUD IN ITS PROCUREMENT. — Although the judgment of August 9, 1960
which declared the petitioner a citizen pursuant to his alternative prayer was erroneous as it was based on a
misappreciation of the applicable jurisprudence at the time it was rendered, such judgment is not only
necessarily null and void, but also acquires force and effect unless reversed on appeal or set aside on other
recognized grounds such as fraud in its procurement.

3. ID.; ID.; ID.; FRAUD, AS GROUND TO SET ASIDE JUDGMENT, MUST BE PROVED; PETITIONER MUST BE
GIVEN CHANCE TO REBUT CHARGE OF FRAUD. — It is true that the Solicitor General adduced a 1948
affidavit allegedly executed by the petitioner whereby the latter admitted that he was not a Filipino citizen.
But petitioner has not only raised the genuineness and due execution thereof but in fact denied the same, as
well as the truth of its contents in his opposition to the Solicitor General’s principal motion. And the
stipulation of facts upon which the parties agreed to submit the case for resolution does not show any
admission by appellee of the genuineness and due execution of the said affidavit. All that was stipulated
therein is that when the Solicitor General filed his petition to set aside the decision of August 9, the affidavit
was attached therewith as an annex. The act of the lower court in setting aside said decision without giving
petitioner a chance to present evidence to rebut the Republic’s allegation of his fraudulent representation
virtually deprived him of his day in court.

DECISION

MAKALINTAL, J.:

Appeal from the order of the Court of First Instance of La Union dated July 15, 1963 setting aside and
declaring null and void its previous decision declaring petitioner a citizen of the Philippines in Naturalization
Case No. 30.

Petitioner filed his petition for naturalization on October 12, 1959, with an alternative prayer that he be
permitted to present evidence of his Philippine citizenship and declared a Filipino citizen accordingly. After
due publication and hearing, there being no opposition from either the office of the Solicitor General or the
Provincial Fiscal, the lower court received the evidence for the petitioner. On August 9, 1960 it rendered its
decision holding that inasmuch as petitioner was already a Filipino citizen as borne out by the evidence
presented, there was no need to give due course to his petition for naturalization since it would serve no
useful purpose for him. Accordingly, the lower court granted petitioner’s alternative prayer and declared him
a citizen of the Philippines.

The above-mentioned conclusion was arrived at after the lower court found that: jgc:chanrob les.co m.ph

"From the evidence adduced, it appears that the petitioner has from the time he became of the age of
discretion been considering himself a Filipino citizen as shown in his residence certificates, stating therein his
citizenship as a Filipino. He did not register himself as an alien in the Bureau of Immigration. When he
reached the age of majority, he started exercising the right of suffrage and in 1941 made his declaration of
intention to elect Filipino citizenship. He explained that if he filed this petition he only did so because he
wanted to secure a categorical declaration about his citizenship in order to avoid further molestations by
some agencies or persons, who according to him, constantly pestered him about his status.

"The evidence further conclusively shows that said petitioner was born in the Philippines with a Filipino
mother and a Chinese father who were not legally married during their cohabitation up to the time of their
death. These are not contradicted by any evidence presented in this case, because as a matter of fact no
opposition whatsoever has been registered by the government through either the office of the Solicitor
General or the office of the Provincial Fiscal of La Union. In the case of Leon Retunil Sy Quimsuan v.
Republic of the Philippines (49 O.G. 492, February 1953), the Supreme Court ruled: chan rob1es v irt ual 1aw l ibra ry

‘When the evidence in applicant’s possession proves in his opinion that he has already the status of a Filipino
citizen as would make it unnecessary to press further his petition for naturalization, he may be declared a
Filipino citizen in the same proceedings. There is nothing in the law which would prohibit this alternative
procedure. This course has been followed in a number of cases (Palanca v. Republic, L-301, April 7, 1948;
Santos Go v. Government, 52 Phil. 543; Serra v. Republic, L-4223, May 12, 1952).’"

The State did not appeal from the aforequoted decision. However, after the lapse of more than two years, or
on December 17, 1962, the Solicitor General filed a petition to set aside the decision and to declare the
same null and void on the following grounds: jgc:chan rob les.com. ph

"(a) At the time of the hearing of his petition, the herein petitioner had not always deported himself to be a
Filipino citizen and in fact he had registered himself with the Bureau of Immigration as a Chinese and was
thereby issued on August 29, 1950, his Alien Certificate of Registration No. A-105940 at San Fernando, La
Union; and

"(b) That whatever rights petitioner has to Philippine citizenship by virtue of his alleged ‘illegitimate birth’ of
a Filipino mother, granting the same to be true, he had already forfeited when he expressly renounced his
rights and privileges as a Filipino citizen, as contained in his affidavit executed on October 19, 1948 and
wherein he expressly considered himself to be a citizen of China." cralaw virtua 1aw lib rary

Petitioner opposed, and the Solicitor General replied to the opposition. After petitioner’s counter-reply the
case was set for hearing. At the hearing the parties did not present evidence but submitted a "stipulation of
facts," which was actually nothing more than an enumeration of the pleadings submitted and the
proceedings which transpired in relation to this case. Paragraph 7 thereof particularly raised as a legal issue
the proposition that "the Government cannot reopen this case or attack the decision collaterally in this same
proceeding inasmuch as the decision rendered herein did not confer Philippine citizenship upon petitioner.
but merely confirmed his Philippine citizenship, . . ." cralaw virtua1aw li bra ry

On July 15, 1963 the lower court issued an order declaring the decision rendered on August 9, 1960, which
found petitioner to be a Filipino citizen, void and of no force and effect. This order is based principally on an
affidavit (Annex "A") dated October 19, 1948, allegedly executed by petitioner. In said affidavit petitioner
appears to have expressly renounced all his rights and privileges as a Filipino citizen in the event that he
should be considered as such by virtue of his having been born out of wedlock of a Chinese father and a
Filipino mother.

The question before us is whether or not the lower court erred in setting aside its previous order declaring
petitioner a citizen of the Philippines. Appellant contends that inasmuch as the original decision did not
confer Philippine citizenship upon him but merely confirmed such citizenship, the doctrine of res judicata and
laches prevents the Government from attacking collaterally the questioned decision more than two (2) years
after its rendition. On the other hand, appellee argues that although the petition for naturalization granted
petitioner’s alternative prayer that he be declared a citizen, that fact alone did not operate to convert the
case into a petition for declaratory relief nor did the judgment place appellant beyond the reach of legal
remedies available under the Naturalization Law.

The order declaring petitioner a citizen in the naturalization proceeding was obviously predicated on two (2)
grounds, namely: (1) that the evidence presented by him in support of his claim that he is a Filipino citizen
is true and reliable; and (2) that the court a quo believed at the time it rendered its decision (August 9,
1960) that it could properly declare petitioner a citizen in the same proceeding should the evidence
presented so warrant, apparently relying on the ruling in Sy Quimsuan v. Republic (92 Phil. 675). which was
favorably cited in a later case (Sen Et. Al. v. Republic, G.R. No. L-6868, April 30, 1955), as follows: jgc:chan roble s.com.p h

"We find no error on the part of the lower court in allowing (petitioner) to present proof regarding his
Philippine citizenship in (naturalization) proceedings when, in his opinion, the evidence in his possession
proves that he has already that status as would make it unnecessary to press further his petition for
naturalization. There is nothing in the law which would prohibit this alternative procedure. In fact, this
course has been followed in a number of cases wherein the very evidence presented to substantiate the
petition for naturalization rendered the latter unnecessary and the court proceeded to dismiss the case after
pronouncement that petitioner is already a Philippine citizen. Such a pronouncement is inevitable if we have
to sanction the petition for dismissal and it is unfair and unjust to quash the proceedings if the claim for
Philippine citizenship is not substantiated."cralaw virtua1aw li bra ry

At the time the lower court rendered its decision of August 9, 1960, declaring petitioner a citizen of the
Philippines. the ruling in the Sy Quimsuan and Sen cases was no longer controlling. The lower court thus
premised that decision on jurisprudence which had already been modified particularly by the case of Suy
Chan v. Republic (G.R. No. 14159, April 18, 1960), which held: jgc:chan rob les.com. ph

"1. Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an
individual. Courts of justice exist for the settlement of justiciable controversies, which imply a given right,
legally demandable and enforceable, an act or omission violative of said right, and a remedy, granted or
sanctioned by law, for said breach of right. As an incident only of the adjudication of the rights of the parties
to a controversy, the court may pass upon, and make a pronouncement relative to, their status. Otherwise,
such a pronouncement is beyond judicial power . . . At times, the law permits the acquisition of a given
status, such as naturalization, by judicial decree. But, there is no similar legislation authorizing the
institution of a judicial proceeding to declare that a given person is part of our citizenry." cralaw virt ua1aw lib rary
The above ruling was reiterated in the case of Yu Chin v. Republic (G.R. No. L-15775, April 29, 1961), where
this Court declared: jgc:chan roble s.com. ph

"The above holding, being the correct exposition and interpretation of the law involved, overrules our
holdings in Pablo y Sen, Et. Al. v. Republic, G.R. No. L-6868, April 30, 1955, and other previous cases, to
the effect that the court can make a declaration that an applicant for naturalization is a Filipino citizen in the
same naturalization proceedings if the evidence so warrants." (The Suy Chan ruling was also quoted with
approval in Santiago v. Commissioner of Immigration, G.R. No. L-14653, January 31, 1963)

It would seem therefore that the decision of August 9 was the result of an erroneous appreciation of the
applicable jurisprudence at the time. Even so, however, the error did not necessarily render the decision
void, and the same would acquire force and effect unless reversed on appeal or set aside on other
recognized grounds, such as fraud in its procurement.

One such ground is that relied upon by the Solicitor General here, namely, the fact that in 1948 petitioner
executed an affidavit which reads as follows: jgc:chan roble s.com.p h

"That I am duly registered under Alien Certificate of Registration No. 162732-V, issued at San Fernando, La
Union on May 30, 1947;

"That in the year 1927, I was admitted or landed here in the Philippines and was issued LCR No. 76410-
45575 issued at Manila on December 16, 1927;

"That even if I was admitted as a son of P.I. citizen, I have always exercised my rights as a citizen or
subject of China for the reason that I was already at the age of majority when I first arrived in this country
and that I have always registered under the Immigration Act of 1940;

"That if I am considered as a Filipino citizen as shown in my LRC Co., I hereby renounce all right and
privileges accorded to a Filipino Citizen and therefore consider myself now as a citizen or subject of China."
virtua 1aw lib rary
cralaw

The contents of the aforesaid affidavit were not revealed by appellee in his petition and his failure to do so
led the court to declare him a citizen. If appellee had really executed the said affidavit there can be no doubt
that the court a quo correctly set aside its previous decision. But appellee has raised the genuineness and
due execution of the affidavit as an issue, and in fact denied the same, as well as the truth of its contents, in
his opposition to the Solicitor General’s principal motion below.

The stipulation of facts, upon which the parties agreed to submit the case for resolution, does not show any
admission by appellee of the genuineness and due execution of the affidavit in question. All that was
stipulated on in this respect is that when the Solicitor General filed his petition to set aside the decision of
August 9, the affidavit was attached thereto as an annex. When the court a quo set aside its original
decision without affording appellee a chance to present evidence to rebut the Republic’s allegation of
fraudulent representation by him, it virtually deprived him of his day in court.

WHEREFORE, the order appealed from is set aside and the case remanded to the court below for further
proceedings in connection with the motion of the Solicitor General to set aside and annul the decision
declaring petitioner a Filipino citizen. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Bengzon, J.P., Zaldivar, Sanchez, Ruiz Castro, Angeles and
Fernando, JJ., concur.

Dizon, J., concurs in the result.