ACTIONS TO CHALLENGE CANDIDACY OF A CANDIDATE OR DISQUALIFY CANDIDATE Codilla vs De Venecia .. Sergio G.

Amora vs Comelec 9 Munder vs Comelec 12 Fernando Gonzalez vs Comelec .... 14 Loong vs Comelec 21 Perez v Comelec . 23 Ashary Alauya vs Judge Casan .. 25 Teodora Sobejana vs Comelec .. 26 Lopez vs Comelec 31 Justimbaste v Comelec 32 DISQUALIFICATIONS UNDER THE LOCAL GOVERNMENT CODE (RA 7160) Marquez Jr. vs Comelec 34 Mercado vs Manzano & Comelec ..36 Valles vs Lopez ..39 AASJS Member vs Secretary of Justice ..42 Frivaldo vs Comelec(1989) ..43

Frivaldo vs Comelec(1996) ..45 Laceda vs Limena 52 Adormeo vs Comelec 52 Lonzanida vs Comelec 54 Ong vs Alegre 56 Aldovino Jr. vs Comelec . 59

[G.R. No. 150605. December 10, 2002] EUFROCINO M. CODILLA, SR., petitioner, vs. HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as Speaker and Secretary-General of the House of Representatives, respectively, and MA. VICTORIA L. LOCSIN, respondents. DECISION PUNO, J.: In a democracy, the first self-evident principle is that he who has been rejected by the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as Representative of the 4th legislative district of Leyte. The most sophisticated legal alchemy cannot justify her insistence that she should continue governing the people of Leyte against their will. The enforcement of the sovereign will of the people is not subject to the discretion of any official of the land. This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of Representatives to compel them to implement the decision of the Commission on Elections en banc by (a) administering the oath of office to petitioner as the duly-elected Representative of the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding and exercising the said public office on the basis of a void proclamation. The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position of Representative of the 4th legislative district of Leyte during the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City while respondent Locsin was the sitting Representative of the 4th legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with the COMELEC main office a Petition for Disqualification[1] against the petitioner for indirectly soliciting votes from the registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of the Omnibus Election Code. It was alleged that the petitioner used the equipments and vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel and sand to the residents of Kananga and Matagob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him. Attached to the petition are the (a) Affidavits of Basilio Bates,[2] Danilo D. Maglasang,[3] Cesar A. Laurente;[4] (b) Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera;[5] (c) Extract Records from the Police Blotter executed by Police Superintendent Elson G. Pecho;[6] and (d) Photographs showing government dump trucks, haulers and surfacers and portions of public roads allegedly filled-in and surfaced through the intercession of the respondent.[7] The case was docketed as SPA No. 01-208 and assigned to the COMELECs Second Division. On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and reception of evidence on the disqualification case to the Office of the Regional Director of Region VIII.[8] On May 11, 2001, the COMELEC Second Division sent a telegram informing the petitioner that a disqualification case was filed against him and that the petition was remanded to the Regional Election Director for investigation.[9]

At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the disqualification case. Consequently, petitioner was included in the list of candidates for district representative and was voted for. The initial results showed that petitioner was the winning candidate. On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor in SPA No. 128 and filed a Most Urgent Motion to Suspend Proclamation of Respondent *herein petitioner+ with the COMELEC Second Division.*10+ Respondent Locsin alleged that the evidence on record against respondent is very strong and unless rebutted remains. She urged the Commission to set the hearing of the disqualification case and prayed for the suspension of the proclamation of the respondent so as not to render the present disqualification case moot and academic. A copy of the Motion was allegedly served on petitioner by registered mail but no registry receipt was attached thereto.[11] On May 18, 2001, respondent Locsin filed a Second Most Urgent Motion to Suspend Proclamation of Respondent stating there is clear and convincing evidence showing that the respondent is undoubtedly guilty of the charges against him and this remains unrebutted by the respondent. A copy of the Motion was sent to the petitioner and the corresponding registry receipt was attached to the pleading.[12] The records, however, do not show the date the petitioner received the motion. On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte Order[13] directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of petitioner in case he obtains the highest number of votes by reason of the seriousness of the allegations in the petition for disqualification.*14+ It also directed the Regional Election Director to speed up the reception of evidence and to forward immediately the complete records together with its recommendation to the Office of the Clerk of the Commission.[15] As a result, petitioner was not proclaimed as winner even though the final election results showed that he garnered 71,350 votes as against respondent Locsins 53,447 votes.*16+ At the time that the COMELEC Second Division issued its Order suspending his proclamation, the petitioner has yet to be summoned to answer the petition for disqualification. Neither has said petition been set for hearing. It was only on May 24, 2001 that petitioner was able to file an Answer to the petition for his disqualification with the Regional Election Director, alleging that: (a) he has not received the summons together with the copy of the petition; (b) he became aware of the matter only by virtue of the telegram sent by the COMELEC Second Division informing him that a petition was filed against him and that the Regional Election Director was directed to investigate and receive evidence therewith; and (c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own instance.[17] Petitioner further alleged that the maintenance, repair and rehabilitation of barangay roads in the municipalities of Matag-ob and Kananga were undertaken without his authority, participation or directive as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B. Borinaga;[18] (b) Copy of the Excerpt from the Minutes of the Regular Session of Barangay Monterico;[19] (c) Affidavit of Wilfredo A. Fiel;[20] (d) Supplemental Affidavit of Wilfredo A. Fiel;[21] and (e) Affidavit of Arnel Y. Padayao.[22] On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,[23] alleging that (a) he did not receive a copy of the Motion to Suspend his Proclamation and hence, was

denied the right to rebut and refute the allegations in the Motion; (b) that he did not receive a copy of the summons on the petition for disqualification and after personally obtaining a copy of the petition, filed the requisite answer only on May 24, 2001; and (c) that he received the telegraph Order of the COMELEC Second Division suspending his proclamation only on May 22, 2001. He attached documentary evidence in support of his Motion to Lift the Suspension of his proclamation, and requested the setting of a hearing on his Motion.[24] On May 30, 2001, an oral argument was conducted on the petitioners Motion and the parties were ordered to submit their respective memoranda.[25] On June 4, 2001, petitioner submitted his Memorandum[26] in support of his Motion assailing the suspension of his proclamation on the grounds that: (a) he was not afforded due process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is patently inexistent for the purpose of suspending his proclamation. He prayed that his proclamation as winning congressional candidate be expediently made, even while the disqualification case against him continue upon due notice and hearing. He attached the following additional evidence in his Memorandum: (a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre;[27] (b) Certification issued by Elena S. Aviles, City Budget Officer;[28] (c) Copy of certification issued by Wilfredo A. Fiel, City Engineer of Ormoc;[29] (d) Joint Affidavit of Antonio Patenio and Pepito Restituto;[30] and (e) Affidavits of Demetrio Brion,[31] Igmedio Rita[32] and Gerardo Monteza.[33] Respondent Locsins memorandum also contained additional affidavits of his witnesses.[34] Petitioners Motion to Lift the Order of Suspension, however, was not resolved. Instead, on June 14, 2001, the COMELEC Second Division promulgated its Resolution[35] in SPA No. 01-208 which found the petitioner guilty of indirect solicitation of votes and ordered his disqualification. It directed the immediate proclamation of the candidate who garnered the highest number of votes xxx. A copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in the afternoon of the following day.[36] By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray even before said Resolution could gain finality. On June 15, 2001, respondent Locsin was proclaimed as the duly elected Representative of the 4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Member of the House of Representatives stating that MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes representing the highest number of votes legally cast in the legislative district for said office.*37+ Respondent Locsin took her oath of office on June 18, 2001 and assumed office on June 30, 2001. On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for Reconsideration[38] from the June 14, 2001 Resolution of the COMELEC Second Division which ordered his disqualification, as well as an Addendum to the Motion for Reconsideration.[39] Petitioner alleged in his Motion for Reconsideration that the COMELEC Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest vote getter. Respondent Locsin and her

co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion for Reconsideration.[40] On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity of Proclamation,[41] docketed as SPC No. 01-324, assailing the validity of the proclamation of respondent Locsin who garnered only the second highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the Commission lost jurisdiction to hear and decide the case because of the proclamation of Locsin and that any question on the election, returns, and qualification of Locsin can only be taken cognizance of by the House of Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in the first instance by a Division of the Commission and not directly by the Commission en banc; and (3) the proclamation of Locsin was valid because she received the highest number of valid votes cast, the votes of Codilla being stray. On June 28, 2001, petitioner filed an Urgent Manifestation[42] stating that he was deprived of a fair hearing on the disqualification case because while the documentary evidence adduced in his Memorandum was in support of his Motion for the lifting of the suspension of his proclamation, the COMELEC Second Division instead ruled on the main disqualification case. In consonance with his prayer that a full-dress hearing be conducted on the disqualification case, he submitted Affidavits of additional witnesses[43] which he claims would refute and substantially belie the allegations of petitioners/intervenors witnesses. A Reply,*44+ Rejoinder*45+ and Sur-Rejoinder[46] were respectively filed by the parties. Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for declaration of nullity in SPC No. 01-324 were submitted for resolution. From the records, it appears that initially, a Resolution penned by Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the petition for declaration of nullity for lack of jurisdiction and denying the motion for reconsideration filed by petitioner Codilla.[47] Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting opinions[48] to the Javier resolution. It bears emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division which ordered the disqualification of petitioner but after considering the additional evidence presented by the latter, he concluded that the totality of the evidence was clearly in petitioners favor. Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second Division, also dissented and voted to grant Codillas motion for reconsideration on the ground that *T+he people of Leyte have spoken and I respect the electorates will. x x x. *49+ On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a Vote and Opinion and Summary of Votes reversing the resolution of the Second Division and declaring the proclamation of respondent Locsin as null and void. The dispositive portion reads: JUDGMENT WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to REVERSE the resolution of the Commission (Second Division) promulgated on June 1, 2001,

disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin. Accordingly: 1. On the Motion for Reconsideration of the disqualification resolution against Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA No. 01-208), I vote: (a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M. Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for insufficiency of evidence; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void; (c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for (t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent and the concurrent order for the Provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated o June 14, 2001, that the votes of respondent Codilla are considered stray and invalid said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth Legislative district of Leyte to comply with its ministerial duty to proclaim the candidate who garnered the highest number of votes in the elections for that position; and (f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth legislative district of Leyte and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance; and 2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin (SPC No. 01-324), I vote: (a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin, the proclamation being violative of election laws, established jurisprudence, and resolutions of the Commission on Elections; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void;

(c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, for (t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent and the concurrent order for the provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of respondent Codilla are considered stray and invalid said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth legislative district of Leyte he (sic) having garnered the highest number of votes in the elections for the position; and (f) to order respondent Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth Legislative district of Leyte and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance. Summary of Votes Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for Reconsideration of Codilla and reverse the disqualification Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and as an inevitable consequence, in voting to grant the petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the verdict/opinion of the Chairman and the three (3) Commissioners taken together now stands, as it is, the MAJORITY DECISION of the Commission En Banc in both cases; and the Resolution submitted by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the Commission En Banc in both cases. The MAJORTIY DECISION was arrived at after proper consultation with those who joined the majority. The Chairman and the three (3) Commissioners comprising the majority decided that no one will be assigned to write a Majority Decision. Instead, each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman submitted separate opinions. Commissioner Lantion wrote an explanation on his vote.*50+ The aforequoted judgment was adopted in a Vote of Adoption signed by Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr.[51] Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she filed a Comment and Manifestation*52+ with the COMELEC en banc questioning the procedure and the manner by which the decision was issued. In addition, respondent Locsin requested and was issued an opinion by House of Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to nullify the proclamation of respondent Locsin after she had taken her oath and assumed office since it is the HRET

which is the sole judge of election, returns and qualifications of Members of the House.[53] Relying on this opinion, respondent Locsin submitted a written privileged speech to the House during its regular session on September 4, 2001, where she declared that she will not only disregard but will openly defy and disobey the COMELEC en banc resolution ordering her to vacate her position.[54] On September 6, 2001, the COMELEC en banc issued an Order[55] constituting the members of the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise ordered the Board to reconvene and proclaim the candidate who obtained the highest number of votes in the district, as the duly-elected Representative of the Fourth Legislative district of Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning Candidate for Member of the House of Representatives x x x, based on the city/municipal certificates of canvass submitted beforehand to the previous Provincial Board of Canvassers of Leyte x x x. On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of Canvassers as the duly-elected Representative of the 4th legislative district of Leyte, having obtained a total of 71,350 votes representing the highest number of votes cast in the district.[56] On the same day, petitioner took his oath of office before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc City.[57] On September 14, 2001, petitioner wrote the House of Representatives, thru respondent Speaker De Venecia, informing the House of the August 29, 2001 COMELEC en banc resolution annulling the proclamation of respondent Locsin, and proclaiming him as the duly-elected Representative of the 4th legislative district of Leyte.[58] Petitioner also served notice that I am assuming the duties and responsibilities as Representative of the fourth legislative district of Leyte to which position I have been lawfully elected and proclaimed. On behalf of my constituents, I therefore expect that all rights and privileges intended for the position of Representative of the fourth legislative district of Leyte be accorded to me, including all physical facilities and staff support. On the basis of this letter, a Memorandum*59+ dated October 8, 2001 was issued by Legal Affairs Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that there is no legal obstacle to complying with the duly promulgated and now final and executory COMELEC Decision of August 29, 2001 x x x. These notwithstanding, and despite receipt by the House of Representatives of a copy of the COMELEC en banc resolution on September 20, 2001,[60] no action was taken by the House on the letter-appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter[61] addressed to respondent Speaker De Venecia, dated October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of Representatives to act decisively on the matter in order that petitioner can avail of whatever remedy is available should their action remain unfavorable or otherwise undecisive. In response, Speaker De Venecia sent a letter[62] dated October 30, 2001, stating that: We recognize the finality of the COMELEC decision and we are inclined to sustain it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech, inserted in the HOUSE Journal dated September 4, 2001, that she shall openly defy and disobey

the COMELEC ruling. This ultimately means that implementing the decision would result in the spectacle of having two (2) legislators occupying the same congressional seat, a legal situation, the only consideration, that effectively deters the HOUSEs liberty to take action. In this light, the accepted wisdom is that the implementation of the COMELEC decision is a matter that can be best, and with finality, adjudicated by the Supreme Court, which, hopefully, shall act on it most expeditiously. (emphases supplied) Hence, the present petition for mandamus and quo warranto. Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final and executory for failure of respondent Locsin to appeal therefrom, it has become the ministerial duty: (1) of the Speaker of the House of Representatives, as its Administrative Head and Presiding Officer, to implement the said resolution of the COMELEC en banc by installing him as the duly-elected Representative of the 4th legislative district of Leyte; and (2) of the Secretary-General, as official custodian of the records of the House, to formally register his name in the Roll of Members of the House and delete the name of respondent Locsin therefrom. Petitioner further contends that respondent Locsin has been usurping and unlawfully holding the public office of Representative of the 4th legislative district of Leyte considering that her premature proclamation has been declared null and void by the COMELEC en banc. He alleges that the action or inaction of public respondents has deprived him of his lawful right to assume the office of Representative of the 4th legislative district of Leyte. In his Comment,[63] public respondent Speaker De Venecia alleged that mandamus will not lie to compel the implementation of the COMELEC decision which is not merely a ministerial duty but one which requires the exercise of discretion by the Speaker of the House considering that: (1) it affects the membership of the House; and (2) there is nothing in the Rules of the House of Representatives which imposes a duty on the House Speaker to implement a COMELEC decision that unseats an incumbent House member. In his Comment,[64] public respondent Secretary-General Nazareno alleged that in reading the name of respondent Locsin during the roll call, and in allowing her to take her oath before the Speaker-elect and sit as Member of the House during the Joint Session of Congress, he was merely performing official acts in compliance with the opinions[65] rendered by House of Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and void since it is the HRET which is the sole judge of all election, returns and qualifications of Members of the House. He also contends that the determination of who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus, be compelled by mandamus. Respondent Locsin, in her Comment,[66] alleged that the Supreme Court has no original jurisdiction over an action for quo warranto involving a member of the House of Representatives for under Section 17, Article VI of the Constitution it is the HRET which is the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives. She likewise asserts that this Court cannot issue the writ of mandamus against a co-equal legislative department without grossly violating the principle of separation of powers. She contends that the act of recognizing who should be seated as a bona fide member of the House of Representatives is not a

ministerial function but a legislative prerogative, the performance of which cannot be compelled by mandamus. Moreover, the prayer for a writ of mandamus cannot be directed against the Speaker and Secretary-General because they do not have the authority to enforce and implement the resolution of the COMELEC. Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and void for lack of jurisdiction. First, it should have dismissed the case pending before it after her proclamation and after she had taken her oath of office. Jurisdiction then was vested in the HRET to unseat and remove a Member of the House of Representatives. Second, the petition for declaration of nullity is clearly a preproclamation controversy and the COMELEC en banc has no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be heard by a COMELEC Division. Third, the questioned decision is actually a hodge-podge decision because of the peculiar manner in which the COMELEC disposed of the case. Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been categorically affirmed by the HRET when it dismissed the quo warranto case filed against her, docketed as HRET Case No. 01-043, entitled Paciano Travero vs. Ma. Victoria Locsin, on the ground that the allegations stated therein are not proper grounds for a petition for quo warranto against a Member of the House of Representatives under section 253 of the Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition was filed late.*67+ In his Reply,[68] petitioner asserts that the remedy of respondent Locsin from the COMELEC decision was to file a petition for certiorari with the Supreme Court, not to seek an opinion from the Chief Legal Counsel of the House of Representatives; that the HRET has no jurisdiction over a petition for declaration of nullity of proclamation which is based not on ineligibility or disloyalty, but by reason that the candidate proclaimed as winner did not obtain the highest number of votes; that the petition for annulment of proclamation is a pre-proclamation controversy and, hence, falls within the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 881[69] and section 3, Article IX (C) of the Constitution; that respondent Speaker De Venecia himself recognizes the finality of the COMELEC decision but has decided to refer the matter to the Supreme Court for adjudication; that the enforcement and implementation of a final decision of the COMELEC involves a ministerial act and does not encroach on the legislative power of Congress; and that the power to determine who will sit as Member of the House does not involve an exercise of legislative power but is vested in the sovereign will of the electorate. The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC Second Division is valid; (b) whether said proclamation divested the COMELEC en banc of jurisdiction to review its validity; and (c) assuming the invalidity of said proclamation, whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. I Whether the proclamation of respondent Locsin is valid. After carefully reviewing the records of this case, we find that the proclamation of respondent Locsin is null and void for the following reasons:

First. The petitioner was denied due process during the entire proceedings leading to the proclamation of respondent Locsin. COMELEC Resolution Nos. 3402[70] sets the procedure for disqualification cases pursuant to section 68 of the Omnibus Election Code, viz: C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION (1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and the verified petition to disqualify a candidate for lack of qualifications or possessing same grounds for disqualification, may be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. (2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies by any citizen of voting age, or duly registered political party, organization or coalition of political parties against 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: 2.a having given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; 2.b having committed acts of terrorism to enhance his candidacy; 2.c having spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code; 2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code; 2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. x x x x x x xxx (4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the offices concerned shall docket the petition and assign to it a docket number which must be consecutive, according to the order of receipt and must bear the year and prefixed as SPA with the corresponding initial of the name of the office, i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-001; (5) Within three (3) days from filing of the petitions, the offices concerned shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any; (6) The respondent shall be given three (3) days from receipt of summons within which to file his verified answer (not a motion to dismiss) to the petition in ten (10) legible copies, serving a copy thereof upon the petitioner. Grounds for Motion to Dismiss may be raised as an affirmative defense; (7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counter-affidavits and other documentary evidences including their position paper; (8) The hearing must be completed within ten (10) days from the date of the filing of the answer. The hearing officer concerned shall submit to the Clerk of the Commission through the fastest means of communication, his findings, reports and

recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case; (9) Upon receipt of the records of the case of the findings, reports and recommendation of the hearing officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division; (10) The division to whom the case is raffled, shall after consultation, assign the same to a member who shall pen the decision, within five (5) days from the date of consultation. Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any, within three (3) days from the filing of the petition for disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity to answer the allegations in the petition and hear his side. To ensure compliance with this requirement, the COMELEC Rules of Procedure requires the return of the summons together with the proof of service to the Clerk of Court of the COMELEC when service has been completed, viz: Rule 14. Summons x x x xxx

x x x

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. (emphases supplied) In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on the petition for his disqualification. After the elections, petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for the suspension of petitioners proclamation. The Most Urgent Motion contained a statement to the effect that a copy was served to the petitioner through registered mail. The records reveal that no registry receipt was attached to prove such service.[72] This violates COMELEC Rules of Procedure requiring notice and service of the motion to all parties, viz: Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion. For good cause shown, the motion may be heard on shorter notice, especially on matters which the Commission or the Division may dispose of on its own motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof of service of notice thereof, except when the Commission or a Division is satisfied that the rights of the adverse party or parties are not affected. Respondents Most Urgent Motion does not fall under the exceptions to notice and service of motions. First, the suspension of proclamation of a winning candidate is not a matter which the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No. 6646*73+ requires that the suspension must be upon motion by the complainant or any intervenor, viz: Section 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 (COMELEC) shall continue with the trial or 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. (emphases supplied) Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the lack of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of paper.[74] It cannot be acted upon by the COMELEC Second Division. On May 18, 2001 at exactly 5:00 p.m.,[75] respondent Locsin filed a Second Most Urgent Motion for the suspension of petitioners proclamation. Petitioner was served a copy of the Second Motion again by registered mail. A registry receipt[76] was attached

Section 5. Return.- When the service has been completed by personal service, the server shall give notice thereof, by registered mail, to the protestant or his counsel and shall return the summons to the Clerk of Court concerned who issued it, accompanied with the proof of service. Section 6. Proof of Service.- Proof of service of summons shall be made in the manner provided for in the Rules of Court in the Philippines. Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case. (a) Petitioner was not notified of the petition for his disqualification through the service of summons nor of the Motions to suspend his proclamation. The records of the case do not show that summons was served on the petitioner. They do not contain a copy of the summons allegedly served on the petitioner and its corresponding proof of service. Furthermore, private respondent never rebutted petitioners repeated assertion that he was not properly notified of the petition for his disqualification because he never received summons.[71] Petitioner claims that prior to receiving a telegraphed Order from the COMELEC Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his proclamation, he was never summoned nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of the petition and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC Regional Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001. More, the proclamation of the petitioner was suspended in gross violation of section 72 of the Omnibus Election Code which provides:

evidencing service of the Second Most Urgent Motion to the petitioner but it does not appear when the petitioner received a copy thereof. That same day, the COMELEC Second Division issued an Order suspending the proclamation of petitioner. Clearly, the petitioner was not given any opportunity to contest the allegations contained in the petition for disqualification. The Order was issued on the very same day the Second Most Urgent Motion was filed. The petitioner could not have received the Second Most Urgent Motion, let alone answer the same on time as he was served a copy thereof by registered mail. Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning candidates guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding that evidence of petitioners guilt is strong. Its only basis in suspending the proclamation of the petitioner is the seriousness of the allegations in the petition for disqualification. Pertinent portion of the Order reads: Without giving due course to the petition xxx the Commission (2nd Division), pursuant to Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 xxx and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders.*77+ (emphases supplied) We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the COMELEC Second Division gravely abused its power when it suspended his proclamation. (b) The COMELEC Second Division did not give ample opportunity to the petitioner to adduce evidence in support of his defense in the petition for his disqualification. All throughout the proceeding, no hearing was conducted on the petition for disqualification in gross violation of section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to continue with the trial or hearing of the action, inquiry, or protest. This is also in violation of COMELEC Resolution No. 3402 requiring the Regional Election Director to complete the hearing and reception of evidence within ten (10) days from the filing of the Answer, and to submit his findings, reports, and recommendations within the five (5) days from completion of the hearing and the reception of evidence. Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001. Although an oral argument on this Motion was held, and the parties were allowed to file their respective memoranda, the Motion was not acted upon. Instead, the COMELEC Second Division issued a Resolution on the petition for disqualification against the petitioner. It was based on the following evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties. On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension cannot be substituted for the hearing in the disqualification case. Although intrinsically linked, it is not to be supposed that the evidence of the parties in the main disqualification case are the same as those in the Motion to Lift the Order of Suspension. The parties may have other evidence which they may deem proper to present only on the hearing for the disqualification case. Also, there may be evidence

which are unavailable during the hearing for the Motion to Lift the Order of Suspension but which may be available during the hearing for the disqualification case. In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his Motion to Lift the Order of Suspension. It was not intended to answer and refute the disqualification case against him. This submission was sustained by the COMELEC en banc. Hence, the members of the COMELEC en banc concluded, upon consideration of the additional affidavits attached in his Urgent Manifestation, that the evidence to disqualify the petitioner was insufficient. More specifically, the ponente of the challenged Resolution of the COMELEC Second Division held: Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second Division) concerns only the incident relating to the Motion to Lift Order of Suspension of Proclamation. It also appears that the order for the submission of the parties respective memoranda was in lieu of the parties oral argument on the motion. This would explain the fact that Codillas Memorandum refers mainly to the validity of the issuance of the order of suspension of proclamation. There is, however, no record of any hearing on the urgent motion for the suspension of proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by Codilla that the Members of the Commission (Second Division) and other Members of the Commission en banc had the opportunity to consider Codillas affidavits. This time, Codilla was able to present his side, thus, completing the presentation of evidentiary documents from both sides.*78+ (emphases supplied) Indeed, careful reading of the petitioners Memorandum shows that he confined his arguments in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised the following issues: (a) he was utterly deprived of procedural due process, and consequently, the order suspending his proclamation is null and void; (b) the said order of suspension of proclamation has no legal and factual basis; and (c) evidence of guilt on his part is patently inexistent for the purpose of directing the suspension of his proclamation.[79] He urged the COMELEC Second Division to conduct a full dress hearing on the main disqualification case should the suspension be lifted.[80] (c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not based on substantial evidence. The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly observed: Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided evidence at hand, the result was predictable. The Commission (Second Division) had no choice. Codilla was disqualified.*81+ Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from the petitioner, failed to prove the gravamen of the offense for which he was charged.[82] Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads:

Section 68. Disqualifications.- 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 of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing official functions, xxx shall be disqualified from continuing as candidate, or if he has been elected, from holding office To be disqualified under the above-quoted provision, the following elements must be proved: (a) the candidate, personally or through his instructions, must have given money or other material consideration; and (b) the act of giving money or other material consideration must be for the purpose of influencing, inducing, or corrupting the voters or public officials performing electoral functions. In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the petition reads: *T+he respondent *herein petitioner+, within the election period, took advantage of his current elective position as City Mayor of Ormoc City by illegally and unlawfully using during the prohibited period, public equipments and vehicles belonging to and owned by the City Government of Ormoc City in extracting, hauling and distributing gravel and sand to the residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of the 4th Congressional District of Leyte, which acts were executed without period, and clearly for the illicit purpose of unduly inducing or directly corrupting various voters of Kananga and Matag-ob, within the 4th legislative district of Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their votes for said respondent.*83+ The affidavits relied upon by the COMELEC Second Division failed to prove these allegations. For instance, Cesar A. Laurente merely stated that he saw three (3) tenwheeler dump trucks and a Hyundai Payloader with the markings Ormoc City Government extracting and hauling sand and gravel from the riverbed adjacent to the property owned by the Codilla family.[84] Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel unloaded by the white trucks.[85] On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of Ormoc assigned to check and record the delivery of sand and gravel for the different barangays in Ormoc, stated as follows: 3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the source of the sand and gravel. I inquired why we had to go to Kananga but Engr. Padayao said that its not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the family of Mayor Codilla. We were to deliver sand and gravel to whoever requests from Mayor Codilla.*86+ Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner. He alleged that on April 18, 2001, a white truck with the marking City Government of Ormoc came to his lot at Montebello, Kananga, Leyte and unloaded

mixed sand and that the driver of the truck told him to vote for Codilla as a (sic) congressman during election.*87+ His statement is hearsay. He has no personal knowledge of the supposed order of the petitioner to distribute gravel and sand for the purpose of inducing the voters to vote for him. The same could be said about the affidavits of Randy T. Merin,[88] Alfredo C. De la Pea,[89] Miguel P. Pandac,[90] Paquito Bregeldo, Cristeta Alferez , Glicerio Rios,[91] Romulo Alkuino, Sr.,[92] Abner Casas,*93+ Rita Trangia,*94+ and Judith Erispe*95+ attached to respondent Locsins Memorandum on the Motion to Lift the Suspension of Proclamation. Also valueless are the affidavits of other witnesses[96] of respondent Locsin, all similarly worded, which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area where the cockfights were to be held. These allegations are extraneous to the charge in the petition for disqualification. More importantly, these allegations do not constitute a ground to disqualify the petitioner based on section 68 of the Omnibus Election Code. To be sure, the petition for disqualification also ascribed other election offenses against the petitioner, particularly section 261 of the Omnibus Election Code, viz: Section 261. Prohibited Acts.- The following shall be guilty of an election offense: (a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or make or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community in order to induce anyone or the public in general, to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign.- Any person who uses under any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity x x x. However, the jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction.[97] They are criminal and not administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election Code, the power of the COMELEC is confined to the conduct of preliminary investigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the regular courts of justice, viz: Section 265. Prosecution.- The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months

from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. x x x x x x xxx Section 268. Jurisdiction.- The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceeding for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. The COMELEC Second Division grievously erred when it decided the disqualification case based on section 261 (a) and (o), and not on section 68 of the Omnibus Election Code. (d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent Locsin was done with undue haste. The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner, and the proclamation of the respondent Locsin, without affording the petitioner the opportunity to challenge the same. In the morning of June 15, 2001, the Provincial Board of Canvassers convened, and on the strength of the said Resolution excluding the votes received by the petitioner, certified that respondent Locsin received the highest number of votes. On this basis, respondent Locsin was proclaimed. Records reveal that the petitioner received notice of the Resolution of the COMELEC Second Division only through his counsel via a facsimile message in the afternoon of June 15, 2001[98] when everything was already fait accompli. Undoubtedly, he was not able to contest the issuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is plain and simple denial of due process. The essence of due process is the opportunity to be heard. When a party is deprived of that basic fairness, any decision by any tribunal in prejudice of his rights is void. Second. The votes cast in favor of the petitioner cannot be considered stray and respondent cannot be validly proclaimed on that basis. The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the position of Congressman of the Fourth District of Leyte; and (2) it ordered the immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of the respondent [herein petitioner]. As previously stated, the disqualification of the petitioner is null and void for being violative of due process and for want of substantial factual basis. Even assuming, however, that the petitioner was validly disqualified, it is still improper for the COMELEC Second Division to order the immediate exclusion of votes cast for the petitioner as stray, and on this basis, proclaim the respondent as having garnered the next highest number of votes. (a) The order of disqualification is not yet final, hence, the votes cast in favor of the petitioner cannot be considered stray.

Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified candidate to be considered stray. Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides.[99] For in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.[100] This principle applies with greater force in the case at bar considering that the petitioner has not been declared by final judgment to be disqualified not only before but even after the elections. The Resolution of the COMELEC Second Division disqualifying the petitioner did not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions reads: Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings, provisional remedies and special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special Cases a decision or resolution of the Commission en banc shall become final and executory after five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other proceedings, following their promulgation. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. (emphasis supplied) In this wise, COMELEC Resolution No. 4116,[101] issued in relation to the finality of resolutions or decisions in disqualification cases, provides: This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). Special Action cases refer to the following: (a) Petition to deny due course to a certificate of candidacy; (b) Petition to declare a candidate as a nuisance candidate; (c) Petition to disqualify a candidate; and (d) Petition to postpone or suspend an election. Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court; (2) the decision or resolution of a Division on disqualification cases shall become final and executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed; (3) where the ground for disqualification case is by reason of non-residence, citizenship, violation of election laws and other analogous cases and on the day of the election the

resolution has not become final and executory the BEI shall tally and count the votes for such disqualified candidate; (4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as the bona fide candidate shall be immediately executory; (5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. All resolutions, orders and rules inconsistent herewith are hereby modified or repealed. Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division gravely abused its discretion in ordering the immediate disqualification of the petitioner and ordering the exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a timely Motion for Reconsideration shall suspend the execution or implementation of the resolution, viz: Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling. (emphases supplied) (b) Respondent Locsin, as a mere second placer, cannot be proclaimed. More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified.[102] In every election, the peoples choice is the paramount consideration and their expressed will must at all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place.[103] In Domino v. COMELEC,[104] this Court ruled, viz: It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received that (sic) other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among the qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. x x x x x x xxx The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration in favor of the person who has obtained a plurality of votes, and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite

his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the peoples right to elect officials of their choice.*105+ Respondent Locsin proffers a distinction between a disqualification based on personal circumstances such as age, residence or citizenship and disqualification based on election offenses. She contends that the election of candidates later disqualified based on election offenses like those enumerated in section 68 of the Omnibus Election Code should be invalidated because they violate the very essence of suffrage and as such, the votes cast in his favor should not be considered.[106] This contention is without merit. In the recent case of Trinidad v. COMELEC,[107] this Court ruled that the effect of a judgment disqualifying a candidate, after winning the election, based on personal circumstances or section 68 of the Omnibus Election Code is the same: the second placer could not take the place of the disqualified winner. II Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction to review its validity. Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation. She maintains that the COMELEC en banc was been divested of jurisdiction to review the validity of her proclamation because she has become a member of the House of Representatives. Thus, she contends that the proper forum to question her membership to the House of Representatives is the House of Representative Electoral Tribunal (HRET). We find no merit in these contentions. First. The validity of the respondents proclamation was a core issue in the Motion for Reconsideration seasonably filed by the petitioner. In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the COMELEC Second Division erred thus: (1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest vote getter. (emphases supplied) In support of his third assignment of error, petitioner argued that the Second Divisions directive for the immediate proclamation of the second highest vote-getter is premature considering that the Resolution has yet to become final and executory.*108+ Clearly, the validity of respondent Locsins proclamation was made a central issue in the Motion for Reconsideration seasonably filed by the petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue. The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en banc is of no moment. Even without said Petition, the COMELEC en banc could still rule on the nullity of respondents proclamation because it was properly raised in the Motion for Reconsideration.

Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on motion for reconsideration, decisions or resolutions decided by a division, viz: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc. Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides: Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling, or that the said decision, order or ruling is contrary to law. Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling. Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be verified and shall point out specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or resolutions. Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to reconsider a decision, resolution, order or ruling when not pro forma, suspends the running of the period to elevate the matter to the Supreme Court. Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof. (emphases supplied) Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his proclamation and disqualifying him, the COMELEC en banc was not divested of its jurisdiction to review the validity of the said Order of the Second Division. The said Order of the Second Division was yet unenforceable as it has not attained finality; the timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the basis for the assumption in office of the respondent as the duly elected Representative of the 4th legislative district of Leyte. Second. It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the instant case. Respondent contends that having been proclaimed and having taken oath as representative of the 4th legislative district of Leyte, any question relative to her

election and eligibility should be brought before the HRET pursuant to section 17 of Article VI of the 1987 Constitution.[109] We reject respondents contention. (a) The issue on the validity of the Resolution of the COMELEC Second Division has not yet been resolved by the COMELEC en banc. To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter. In Puzon vs. Cua,[110] even the HRET ruled that the doctrinal ruling that once a proclamation has been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an election contest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves. This is because the HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. (b) The instant case does not involve the election and qualification of respondent Locsin. Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo warranto with the HRET. A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the Philippines.[111] In the case at bar, neither the eligibility of the respondent Locsin nor her loyalty to the Republic of the Philippines is in question. There is no issue that she was qualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is directed against one who has been duly elected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation. It is evident that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her premature assumption to office as Representative of the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding. III Whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition for mandamus when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from

the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law.*112+ For a petition for mandamus to prosper, it must be shown that the subject of the petition for mandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof. The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[113] In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representatives representing the 4th legislative district of Leyte is no longer a matter of discretion on the part of the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53, 447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before this Court by respondent Locsin and said Decision has become final and executory. In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land. There is no alternative to the rule of law except the reign of chaos and confusion. IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the duly-elected Representative of the 4th legislative district of Leyte. Public respondent Secretary-General shall likewise register the name of the petitioner in the Roll of Members of the House of Representatives after he has taken his oath of office. This decision shall be immediately executory. SO ORDERED.

[G.R. No. 192280 : January 25, 2011] SERGIO G. AMORA, JR., PETITIONER, VS. COMMISSION ON ELECTIONS AND ARNIELO S. OLANDRIA, RESPONDENTS. DECISION NACHURA, J.: Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of the Rules of Court, seeking to annul and set aside the Resolutions dated April 29, 2010[1] and May 17, 2010,[2] respectively, of the Commission on Elections (COMELEC) in SPA No. 10-046 (DC).cralaw First, the undisputed facts. On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of Candidacy (COC) for Mayor of Candijay, Bohol. At that time, Amora was the incumbent Mayor of Candijay and had been twice elected to the post, in the years 2004 and 2007. To oppose Amora, the Nationalist People's Coalition (NPC) fielded Trygve L. Olaivar (Olaivar) for the mayoralty post. Respondent Arnielo S. Olandria (Olandria) was one of the candidates for councilor of the NPC in the same municipality. On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged that Amora's COC was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his Community Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting competent evidence of his identity. Consequently, Amora's COC had no force and effect and should be considered as not filed. Amora traversed Olandria's allegations in his Answer cum Position Paper.[3] He countered that: 1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy. Effectively, the petition of Olandria is filed out of time; 2. Olandria's claim does not constitute a proper ground for the cancellation of the COC; 3. The COC is valid and effective because he (Amora) is personally known to the notary public, Atty. Granada, before whom he took his oath in filing the document; 4. Atty. Granada is, in fact, a close acquaintance since they have been members of the League of Muncipal Mayors, Bohol Chapter, for several years; and 5. Ultimately, he (Amora) sufficiently complied with the requirement that the COC be under oath. As previously adverted to, the Second Division of the COMELEC granted the petition and disqualified Amora from running for Mayor of Candijay, Bohol.

Posthaste, Amora filed a Motion for Reconsideration[4] before the COMELEC en banc. Amora reiterated his previous arguments and emphasized the asseverations of the notary public, Atty. Granada, in the latter's affidavit,[5] to wit: 1. The COMELEC's (Second Division's) ruling is contrary to the objectives and basic principles of election laws which uphold the primacy of the popular will; 2. Atty. Granada states that while he normally requires the affiant to show competent evidence of identity, in Amora's case, however, he accepted Amora's CTC since he personally knows him; 3. Apart from the fact that Amora and Atty. Granada were both members of the League of Municipal Mayors, Bohol Chapter, the two consider each other as distant relatives because Amora's mother is a Granada; 4. It is a matter of judicial notice that practically everybody knows the Mayor, most especially lawyers and notaries public, who keep themselves abreast of developments in local politics and have frequent dealings with the local government; and 5. In all, the COC filed by Amora does not lack the required formality of an oath, and thus, there is no reason to nullify his COC. Meanwhile, on May 10, 2010, national and local elections were held. Amora obtained 8,688 votes, equivalent to 58.94% of the total votes cast, compared to Olaivar's 6,053 votes, equivalent to only 41.06% thereof. Subsequently, the Muncipal Board of Canvassers of Candijay, Bohol, proclaimed Amora as the winner for the position of Municipal Mayor of Candijay, Bohol.[6] A week thereafter, or on May 17, 2010, in another turn of events, the COMELEC en banc denied Amora's motion for reconsideration and affirmed the resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7) commissioners dissented from the majority ruling. Commissioner Gregorio Larrazabal (Commissioner Larrazabal) wrote a dissenting opinion, which was concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V. Sarmiento. In denying Amora's motion for reconsideration and upholding Olandria's petition for disqualification of Amora, the COMELEC ratiocinated, thus: [Amora] himself admitted in his Motion that the Second Division was correct in pointing out that the CTC is no longer a competent evidence of identity for purposes of notarization. The COC therefore is rendered invalid when [petitioner] only presented his CTC to the notary public. His defense that he is personally known to the notary cannot be given recognition because the best proof [of] his contention could have been the COC itself. However, careful examination of the jurat portion of the COC reveals no assertion by the notary public that he personally knew the affiant, [petitioner] herein. Belated production of an Affidavit by the Notary Public cannot be given weight because such evidence could and should have been produced at the earliest possible opportunity.cralaw

The rules are absolute. Section 73 of the Election Code states: "Section 73. Certificate of Candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein." Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of notarization of an oath are: "Section 2. Affirmation or Oath. - The term `Affirmation' or `Oath' refers to an act in which an individual on a single occasion: (a) appears in person before the notary public; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) avows under penalty of law to the whole truth of the contents of the instrument or document." The required form of identification is prescribed in [S]ection 12 of the same Rules, to wit: "Section 12. Competent Evidence of Identity. - The phrase `competent evidence of identity' refers to the identification of an individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual. x x x." It is apparent that a CTC, which bears no photograph, is no longer a valid form of identification for purposes of Notarization of Legal Documents. No less than the Supreme Court itself, when it revoked the Notarial Commission of a member of the Bar in Baylon v. Almo, reiterated this when it said: "As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized." Seeking other remedies, [Amora] maintained that Section 78 of the Election Code governs the Petition. Said section provides 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."

[Amora] however failed to note that the Petition relies upon an entirely different ground. The Petition has clearly stated that it was invoking Section 73 of the Election Code, which prescribes the mandatory requirement of filing a sworn certificate of candidacy. As properly pointed out by [Olandria], he filed a Petition to Disqualify for Possessing Some Grounds for Disqualification, which, is governed by COMELEC Resolution No. 8696, to wit: "B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION 1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation; xxxx 3. The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be filed in ten (10) legible copies, personally or through a duly authorized representative, by any person of voting age, or duly registered political party, organization or coalition of political parties on the ground that the candidate does not possess all the qualifications as provided for by the Constitution or by existing law or who possesses some grounds for disqualification as provided for by the Constitution or by existing law."cralaw xxxx Finally, we do not agree with [Amora] when he stated that the Second Division's Resolution "practically supplanted congress by adding another ground for disqualification, not provided in the omnibus election code or the local government code. The constitution is very clear that it is congress that shall prescribe the qualifications (and disqualifications) of candidates for local government positions." These grounds for disqualification were laid down in both laws mentioned by [Amora] and COMELEC Resolution 8696.[7] Hence, this petition for certiorari imputing grave abuse of discretion to the COMELEC. On June 15, 2010, we issued a Status Quo Ante Order and directed respondents to comment on the petition. As directed, Olandria and the COMELEC filed their respective Comments[8] which uniformly opposed the petition. Thereafter, Amora filed his Reply.[9] Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the purported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that Section 73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds for disqualification, specifically, the qualifications and disqualifications of elective local officials under the Local Government Code (LGC) and the OEC. Thus, Olandria's petition was filed way beyond the reglementary period of twenty-five (25) days from the date of the filing of the disputed COC.

10

Moreover, Amora maintains that his COC is properly notarized and not defective, and the presentation of his CTC to the notary public to whom he was personally known sufficiently complied with the requirement that the COC be under oath. Amora further alleges that: (1) Olaivar, his opponent in the mayoralty post, and likewise a member of the NPC, is purportedly a fraternity brother and close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of the commissioners of the COMELEC who disqualified him; and (2) Olaivar served as Consultant for the COMELEC, assigned to the Office of Commissioner Ferrer. Olandria and the COMELEC reiterated the arguments contained in the COMELEC en banc resolution of May 17, 2010. Amora's petition is meritorious. We find that the COMELEC ruling smacks of grave abuse of discretion, a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Certiorari lies where a court or any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion.[10] In this case, it was grave abuse of discretion to uphold Olandria's claim that an improperly sworn COC is equivalent to possession of a ground for disqualification. Not by any stretch of the imagination can we infer this as an additional ground for disqualification from the specific wording of the OEC in Section 68, which reads: SEC. 68. Disqualifications. - Any candidate who, in an action or protest in which he is 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 a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws. and of Section 40 of the LGC, which provides: SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship; (e) Fugitives from justice in criminal or 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. It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification as enumerated in the foregoing statutory provisions. Nowhere therein does it specify that a defective notarization is a ground for the disqualification of a candidate. Yet, the COMELEC would uphold that petition upon the outlandish claim that it is a petition to disqualify a candidate "for lack of qualifications or possessing some grounds for disqualification." The proper characterization of a petition as one for disqualification under the pertinent provisions of laws cannot be made dependent on the designation, correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria, respondent herein, is not controlling; the COMELEC should have dismissed his petition outright. A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishment fit for the position of mayor. The distinction between a petition for disqualification and the formal requirement in Section 73 of the OEC that a COC be under oath is not simply a question of semantics as the statutes list the grounds for the disqualification of a candidate. Recently, we have had occasion to distinguish the various petitions for disqualification and clarify the grounds therefor as provided in the OEC and the LGC. We declared, thus: To emphasize, a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.[11]cralaw Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for elective office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Congress.[12] However, laws prescribing qualifications for and disqualifications from office are liberally construed in favor of eligibility since the privilege of holding an office is a valuable one.[13] We cannot overemphasize the principle that where a candidate has received popular

mandate, all possible doubts should be resolved in favor of the candidate's eligibility, for to rule otherwise is to defeat the will of the people.[14] In stark contrast to the foregoing, the COMELEC allowed and confirmed the disqualification of Amora although the latter won, and was forthwith proclaimed, as Mayor of Candijay, Bohol. Another red flag for the COMELEC to dismiss Olandria's petition is the fact that Amora claims to personally know the notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner Larrazabal aptly disposes of the core issue: With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it is proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary Public his Community Tax Certificate. The majority opinion strictly construed the 2004 Rules on Notarial Practice (the "2004 Notarial Rules") when it provided that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.'s [petitioner's] COC valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought to be granted, to wit: Section 2. Affirmation or Oath . - The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion: (a) appears in person before the notary public; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) avows under penalty of law to the whole truth of the contents of the instrument or document. As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn affidavit executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioner's] COC, affirming in his affidavit that he personally knows [petitioner]. [Respondent], on the other hand, presented no evidence to counter Granada's declarations. Hence, Granada['s] affidavit, which narrates in detail his personal relation with [petitioner], should be deemed sufficient. The purpose of election laws is to give effect to, rather than frustrate, the will of the voters. The people of Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the candidates for municipal mayor. To disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004 Notarial Rules will effectively deprive the people who voted for him their rights to vote.

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The Supreme Court's declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken lightly: Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.[15] Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the filing of a COC is mandatory and must comply with the requirements set forth by law.[16] Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath refers: Sec. 2. Affirmation or Oath. -- The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion: (a) appears in person before the notary public; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) avows under penalty of law to the whole truth of the contents of the instrument or document. In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of Amora's victory and proclamation as Mayor of Candijay, Bohol.cralaw WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC) dated April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE. SO ORDERED. EN BANC

G.R. No. 194076

October 19, 2011 Sarip corroborated his allegation that Munder was not a registered voter by presenting a Certification from Amerah M. Hadji Sarip - Election Officer of Bubong, Lanao del Sur that, in the election list, there was no "Alfais T. Munder" born on 7 May 1987.6 He also presented a copy of a Voter Certification of one "Munder, Alfais Tocalo", residing at Rogero, Bubong, Lanao del Sur, whose date of birth was "05/07/1984", and who was registered as a voter on "7/26/2003". The said person was 18 years old at that time.7 On the other hand, petitioner Munders CoC for Mayor contained the name of a candidate as "Munder, Alfais Tocalo", 22 years old, with residence at Barangay Montia-an, Bubong, Lanao del Sur, and whose date of birth was "05-07-1987".8 Capitalizing on the seeming inconsistencies, Sarip argued that the candidate Munder was different from the registered voter Munder, since they had different birth years. Consequently, according to Sarip, Munder did not possess the qualification to run as elective official and should be disqualified. Sarip also maintained that Munder had committed dishonesty and falsity in stating that the latter was a registered voter of Bubong, Lanao del Sur. Sarip filed his Petition for Disqualification pursuant to Resolution No. 8696, Section 4 (B) 1 and argued that he had timely filed the petition. Munder, on the other hand, countered that he was a registered voter of Precinct No. 0033, Barangay Rogero, Municipality of Bubong, Lanao del Sur.9 In the 10 May 2010 elections, Munder won overwhelmingly. Garnering 4,793 votes, he had more than twice the number obtained by Sarip, who came in second with 2,356 votes. The Municipal Board of Canvassers of Bubong, Lanao del Sur, thus proclaimed Munder as mayor on 15 May 2010. He filed his answer on 22 May 2010. In his Answer with Affirmative Defenses,10 Munder denied committing any misrepresentation in his CoC. He also argued that false representations, dishonesty and mockery of justice were not grounds for disqualification of a candidate under Comelec Resolution No. 8696. In effect, he argued that Sarip had availed himself of the wrong remedy and that the latters petition should be treated as a Petition to Deny Due Course to or to Cancel Certificate of Candidacy. At the time Sarip filed his petition, the said period had already lapsed. Munder thus prayed for the dismissal of the formers petition against him. On 29 June 2010, the Comelec Second Division sustained Munders arguments and dismissed Sarips Petition. It agreed with Munder that the grounds invoked by Sarip were not proper for a petition for disqualification, and that the latters petition was actually seeking the purging of Munders CoC. It partly held: ...*I+t appears that the nucleus of petitioners cause of action to sustain his petition are the misrepresentations (respondent not being a registered voter of Municipality of Bubong, Lanao del Sur and the respondent was still a minor when he registered as a voter of the said municipality) allegedly perpetrated by the respondent, and the failure of the respondent to accomplish the formalities of his COC (the respondents failure to indicate his precinct and to affix his thumbprint therein). We view all these disputations raised by the petitioner inappropriate for the petition for disqualification. These are not grounds for the petition for disqualification contemplated by the rules. In quintessence (sic) of the action taken the petitioner is actually seeking the denial or cancellation of the respondents COC invoking false material representation of the respondents qualification(s). However, the filing of a petition under this remedy has a prescriptive

ALFAIS T. MUNDER, Petitioner, vs. COMMISSION ON ELECTIONS AND ATTY. TAGO R. SARIP, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 194160 ATTY. TAGO R. SARIP, Petitioner, vs. ALFAIS T. MUNDER, OLOMODIN M. MACABALANG, JAMAL M. MANUA AND COMMISSION ON ELECTIONS, Respondents. DECISION SERENO, J.: Jurisprudence has clearly established the doctrine that a petition for disqualification and a petition to deny due course to or to cancel a certificate of candidacy, are two distinct remedies to prevent a candidate from entering an electoral race. Both remedies prescribe distinct periods to file the corresponding petition, on which the jurisdiction of the Commission on Elections (Comelec) over the case is dependent. The present case, assailing a resolution of the Comelec En Banc, is not an exception. It must follow the rule set by law and jurisprudential doctrine. The consolidated cases before us stem from a controversy resolved by the Comelec En Banc in SPA No. 10-086(DC) in its Resolution* promulgated on 04 October 2010.1 The Comelec En Banc reversed the earlier Resolution2 of the Comelec Second Division and disqualified petitioner Alfais T. Munder (Munder) from holding office as Mayor of Bubong, Lanao del Sur. The Antecedents In the last national election, which included the election of local elective officials, petitioner Munder ran as mayor of Bubong, Lanao del Sur, and filed his certificate of candidacy (CoC) on 26 November 2009. The last day for filing the certificate of candidacy was on 30 November 2009.3 Under Sec. 4(A)(1) of Comelec Resolution 8696, a petition to deny due course or to cancel a certificate of candidacy must be filed within five days from the last day of the filing of the certificate of candidacy but not later than twentyfive days from the filing thereof.4 Respondent Atty. Tago Sarip ("Sarip") likewise filed a certificate of candidacy and vied for the same position in the same municipality. On 13 April 2010, Sarip filed a Petition for Disqualification5 with the Comelec on the ground that Munder was not a registered voter of Bubong, Lanao del Sur, and that the latters application for candidacy was not accomplished in full.

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period which must be strictly followed. Under the rules, a verified petition to deny due course or to cancel certificate of candidacy may be filed by any person within five (5) days from the last day for the filing of certificate of candidacy but not later than twentyfive (25) days from the filing of certificate of candidacy under Section 78 of the Omnibus Election Code. Pursuant to the above rule, the petitioner has twenty-five (25) days after the filing the assailed COC or until December 21, 2009 to file the petition. Since the instant petition was filed only on March 13, 2010 or one hundred-seven (107) days beyond the reglementary period to file a petition to deny due course or to cancel the respondents COC, the petitioner miserably failed to file his petition within the prescribed period. A petition to deny due course or to cancel a certificate of candidacy filed beyond the required period is filed out of time and may be not entertained. An attempt to circumvent the rules on prescription of period to file a petition to deny due course or to cancel COC in disguise of a petition for qualification will not be countenanced in this jurisdiction. Anent the contention of the petitioner vis-a-vis the failure of the respondent to comply with the formalities of the COC, the law governing the contents of the COC is Section 74 of the Omnibus Election Code. The alleged defect on the COC of the respondent, which is, failure to indicate therein his precinct and his failure to affix his thumbprint are not among those mandatory requirements enumerated under the aforementioned law. Hence, those assailed flaw in the formalities of the respondents COC does not warrant the invalidation of the same. At most, it can only be considered as a minor inadvertence on the part of the respondent which does not necessarily nullify his COC. It has been held that when the law does not provide otherwise, a departure from the requirements of law which has been due to honest mistake or misinterpretation of the law on the part of him who is obligated to observe it and such departure has not been used as a means for fraudulent practices, will he held directory and such departure will be considered a harmless irregularity."11 (Emphases supplied) The outcome was, however, different when the Comelec En Banc, upon Sarips Motion for Reconsideration,12 reversed the ruling of the Second Division and disqualified Munder in its 4 October 2010 Resolution. The Comelec ruled directly on the substantive merit of the case, and not on the propriety of the remedy taken by Sarip. It thus ruled on the question of the continuing possession by Munder of one of the qualifications of the office of the Mayor being a registered voter of the municipality where he runs as a candidate. The Comelec En Banc decided the case on a single issue whether the person described in the CoC and in the Certificate of Live Birth referred to the same person in the Voters Certification, petitioner Alfais Tocalo Munder. The Comelec En Banc ruled on this factual issue, stating that the said persons were not one and the same, as they had different birth years. The Comelec held thus: ...It is difficult to reconcile that the ALFAIS TOCALO MUNDER who filed his COC, showing his intent to run as municipal mayor of Bubong, Lanao del Sur is one and the same person as that of ALFAIS TOCALO MUNDER who registered as voter of Barangay Rogero, Bubong, Lanao del Sur when records show that the ALFAIS TOCALO MUNDER who filed his COC indicated his date of birth as MAY 7, 1987 (as supported by the Certificate of Live Birth issued by the NSO) while the ALFAIS TOCALO MUNDER who registered as voter of Barangay Rogero, Bubong, Lanao del Sur indicated his date of birth as MAY 7, 1984. No person can be born twice.13

The Comelec also disregarded the fact that Munder had already been proclaimed as mayor of Bubong, Lanao del Sur. Consequently, it ruled against him and proceeded to declare him disqualified to hold the office of the mayor, for which he had been elected. The Comelec En Banc held: The Supreme Court has time and again ruled that qualifications for an elective office are continuing requirements and once any of them is lost, title to the office is forfeited. Munder lacking the requisite qualification of being a registered voter, should be removed from office.14 It ordered Munder to vacate the Office of the Mayor, and the elected vice-mayor to assume the position of mayor. It further directed the Department of Interior and Local Government and the Philippine National Police (PNP) to implement the Resolution against Munder. From this Resolution originated the two petitions filed by the two rivals for the mayoral position. At the instance of Munder, we issued on 18 January 2011, a Temporary Restraining Order against the Comelec, DILG and PNP from implementing the 4 October 2010 Resolution of the Comelec removing Munder from the office.15 The impending execution of the Comelecs Resolution created divisiveness and disorder in the municipality of Bubong such that even the military attested that they were on "red alert" due to the volatile political situation in the area brought about by the possible ouster of Munder. The Vice Mayor also prematurely assumed the office of the mayor and allegedly withdrew the Internal Revenue Allocation without a resolution from the Sangguniang Bayan. This aggravated the tension that had already been created by the election dispute between the petitioners of these consolidated petitions. The Court, thus, deemed a TRO justified to prevent disorder and bloodshed in Bubong. In his petition, Munder argues that the Comelec acted without or in excess of its jurisdiction in taking cognizance of Sarips petition which was filed beyond the reglementary period provided by law. Munder claims that Sarip should have instead filed a petition for quo warranto after the formers proclamation as the winning candidate. Munder likewise asserts that the Comelec committed grave abuse of discretion in effectively ruling upon his right to vote, when it attacked his status as a registered voter, in order to disqualify him from the mayoralty office. Sarip, on the other hand, argues that the Comelec En Banc also acted with grave abuse of discretion in not declaring him entitled to assume the office of the municipal mayor of Bubong, Lanao del Sur after the disqualification of respondent Munder. Public respondent Comelec, through the Office of the Solicitor General, chose to file its Comment only with respect to G.R. No. 194160, Sarips Petition. It reiterated the legal doctrine that the second placer cannot be declared a winner in case the candidate who obtained the highest number of votes is disqualified. The OSG opposed Sarips prayer that he, instead of the Vice-Mayor, be installed as Mayor of Bubong, Lanao del Sur. The Issues (1) May a petition filed as a Petition for Disqualification properly invoke, as a ground, that the candidate sought to be disqualified was not a registered voter and thus not be

barred by the earlier prescriptive period applicable to Petition to Deny Due Course to or to Cancel Certificate of Candidacy? (2) Did the Comelec commit grave abuse of discretion in concluding that the Alfais Munder in the voters list is not the same as Alfais Munder the candidate? (3) Does Sarip have the right to be installed as Mayor of Bubong, Lanao del Sur for having placed second in the electoral contest therefor? The Courts Ruling The Comelec has the constitutional mandate to "enforce and administer all laws and regulations relative to the conduct of an election."16 It has the power to create its own rules and regulations, a power it exercised on 11 November 2009 in promulgating Resolution No. 8696, or the "Rules on Disqualification of Cases filed in Connection with the May 10, 2010 Automated National and Local Elections." Section 4 thereof provides for the procedure to be followed in filing the following petitions: 1) Petition to Deny Due Course to or Cancel Certificate of Candidacy; 2) Petition to Declare a Nuisance Candidate, and 3) petition to disqualify a candidate pursuant to Section 68 of the Election Code and petition to disqualify for lack of qualifications or for possessing some grounds for disqualification. Resolution No. 8696 provides for the venue for the filing of the petitions and the period within which they should be filed. The validity of the said Resolution has been recognized by this Court in the fairly recent case of Amora v. Comelec.17 Munder alleges that Sarips petition with the Comelec should be considered as one to deny due course to or to cancel a CoC, and not for disqualification. One of the important differences between the two petitions is their prescriptive periods. For a Petition to Deny Due Course or to Cancel a Certificate of Candidacy, the period to file is within five days from the last day of the filing of the certificate of candidacy, but not later than 25 days from the filing thereof. On the other hand, a petition to disqualify a candidate may be filed at any day after the last day of filing of the certificate of candidacy, but not later than the date of proclamation. It has been argued by Munder, who was earlier sustained by the Comelec Second Division, that the petition for disqualification should be treated as a petition to deny due course to or to cancel a certificate of candidacy, which had already prescribed. We agree with Munder as to the nature of the petition filed by Sarip. The main ground of the said petition is that Munder committed dishonesty in declaring that he was a registered voter of Barangay Rogero, Bubong, Lanao del Sur, when in fact he was not. This ground is appropriate for a Petition to Deny Due Course or to Cancel Certificate of Candidacy. Amora v. Comelec is applicable to the present controversy. In that case, similar to the present one, a mayoralty candidate was disqualified by the Comelec pursuant to a Petition for Disqualification. The petition was filed by one of the candidates for councilor in the same municipality, on the ground that the CoC had not been properly sworn to. Amora won in the election, but was disqualified by the Comelec after he was proclaimed as mayor of Candijay, Bohol. One of the issues clarified in the said case was the

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distinction between a Petition for Disqualification and a Petition to Deny Due Course or to Cancel Certificate of Candidacy. The Court, in effect, held that the Comelec should have dismissed the petition outright, since it was premised on a wrong ground. A Petition for Disqualification has specific grounds different from those of a Petition to Deny Due Course to or to Cancel Certificate of Candidacy. The latter is anchored on the false representation by a candidate as to material information in the CoC.18 For a petition for disqualification, the law expressly enumerates the grounds in Section 68 of Batas Pambansa Blg. 881 as amended, and which was replicated in Section 4(b) of Comelec Resolution No. 8696. The grounds stated by respondent in his Petition for Disqualification that Munder was not qualified to run for not being a registered voter therein was not included in the enumeration of the grounds for disqualification. The grounds in Section 68 may be categorized into two. First, those comprising "prohibited" acts of candidates; and second, the fact of their permanent residency in another country when that fact affects the residency requirement of a candidate according to the law. In the earlier case of Fermin v. Comelec19 , the Court clarified the two remedies that may be availed of by a candidate to prevent another from running in an electoral race. The Court held: The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established residence in the said locality for at least one year immediately preceding the election. Failure to meet the one-year residency requirement for the public office is not a ground for the "disqualification" of a candidate under Section 68. The provision only refers to the commission of prohibited acts and the possession of a permanent resident status in a foreign country as grounds for disqualification. ... To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the [Omnibus Election Code], or Section 40 of the [Local Government Code]. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.20 In Fermin, the Court has debunked the interpretation that a petition for disqualification covers the absence of the substantive qualifications of a candidate (with the exception of the existence of the fact of the candidate's permanent residency abroad). It has, in effect, even struck down a Comelec Resolution - Resolution No. 7800, which enumerated the grounds for a petition for disqualification to include the nonregistration of a candidate as voter in the locality where he or she is running as a candidate. In ruling as such, Resolution No. 7800 which was considered as infringement of the powers of the legislature, the Court reiterated an earlier ruling: A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and

COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC.21 Responding to the above ruling, the Comelecs subsequent Resolution on the same matter deleted the enumerated grounds, interpreted by the Court as improper for a petition for disqualification, found in Comelec Resolution 7800.22 It is thus clear that the ground invoked by Sarip in his Petition for Disqualification against Munder - the latters alleged status as unregistered voter in the municipality - was inappropriate for the said petition. The said ground should have been raised in a petition to cancel Munders CoC. Since the two remedies vary in nature, they also vary in their prescriptive period. A petition to cancel a CoC gives a registered candidate the chance to question the qualification of a rival candidate for a shorter period: within 5 days from the last day of their filing of CoCs, but not later than 25 days from the filing of the CoC sought to be cancelled.23 A petition for disqualification may be filed any day after the last day of the filing of CoC but not later than the date of the proclamation.24 The Comelec Second Division stated that the last day of filing of the CoCs was on 21 December 2009. Thus, the period to file a Petition to Deny Due Course or to Cancel Certificate of Candidacy had already prescribed when Sarip filed his petition against Munder. It was therefore grave abuse of discretion on the part of the Comelec En Banc to gloss over the issue of whether the petition was one for disqualification or for the cancellation of CoC. The nature of the petition will determine whether the action has prescribed, and whether the Commission can take cognizance of the petition. In directly tackling the factual issues without determining whether it can properly take cognizance of the petition, the Comelec En Banc committed grave abuse of discretion. Assuming arguendo that the Comelec En Banc could answer the factual issue of Munders non-registration as a voter in Bubong by considering it as a ground for the disqualification of his candidacy, we find that the Comelec committed grave abuse of discretion in concluding that Munder the voter was not Munder the mayoralty candidate. We observe that the Comelec En Banc relied on the Voter's Certification indicating one Alfaiz Tocalo Munder registering for the first time in 2003, with 7 May 1984 as birth date, and stating therein that he was 18 years old at the time of the registration. We find this evidence insufficient to impeach the fact that he was a registered voter of Bubong, Lanao del Sur. In the first place, the registration was in 2003, while the election was in 2010. The said evidence would not negate the fact that in 2010, he had already attained eligibility to run for mayor. In such a small municipality like Bubong, the likelihood of not being able to know whether one has a namesake, especially when one is running for a public office, is very slim. Sarip should have proved that another Alfais Tocalo Munder is in existence, and that the latter is the registered voter and not herein petitioner. In such a case, Sarip's remedy is not a Petition for Disqualification, but a Petition to Deny Due Course or to Cancel Certificate of Candidacy which must comply with the prescriptive period. Otherwise, his remedy, after Munder has been proclaimed is to file a quo warranto action with the Regional Trial Court to prove that Munder lacks the eligibility required by law.1avvphi1

It may be true that in 2003, Munder, who was still a minor, registered himself as a voter and misrepresented that he was already of legal age. Even if it was deliberate, we cannot review his past political acts in this petition. Neither can the Comelec review those acts in an inappropriate remedy. In so doing, it committed grave abuse of discretion, and the act resulting therefrom must be nullified. With this conclusion, Sarip's petition has become moot. There is no longer any issue of whether to apply the rule on succession to an elective office, since Munder is necessarily established in the position for which the people have elected him. IN VIEW OF THE FOREGOING, G.R. No. 194076 is hereby GRANTED. The Comelec En Banc Resolution dated 4 October 2010 which granted the petition to disqualify Alfais Tocalo Munder as Mayor of Bubong, Lanao del Sur is hereby NULLIFIED and SET ASIDE. The Comelec Second Division Resolution dated 29 June 2010 dismissing the petition for disqualification filed by Atty. Tago R. Sarip against Alfais Tocalo Munder is REINSTATED. G.R. No. 194160 is hereby DISMISSED. For having been rendered moot by this Decision, the Temporary Restraining Order we issued on 18 January 2011 in favor of Alfais Tocalo Munder is hereby made permanent. SO ORDERED. G.R. No. 192856 March 8, 2011

FERNANDO V. GONZALEZ, Petitioner, vs. COMMISSION ON ELECTIONS, RENO G. LIM, STEPHEN C. BICHARA and THE SPECIAL BOARD OF CANVASSERS constituted per Res. dated July 23, 2010 of the Commission on Elections En Banc, Respondents. DECISION VILLARAMA, JR., J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 in relation to Rule 64 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolution1 dated May 8, 2010 of the Commission on Elections (COMELEC) Second Division and Resolution2 dated July 23, 2010 of the Commission En Banc, in SPA No. 10-074 (DC). The facts are uncontroverted. Petitioner Fernando V. Gonzalez and private respondent Reno G. Lim both filed certificates of candidacy for the position of Representative of the 3rd congressional district of the Province of Albay in the May 10, 2010 elections. Lim was the incumbent congressman of the 3rd district while Gonzalez was former Governor of Albay, having been elected to said position in 2004 but lost his re-election bid in 2007. On March 30, 2010, a Petition for Disqualification and Cancellation of Certificate of Candidacy (COC)3 was filed by Stephen Bichara [SPA No. 10-074 (DC)] on the ground that Gonzalez is a Spanish national, being the legitimate child of a Spanish father and a Filipino mother, and that he failed to elect Philippine citizenship upon reaching the age of majority in accordance with the provisions of Commonwealth Act (C.A.) No. 625. It

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was further alleged that Gonzalezs late registration of his certificate of birth with the Civil Registry of Ligao City on January 17, 2006, even if accompanied by an affidavit of election of Philippine citizenship, was not done within a reasonable time as it was in fact registered 45 years after Gonzalez reached the age of majority on September 11, 1961. In his Answer,4 Gonzalez denied having willfully made false and misleading statement in his COC regarding his citizenship and pointed out that Bichara had filed the wrong petition under Section 68 of the Omnibus Election Code (OEC) to question his eligibility as a candidate. Gonzalez also argued that the petition which should have been correctly filed under Section 78 of the OEC was filed out of time. He asserted that he is a Filipino citizen as his Alien Certificate of Registration was issued during his minority. However, he took an Oath of Allegiance to the Republic of the Philippines before the Justice of the Peace in Ligao, Albay on his 21st birthday on September 11, 1961. Since then he had comported himself as a Filipino considering that he is married to a Filipina; he is a registered voter who voted during elections; he has been elected to various local positions; he holds a Philippine passport; and most importantly, he has established his life in the Philippines as a Filipino. Gonzalez contended that he is deemed a natural-born Filipino citizen under the 1987 Constitution which includes in the definition of naturalborn citizens "[t]hose born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority." On May 8, 2010, the COMELECs Second Division issued the assailed resolution which decreed: WHEREFORE, premises considered, we resolve to, as we do hereby, GRANT this Petition. Respondent Fernando Vallejo Gonzalez is hereby declared disqualified to be a candidate for the position of Member of the House of Representatives, 3rd District, Province of Albay, in the forthcoming National and Local Elections on May 10, 2010. SO ORDERED.5 Finding the petition to be both a petition for disqualification and cancellation of COC, the Second Division ruled that the same was filed on time. On the election of Philippine citizenship by Gonzalez, it held that what Gonzalez submitted is a mere photocopy of his oath of allegiance which was not duly certified by the National Statistics Office, and hence there was no compliance with the requirement of filing with the nearest civil registry, the last act required of a valid oath of allegiance under C.A. No. 625. Further, the Second Division found that in the late registration of Gonzalezs birth on January 17, 2006, he declared that he is a citizen of the Philippines; this at best, was his own conclusion, and at worst, conflicts with his purported oath of allegiance for it would have been a superfluity to express his choice of Philippine citizenship by taking the oath of allegiance if he was already a Filipino citizen. And the fact that Gonzalez attended formal schooling in this country, worked in private firms and in the government service, should not take the place of the stringent requirements of constitutional and statutory provisions on acquisition of Philippine citizenship.6 Gonzalez thru counsel received a copy of the aforesaid resolution on May 11, 2010 at 5:20 p.m.7 On even date, Lim petitioned the Provincial Board of Canvassers (PBOC) to consider the votes cast for Gonzalez as stray or not counted and/or suspend his proclamation, citing the Second Divisions May 8, 2010 resolution disqualifying Gonzalez as a candidate for the May 10, 2010 elections.8 The PBOC, however, dismissed the

petition stating that the period for filing of a motion for reconsideration of the COMELEC resolution has not yet lapsed, and hence the same is not yet final and executory.9 Lim appealed the PBOCs dismissal of his petition to the COMELEC (SPC No. 10-006) but his appeal was eventually dismissed after he filed a motion to withdraw the same.10 Based on the results of the counting and canvassing of votes, Gonzalez emerged as the winner having garnered a total of 96,000 votes while Lim ranked second with 68,701 votes. On May 12, 2010, the PBOC officially proclaimed Gonzalez as the duly elected Representative of the 3rd district of Albay. Gonzalez took his oath of office on the same day.11 On May 13, 2010, Bichara filed a Very Urgent Motion to Suspend the Effects of the Proclamation of Fernando V. Gonzalez.12 On May 14, 2010, Gonzalez filed a motion for reconsideration of the May 8, 2010 resolution. Gonzalez reiterated that the Second Divisions finding that Bicharas petition is both a petition for disqualification and to cancel COC is not borne by the petition itself and contrary to Section 68 of the OEC and COMELEC Resolution No. 8696. Applying Section 78 of the OEC which is the proper petition based on alleged deliberate misrepresentation and false statement in the COC, Gonzalez contended that Bicharas petition was filed out of time. It was further argued that the subsequent election, proclamation and taking of oath of office of Gonzalez are events warranting the dismissal of SPA No. 10-074 (DC). Stressing that the voice of the people must be respected in this case, Gonzalez pointed out that his not being a Filipino was never an issue in the previous elections where he ran and won (Ligao City Mayor for three terms and Governor of Albay from 2004-2007). He claimed that the petition filed by Bichara, who ran against Gonzalezs wife, Linda Passi Gonzalez (for re-election as Ligao City Mayor) in the recently concluded elections was indicative of harassment considering that a similar petition for disqualification and cancellation of COC was also filed against his wife by Anna Marie C. Bichara, said to be a sister of the petitioner in SPA No. 10-074 (DC).13 On May 22, 2010, Lim filed a Motion for Leave to Intervene as Petitioner stating that being a candidate for the same position, he has legal interest in the success of the petition in SPA No. 10-074 (DC).14 In its Resolution dated July 23, 2010, the COMELEC En Banc denied the motion for reconsideration and affirmed its finding that Gonzalez failed to prove with sufficient evidence that he had fully complied with the requirements for electing Philippine citizenship under C.A. No. 625. It likewise emphasized that the motion for reconsideration filed by Gonzalez was pro forma and hence it did not suspend the effects of the May 8, 2010 resolution disqualifying him as a candidate, conformably with Sections 1 and 4, Rule 19 of the COMELEC Rules of Procedure in relation to Section 7 of COMELEC Resolution No. 8696. Invoking its power to suspend and set aside the proclamation of winning candidates pursuant to Section 16 of COMELEC Resolution No. 8678 in relation to Section 6 of Republic Act (R.A.) No. 6646,15 the Commission held that the proclamation of Gonzalez by the PBOC was premature and illegal. Finally, the motion to intervene filed by Lim was found to be proper and was accordingly granted. The dispositive portion of the resolution reads: WHEREFORE, premises considered, the Commission (En Banc) RESOLVED to, as it does hereby:

1. ANNUL the invalid proclamation of the respondent Fernando V. Gonzalez as the elected Member of the House of Representative as he is DISQUALIFIED to run and be voted for the position of Member of the House of Representatives in the May 10, 2010 elections; 2. DENY for utter lack of merit the Motion for Reconsideration of respondent FERNANDO V. GONZALEZ; and 3. AFFIRM the Resolution of the Second Division declaring respondent Fernando V. Gonzalez DISQUALIFIED to run and be voted for as such. 4. Immediately CONSTITUTE a Special Provincial Board of Canvassers of Albay who will PROCLAIM RENO G. LIM as the duly elected Member of the House of Representative of the Third District of Albay for being the bona fide candidate who garnered the highest number of votes in the May 10, 2010 elections. SO ORDERED.16 Commissioner Rene V. Sarmiento dissented from the majority ruling denying the motion for reconsideration of Gonzalez, stating that the people of the 3rd District of Albay has already spoken as to who is their choice of Representative in the Lower House of Congress and in case of doubt as to the qualification of the winning candidate, the doubt will be resolved in favor of the will of the people.17 A separate opinion was written by Commissioner Armando C. Velasco stating that the COMELEC no longer has jurisdiction to decide on the matter of the qualifications of Gonzalez, the winning candidate who had already been proclaimed, taken his oath and assumed the office as Representative of the 3rd District of Albay, for which reason the COMELECs jurisdiction ends and that of the House of Representatives Electoral Tribunal (HRET) begins. He likewise disagreed with the majoritys conclusion that Gonzalezs proclamation was invalid considering that: (1) records are bereft of indication that the PBOC had been ordered to suspend the proclamation of Gonzalez; (2) the May 8, 2010 Resolution disqualifying Gonzalez had not yet become final and executory; (3) the date of said resolution was not a previously fixed date as required by Section 6 of COMELEC Resolution No. 8696, as the records do not show that the parties have been informed of said date of promulgation beforehand; and (4) the three-day period for the filing of a motion for reconsideration should be reckoned from the date of receipt by Gonzalez of copy of the resolution which is May 11, 2010, hence the PBOC acted well within its authority in proclaiming Gonzalez. Commissioner Velasco also disagreed with the majority ruling that Gonzalezs motion for reconsideration was pro forma, and maintained that said motion was timely filed which effectively suspended the execution of the May 8, 2010 Resolution. Lastly, he found the order to constitute a Special Provincial Board of Canvassers for the purpose of proclaiming intervenor Lim without basis. Since the May 8, 2010 Resolution was not yet final on election day, the votes cast for Gonzalez cannot be considered stray. Besides, a minority or defeated candidate like Lim cannot be deemed elected to the office in cases where the winning candidate is declared ineligible.18 Gonzalez filed the instant petition on July 29, 2010 while Lim filed a Very Urgent Motion For the Issuance of Writ of Execution which the COMELEC granted on August 5, 2010.19

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On August 18, 2010, Lim was proclaimed by a Special Board of Canvassers and subsequently took his oath of office before Assistant State Prosecutor Nolibien N. Quiambao.20 In a letter dated August 23, 2010, Lim requested Speaker Feliciano R. Belmonte, Jr. for the administration of his oath and registration in the Roll of the House of Representatives representing the 3rd District of Albay. However, Speaker Belmonte refused to grant Lims request saying that the issue of qualification of Gonzalez for the position of Member of the House of Representatives is within the exclusive jurisdiction of the HRET, citing this Courts ruling in Limkaichong v. Commission on Elections21/22. Gonzalez contends that the COMELEC gravely abused its discretion in issuing the assailed resolutions insofar as 1. It would install the Respondent Reno G. Lim as the Third District of Albays Representative even though Lim never won the election, and who never became a legal party in the case; 2. It would hold that the petitioner Gonzalez is not a Filipino citizen; 3. It would go on to convene a "Special Board of Canvassers of Albay" created for the sole purpose of proclaiming the respondent Lim as the actual winner of the May 10 elections in the Third District of Albay; x x x the Commissions resolutions, insofar as it was: 4. Issued with such great speed and haste that its mistakes are glaring; 5. Issued without the required (valid) certification; 6. Insofar as it did not hold that the respondent Reno [G.] Lim had committed more than one act of forum-shopping.23 In his Comment,24 the Solicitor General found no grave abuse of discretion committed by the COMELEC in issuing the assailed resolutions stating that the Commission correctly ruled that Gonzalez is not a natural-born citizen of the Philippines by his failure to perfect his election of Philippine citizenship in accordance with C.A. No. 625 and R.A. No. 562. He likewise adopted the position of the COMELEC that Limkaichong is not applicable to the present case and that the motion for reconsideration filed by Gonzalez was pro forma. The petition presents the following issues for resolution: (1) whether the petition in SPA No. 10-074 (DC) was timely filed; (2) whether Gonzalez was validly proclaimed as the duly elected Representative of the 3rd District of Albay in the May 10, 2010 elections; and (3) whether the COMELEC had lost jurisdiction over the issue of Gonzalezs citizenship. We find the petition meritorious. A petition to cancel a candidates COC may be filed under Section 78 of the OEC which provides:

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 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. (Underlining supplied.) A petition for disqualification of a candidate may also be filed pursuant to Section 68 of the same Code which states: 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. The prohibited acts covered by Section 68 refer to election campaign or political activity outside the campaign period (Section 80); removal, destruction or defacement of lawful election propaganda (Section 83); certain forms of election propaganda (Section 85); violation of rules and regulations on election propaganda through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation, terrorism, use of fraudulent device or other forms of coercion (Section 261 [e]); unlawful electioneering (Section 261 [k]); release, disbursement or expenditure of public funds (Section 261 [v]); solicitation of votes or undertaking any propaganda on the day of the election (Section 261 [cc], sub-par.6). As to the ground of false representation in the COC under Section 78, we held in Salcedo II v. Commission on Elections25 that in order to justify the cancellation of COC, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation", the Court concluded that this refers to qualifications for elective office. Citing previous cases in which the Court interpreted this phrase, we held that Section 78 contemplates statements regarding age,26 residence27 and citizenship or nonpossession of natural-born Filipino status.28 Furthermore, aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to ones qualification for public office.29

Significantly, we pointed out in Salcedo II the two remedies available for questioning the qualifications of a candidate, thus: There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: "(1) Before election, pursuant to Section 78 thereof which provides that: xxx and "(2) After election, pursuant to Section 253 thereof, viz: Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election." (emphasis supplied) The only difference between the two proceedings is that, under Section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under Section 253 may be brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under Section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office.30 (Emphasis supplied.) Clearly, the only instance where a petition questioning the qualifications of a candidate for elective office can be filed before election is when the petition is filed under Section 78 of the OEC. The petition in SPA No. 10-074 (DC) based on the allegation that Gonzalez was not a natural-born Filipino which was filed before the elections, is in the nature of a petition filed under Section 78. The recitals in the petition in said case, however, state that it was filed pursuant to Section 4 (b) of COMELEC Resolution No. 8696 and Section 68 of the OEC to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification. The COMELEC treated the petition as one filed both for disqualification and cancellation of COC, with the effect that Section 68, in relation to Section 3, Rule 25 of the COMELEC Rules of Procedure, is applicable insofar as determining the period for filing the petition. Rule 25 of the COMELEC Rules of Procedure on Disqualification of Candidates provides: Section 1. 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

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who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. xxxx Sec. 3. Period to File Petition. -- The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. (Emphasis supplied.) On the other hand, the procedure for filing a petition for cancellation of COC is covered by Rule 23 of the COMELEC Rules of Procedure, which provides: Section 1. Grounds for Denial of Certificate of Candidacy. -- A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition or political parties on the exclusive ground that any material representation contained therein as required by law is false. Sec. 2. Period to File Petition. The petition must be filed within five (5) days following the last day for the filing of certificate of candidacy. x x x x (Emphasis supplied.) In Loong v. Commission on Elections,31 we categorically declared that the period for filing a petition for cancellation of COC based on false representation is covered by Rule 23 and not Rule 25 of the COMELEC Rules of Procedure. Further, we held that Section 3 of Rule 25 allowing the filing of a petition at any time after the last day for filing of COCs but not later than the date of proclamation, is merely a procedural rule that cannot supersede Section 78 of the OEC. We quote the following pertinent discussion in said case: x x x Section 78 of the same Code states that in case a person filing a certificate of candidacy has committed false representation, a petition to cancel the certificate of the aforesaid person may be filed within twenty-five (25) days from the time the certificate was filed. Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code. We do not agree with private respondent Ututalums contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. xxxx The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy.

Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment. We also do not find merit in the contention of respondent Commission that in the light of the provisions of Section 6 and 7 of Rep. Act No. 6646, a petition to deny due course to or cancel a certificate of candidacy may be filed even beyond the 25-day period prescribed by Section 78 of the Code, as long as it is filed within a reasonable time from the discovery of the ineligibility. Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted: "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." "SEC. 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." It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-day period prescribed by Section 78 of the Code for filing the appropriate action to cancel a certificate of candidacy on account of any false represent-ation made therein. On the contrary, said Section 7 affirms and reiterates Section 78 of the Code. We note that Section 6 refers only to the effects of a disqualification case which may be based on grounds other than that provided under Section 78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6 applicable to disqualification cases filed under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which these disqualification cases may be filed. This is because there are provisions in the Code which supply the periods within which a petition relating to disqualification of candidates must be filed, such as Section 78, already discussed, and Section 253 on petitions for quo warranto. Thus, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code. x x x32 (Additional emphasis supplied.) COMELEC Resolution No. 8696 entitled "Rules on Disqualification Cases Filed in Connection with the May 10, 2010 Automated National and Local Elections" was promulgated on November 11, 2009. Section 4 thereof provides:

SEC. 4. Procedure in filing petitions. For purposes of the preceding sections, the following procedure shall be observed: A. PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY 1. A verified petition to deny due course or to cancel certificate of candidacy may be filed by any person within five (5) days from the last day for the filing of certificate of candidacy but not later than twenty-five (25) days from the filing of certificate of candidacy under Section 78 of the Omnibus Election Code (OEC); xxxx B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION 1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation; xxxx As can be gleaned, Section 4(B) of Resolution No. 8696 allowing a petition to disqualify a candidate based on his lack of qualifications for elective office such as age, residence and citizenship to be filed "on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation" (the period provided in Section 68 of the OEC), instead of the period for filing under Section 78 (not later than twentyfive days from the filing of the certificate of candidacy) is similar to Rule 25 of the COMELEC Rules of Procedure. Following our ruling in Loong v. Commission on Elections,33 we find that Section 4(B) of Resolution No. 8696 represents another attempt to modify by a mere procedural rule the statutory period for filing a petition to cancel COC on the ground of false representation therein regarding a candidates qualifications. Like Rule 25 of the COMELEC Rules of Procedure, Section 4(B) of Resolution No. 8696 would supplant the prescribed period of filing of petition under Section 78 with that provided in Section 68 even if the latter provision does not at all cover the false representation regarding age, residence and citizenship which may be raised in a petition under Section 78. Indeed, if the purpose behind this rule promulgated by the COMELEC allowing a petition to cancel COC based on the candidates non-compliance with constitutional and statutory requirements for elective office, such as citizenship, to be filed even beyond the period provided in Section 78 was simply to remedy a perceived "procedural gap" though not expressly stated in Resolution No. 8696, the Court had already rejected such justification. Thus, we declared in Loong: It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing the misrepresentation. It would seem,

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therefore, that there could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent Commission sees this "gap" in what it calls a procedural gap which, according to it, is unnecessary and should be remedied. At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a definite time within which petitions or protests related to eligibility of candidates for elective offices must be filed, as seen in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called "procedural gap", but it is not for it to prescribe what the law does not provide, its function not being legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for the Legislature to decide and remedy.34 (Emphasis supplied.) In the more recent case of Fermin v. Commission on Elections,35 we stressed that a petition filed under Section 78 must not be interchanged or confused with one filed under Section 68. A petition which is properly a "Section 78 petition" must therefore be filed within the period prescribed therein, and a procedural rule subsequently issued by COMELEC cannot supplant this statutory period under Section 78. We further distinguished the two petitions as to their nature, grounds and effects, to wit: Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused with a "Section 68" petition. They are different remedies, based on different grounds, and resulting in different eventualities. Private respondents insistence, therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court. x x x x Considering that the Dilangalen petition does not state any of these grounds for disqualification, it cannot be categorized as a "Section 68" petition. xxxx

In support of his claim that he actually filed a "petition for disqualification" and not a "petition to deny due course to or cancel a CoC," Dilangalen takes refuge in Rule 25 of the COMELEC Rules of Procedure, specifically Section 1 thereof, to the extent that it states, "[a]ny candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law x x x may be disqualified from continuing as a candidate," and COMELEC Resolution No. 7800 (Rules Delegating to COMELEC Field Officials the Authority to Hear and Receive Evidence in Disqualification Cases Filed in Connection with the May 14, 2007 National and Local Elections x x x xxxx We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC. As aptly observed by the eminent constitutionalist, Supreme Court Justice Vicente V. Mendoza, in his separate opinion in Romualdez-Marcos v. Commission on Elections: xxxx Having thus determined that the Dilangalen petition is one under Section 78 of the OEC, the Court now declares that the same has to comply with the 25-day statutory period for its filing. Aznar v. Commission on Elections and Loong v. Commission on Elections give ascendancy to the express mandate of the law that "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." Construed in relation to reglementary periods and the principles of prescription, the dismissal of "Section 78" petitions filed beyond the 25-day period must come as a matter of course. We find it necessary to point out that Sections 5 and 7 of Republic Act (R.A.) No. 6646, contrary to the erroneous arguments of both parties, did not in any way amend the period for filing "Section 78" petitions. While Section 7 of the said law makes reference to Section 5 on the procedure in the conduct of cases for the denial of due course to the CoCs of nuisance candidates (retired Chief Justice Hilario G. Davide, Jr., in his dissenting opinion in Aquino v. Commission on Elections explains that "the procedure hereinabove provided mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the effects of disqualification cases, [but] can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates x x x."), the same cannot be taken to mean that the 25-day period for filing "Section 78" petitions under the OEC is changed to 5 days counted from the last day for the filing of CoCs. The clear language of Section 78 certainly cannot be amended or modified by the mere reference in a subsequent statute to the use of a procedure specifically intended for another type of action. Cardinal is the rule in statutory construction that repeals by implication are disfavored and will not be so declared by the Court unless the intent of the legislators is manifest. In addition, it is noteworthy that Loong, which upheld the 25day period for filing "Section 78" petitions, was decided long after the enactment of R.A. 6646. In this regard, we therefore find as contrary to the unequivocal mandate of the law, Rule 23, Section 2 of the COMELEC Rules of Procedure x x x.

xxxx As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy." Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain whether the Dilangalen petition filed on April 20, 2007 was well within the restrictive 25-day period. If it was not, then the COMELEC should have, as discussed above, dismissed the petition outright. x x x x36 (Additional emphasis supplied.) Since the petition in SPA No. 10-074 (DC) sought to cancel the COC filed by Gonzalez and disqualify him as a candidate on the ground of false representation as to his citizenship, the same should have been filed within twenty-five days from the filing of the COC, pursuant to Section 78 of the OEC. Gonzales filed his COC on December 1, 2009. Clearly, the petition for disqualification and cancellation of COC filed by Lim on March 30, 2010 was filed out of time. The COMELEC therefore erred in giving due course to the petition. Even assuming arguendo that the petition in SPA No. 10-074 (DC) was timely filed, we find that the COMELEC gravely erred when it held that the proclamation of Gonzalez by the PBOC of Albay on May 12, 2010 was premature and illegal. Section 72 of the OEC, was amended by Section 6 of R.A. No. 6646 which reads: Section 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. (Emphasis supplied.) In its July 23, 2010 Resolution, the COMELEC ruled that the motion for reconsideration of the Second Divisions May 8, 2010 Resolution filed by Gonzalez on May 14, 2010 was pro forma and hence did not suspend the execution of the May 8, 2010 resolution disqualifying him as a candidate. Section 7 of COMELEC Resolution No. 8696 provides: SEC. 7. Motion for reconsideration. A motion to reconsider a Decision, Resolution, Order or Ruling of a Division shall be filed within three (3) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of the Decision, Resolution, Order or Ruling. Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the Presiding Commissioner. The latter shall within two (2) days thereafter, certify the case to the Commission en banc.

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The Clerk of the Commission shall calendar the Motion for Reconsideration for the resolution of the Commission en banc within three (3) days from the certification thereof. Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finality of Decisions or Resolutions provides that (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. Section 2, Rule 19 of the COMELEC Rules of Procedure also states: SEC. 2. Period for Filing Motions for Reconsideration. -- A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling. The Commission En Banc in its July 23, 2010 Resolution said: As found by this Commission, the motion for reconsideration merely mentioned that respondent was already proclaimed as the winning candidate for Representative of the 3rd District of Albay. Nothing was, however, averred nor any document was submitted to attest to the fact that that respondent has complied with all the legal requirements and procedure for the election of Philippine citizenship as laid down in Commonwealth Act No. 625 which specifically requires that the oath of allegiance should be filed with the nearest civil registry.37 We have held that mere reiteration of issues already passed upon by the court does not automatically make a motion for reconsideration pro forma. What is essential is compliance with the requisites of the Rules.38 Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration, or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence, or (3) it failed to substantiate the alleged errors, or (4) it merely alleged that the decision in question was contrary to law, or (5) the adverse party was not given notice thereof.39 In the case at bar, the motion for reconsideration40 filed by Gonzalez failed to show that it suffers from the foregoing defects. Although the motion repeatedly stressed that the people of the Third District of Albay had spoken through the winning margin of votes for Gonzalez that they chose the latter to represent them in the House of Representatives, it also reiterated his position that the petition filed by Bichara is timebarred, adding that it was just an act of political harassment. But the main argument asserts that the evidence of petitioner Bichara was insufficient to justify the Second Divisions ruling that Gonzalez is not a natural-born Filipino and hence disqualified to be a candidate for the position of Member of the House of Representatives. Verily, under prevailing jurisprudence, to successfully challenge herein Gonzalezs disqualification, petitioner in SPA No. 10-074 (DC) must clearly demonstrate that Gonzalezs ineligibility

is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote.41 The COMELEC thus seriously erred in ruling that Gonzalezs motion for reconsideration was pro forma. Petitioners motion for reconsideration of the May 8, 2010 resolution of the Second Division having been timely filed, the said resolution had not become final and executory. Considering that at the time of the proclamation of Gonzalez who garnered the highest number of votes for the position of Representative in the 3rd district of Albay, the said Division Resolution declaring Gonzalez disqualified as a candidate for the said position was not yet final, he had at that point in time remained qualified. Therefore, his proclamation on May 12, 2010 by the PBOC was valid or legal.42 Moreover, the May 8, 2010 resolution cannot as yet be implemented for not having attained finality. Despite recourse to this Court, however, we cannot rule on the issue of citizenship of Gonzalez. Subsequent events showed that Gonzalez had not only been duly proclaimed, he had also taken his oath of office and assumed office as Member of the House of Representatives. We have consistently held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins.43 In Perez v. Commission on Elections,44 we declared that the Court does not have jurisdiction to pass upon the eligibility of the private respondent who was already a Member of the House of Representatives at the time of filing of the petition for certiorari.45 Under Article VI, Section 17 of the 1987 Constitution, the HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives. As this Court explained in Lazatin v. House Electoral Tribunal46: The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred x x x. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had remained originally in the legislature" x x x. Earlier, this grant of power to the legislature was characterized by Justice Malcolm "as full, clear and complete" x x x. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal x x x and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission x x x. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. Limkaichong v. Commission on Elections47 recently reiterated this settled rule on the COMELECs loss of jurisdiction over a petition questioning the qualifications of a candidate upon his election, proclamation and assumption of office. In said case, petitioner Limkaichong faced two disqualification cases alleging that she is not a naturalborn Filipino because her parents were Chinese citizens at the time of her birth. The cases remained pending by the time the May 14, 2007 elections were held in which Limkaichong emerged as the winner with 65,708 votes or by a margin of 7,746 votes. Subsequently, another congressional candidate (Olivia Paras) who obtained the second highest number of votes filed a motion for leave to intervene and to suspend the

proclamation of Limkaichong, which the COMELECs Second Division granted. The day after the PBOC suspended her proclamation, the COMELEC issued Resolution No. 8062 adopting the policy-guidelines of not suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and resolution of the cases. Accordingly, Limkaichong moved to reconsider the resolution disqualifying her as a candidate and to lift the order suspending her proclamation. In compliance with Resolution No. 8062, the PBOC reconvened and proclaimed Limkaichong as the duly elected Member of the House of Representatives for the 1st district of Negros Oriental. Thereafter, Paras filed a petition to annul Limkaichongs proclamation, which was dismissed by the COMELECs First Division, upon the ground that the disqualification cases were not yet final when Limkaichong was proclaimed. Her proclamation being valid or legal, the COMELEC ruled that it effectively divested the Commission of jurisdiction over the cases. Limkaichong then moved to declare the disqualification cases as dismissed, contending that with her proclamation, her having taken her oath of office and her assumption of the position, the COMELEC was divested of jurisdiction to hear the disqualification cases. Since the COMELEC did not resolve her motion despite her repeated pleas, Limkaichong filed a petition for certiorari before this Court. Said petition was consolidated with the petition for prohibition and injunction filed by Louis C. Biraogo, petition for certiorari and injunction filed by Renald F. Villando and the petition for quo warranto, prohibition and mandamus with prayer for temporary restraining order and preliminary injunction instituted by Paras. By Decision dated April 1, 2009, this Court upheld the validity of Limkaichongs proclamation and the HRETs jurisdiction over the issue of disqualification of Limkaichong, as follows: The Court has held in the case of Planas v. COMELEC, that at the time of the proclamation of Defensor, the respondent therein who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final. As such, his proclamation was valid or legal, as he had at that point in time remained qualified. Limkaichongs situation is no different from that of Defensor, the former having been disqualified by a Division Resolution on the basis of her not being a naturalborn Filipino citizen. When she was proclaimed by the PBOC, she was the winner during the elections for obtaining the highest number of votes, and at that time, the Division Resolution disqualifying her has not yet became final as a result of the motion for reconsideration. xxxx In her petition x x x, Limkaichong argued that her proclamation on May 25, 2007 by the PBOC divested the COMELEC of its jurisdiction over all issues relating to her qualifications, and that jurisdiction now lies with the HRET. Biraogo, on the other hand, believed otherwise. He argued x x x that the issue concerning Limkaichongs disqualification is still within the exclusive jurisdiction of the COMELEC En Banc to resolve because when Limkaichong was proclaimed on May 25, 2007, the matter was still pending resolution before the COMELEC En Banc.

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We do not agree. The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latters election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 250 of the OEC underscores the exclusivity of the Electoral Tribunals jurisdiction over election contests relating to its members. x x x x48 (Additional emphasis supplied.) Maintaining that it retains jurisdiction over SPA No. 10-074 (DC), the COMELEC En Banc declared in its July 23, 2010 Resolution that the ruling in Limkaichong v. Commission on Elections does not apply to the case of Gonzalez since this Court found L imkaichongs proclamation to be valid pursuant to COMELEC Resolution No. 8062 which adopted the policy guideline, in connection with the May 14, 2007 elections, of not suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and decision of the involved cases. In the case of Gonzalez, the COMELEC said that the applicable rule is Section 16 of COMELEC Resolution No. 8678 promulgated on October 6, 2009 which specifically governs the proceedings for the May 10, 2010 Automated Elections. Said provision reads: SEC. 16. Effects of Disqualification. -- Any candidate who has been declared disqualified by final judgment shall not be voted for and the votes cast in his favor shall not be counted. If, for any reason, he is not declared disqualified by final judgment before the election and he is voted for and receives the winning number of votes, the case shall continue and upon motion of the petitioner, complainant, or intervenor, the proclamation of such candidate may be ordered suspended during the pendency of the said case whenever the evidence is strong. a) where a similar complaint/petition is filed before the election and before the proclamation of the respondent and the case is not resolved before the election, the trial and hearing of the case shall continue and referred to the Law Department for preliminary investigation. b) where the complaint/petition is filed after the election and before the proclamation of the respondent, the trial and hearing of the case shall be suspended and referred to the Law Department for preliminary investigation. In either case, if the evidence of guilt is strong, the Commission may order the suspension of the proclamation of respondent, and if proclaimed, to suspend the effects of proclamation. (Emphasis supplied.)

Invoking the last paragraph of the foregoing provision which the COMELEC said is in harmony with Section 6 of R.A. No. 6646 (Electoral Reforms Law of 1987), the COMELEC ruled that Gonzalezs proclamation was premature and illegal, thus: Third, as found by the Supreme Court in Limkaichong, the COMELEC en banc on August 16, 2007 ruled on Limkaichongs manifestation and motion for clarification, thus: "In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the above-quoted provision of the Constitution. "xxx" On the contrary, in the present case, the Second Division of the Commission, in the exercise of its power to suspend such proclamation under the aforequoted provisions of law, refused to set aside the proclamation and the effects thereof. Clearly, therefore, there is no taint of doubt that with the Resolution of the Second Division disqualifying the respondent, his proclamation by the Provincial Board of Canvassers was pre-mature and illegal and should therefore be annulled. There is no question that this Commission has the power to suspend such proclamation. Notably, in several jurisprudence where the Supreme Court refused the annulment of proclamation and held that the jurisdiction pertained already to HRET, it was the Comelec itself that eventually allowed the proclamation and the effects thereof, as shown in [the] Decision of the Supreme Court above-referred to. In stark contrast with the case at bar, this Commission itself is exercising its prerogative and power to nullify an illegal and premature proclamation of the respondent on the basis of the continued proceedings pursuant to both Section 16 of Resolution 8678 and Section 6 of Republic Act 6646. Lastly, it must be taken into consideration that, unlike in the previous elections, the ballots were now already printed with the names of the candidates as of the date of printing, and it was already impossible without incurring tremendous expense and delay merely to remove the name of the disqualified candidate and program the PCOS machines not to count the votes cast in favor of the disqualified candidate in a short period of time prior to the actual elections. For said reason, this Commission has ample power to suspend the effects of, and ultimately annul, the proclamation of the disqualified candidate whose votes should not have been counted in the first place. x x x x49 (Emphasis supplied.) We find the above ruling contrary to our pronouncement in Limkaichong and jurisprudence interpreting Section 72 of the OEC and Section 6 of R.A. No. 6646 which amended said provision. First, as already stated, there was no legal bar to the proclamation of Gonzalez as the winning candidate on May 12, 2010 since the May 8, 2010 Resolution at that time had not yet become final; in fact Gonzalez received a copy thereof only on May 11, 2010. We have held that the five-day period for filing a motion for reconsideration under Rule 19, Section 2 of the COMELEC Rules of Procedure should be counted from the receipt of the

decision, resolution, order, or ruling of the COMELEC Division.50 With his filing of a motion for reconsideration within the three-day period provided in Section 7 of COMELEC Resolution No. 8696, the execution of the said resolution was effectively suspended. Moreover, there is nothing in the May 8, 2010 Resolution of the Second Division ordering the suspension of the proclamation of Gonzalez. From the language of Section 6 of R.A. No. 6646 upon which the first paragraph of Section 16 of COMELEC Resolution No. 8678 was based, the Commission can order the suspension of the proclamation of the winning candidate only upon motion during the pendency of the disqualification case. The Court has ruled that the suspension of proclamation of a winning candidate is not a matter which the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No. 6646 requires that the suspension must be "upon motion by the complainant or any intervenor."51 The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong.52 There being no final judgment of disqualification yet at the time of his proclamation on May 12, 2010, it was grave error for the COMELEC En Banc to rule that Gonzalezs proclamation was illegal and premature. Also, the May 8, 2010 Resolution rendered by the Second Division cannot be construed as an implicit exercise by the Commission of its power to suspend the proclamation of Gonzalez as it could not have yet ordered such suspension considering that Bichara (petitioner in SPA No. 10-074 [DC]) filed his "Urgent Motion to Stop/Suspend The Proclamation of Fernando Vallejo Gonzalez" only on May 11, 2010 after the promulgation of the May 8, 2010 Resolution.53 Moreover, the COMELEC En Banc did not act on said motion of Bichara even after Gonzalez had been proclaimed by the PBOC. Subsequently, Lim filed a motion for leave to intervene and suspend the effects of proclamation of Gonzalez, which was followed by ten very urgent motions for the COMELEC En Banc to resolve the same.54 Neither can the COMELEC anchor its ruling that the May 12, 2010 proclamation of Gonzalez was illegal and premature on the ground that votes for said candidate, who was disqualified under the May 8, 2010 Resolution of the Second Division, should not have been counted. This is apparent from the other reason cited by the COMELEC as one of the circumstances distinguishing the present case from that of Limkaichong, thus: Lastly, it must be taken into consideration that, unlike the previous elections, the ballots were now already printed with the names of the candidates as of the date of printing, and it was already impossible without incurring tremendous expense and delay merely to remove the name of the disqualified candidate and program the PCOS machines not to count the votes cast in favor of the disqualified candidate in a short period of time prior to the actual elections. For said reason, this Commission has ample power to suspend the effects of, and ultimately annul, the proclamation of the disqualified candidate whose votes should not have been counted in the first place.55 (Emphasis supplied.)

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The above proposition is untenable. The advent of automated elections did not make any difference in the application of Section 6 of R.A. No. 6646 insofar as the effects of disqualification are concerned. Even at the time when ballots were physically read by the board of election inspectors and counted manually, it had not been absolutely necessary to reprint the ballots or remove the names of candidates who were disqualified before election. The votes cast for such candidates considered as "stray votes" even if read by the PCOS machines will have to be disregarded by the board of canvassers upon proper order from the COMELEC. In any case, the point raised by the COMELEC is irrelevant in resolving the present controversy.1avvphi1 It has long been settled that pursuant to Section 6 of R.A. No. 6646, a final judgment before the election is required for the votes of a disqualified candidate to be considered "stray." In the absence of any final judgment of disqualification against Gonzalez, the votes cast in his favor cannot be considered stray.56 After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns were transferred to the HRET as the constitutional body created to pass upon the same. The Court thus does not concur with the COMELECs flawed assertion of jurisdiction premised on its power to suspend the effects of proclamation in cases involving disqualification of candidates based on commission of prohibited acts and election offenses. As we held in Limkaichong, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a members qualification to sit in the House of Representatives.57 It must be noted that sub-paragraphs (a) and (b), Section 16 of COMELEC Resolution No. 8678 which contemplate disqualification cases against candidates over which the COMELEC retains jurisdiction even after those candidates have won the elections, duly proclaimed and assumed office, cannot be applied to petitions filed against candidates for the position of Member of the House of Representatives questioning their constitutional and statutory qualifications for the office under Section 78 of the OEC. The law is explicit in vesting jurisdiction over such cases in the HRET. In our Resolution dated July 20, 2009 denying the motion for reconsideration with prayer for oral argument filed by Biraogo in the Limkaichong case, we affirmed our ruling in our Decision of April 1, 2009 that "the proper remedy of those who may assail Limkaichongs disqualification based on citizenship is to file before the HRET the proper petition at any time during incumbency." That Lim had already withdrawn the petition for quo warranto he had earlier filed before the HRET is of no consequence, considering that citizenship is a continuing requirement for the holding of office of Members of the House of Representatives. Under the 1987 Constitution, Members of the House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Anyone who assails a Representatives citizenship or lack of it may still question the same at any time, even beyond the ten-day prescriptive period set in the 1998 HRET Rules.58 We also hold that there is no basis for the COMELECs order constituting a Special Provincial Board of Canvassers for the purpose of proclaiming Lim who got the next highest number of votes in the May 10, 2010 elections for the position of Representative of the 3rd District of Albay. It is well-settled that the ineligibility of a

candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. The votes intended for the disqualified candidate should not be considered null and void, as it would amount to disenfranchising the electorate in whom sovereignty resides.59 The second placer is just that, a second placer he lost in the elections and was repudiated by either the majority or plurality of voters.60 Private respondent Lim argues that the second placer rule will not apply in this case because Gonzalez was disqualified to be a candidate before election under the assailed COMELEC resolutions which became final and executory after five (5) days without a restraining order issued by this Court. The effect of the ruling on Gonzalezs disqualification retroacts to the day of election (May 10, 2010). As reflected in the recent Statement of Votes prepared by the Special Board of Canvassers, the name of Fernando V. Gonzalez has been delisted from the lists of official candidates for the Members of the House of Representatives in the 3rd District of Albay.61 The exception to the second placer rule is predicated on the concurrence of the following: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidates disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.62 These facts warranting the exception to the rule are not present in the case at bar. As noted by Commissioner Velasco, the date of promulgation of the resolution declaring Gonzalez disqualified to be a candidate in the May 10, 2010 was not a previously fixed date as required by Section 663 of COMELEC Resolution No. 8696 as the records do not show that the parties were given prior notice thereof. In fact, Gonzalez through his counsel received a copy of the May 8, 2010 Resolution only on May 11, 2010, one day after the elections. And as we held in Bautista v. Commission on Elections64 Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was qualified. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Bautistas disqualification. The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of Bautista are stray votes. A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him. As held in Domino v. COMELEC: Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless.65 (Emphasis supplied.)

We have declared that not even this Court has authority under any law to impose upon and compel the people to accept a loser, as their representative or political leader.66 The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser.67 The COMELEC clearly acted with grave abuse of discretion in ordering the proclamation of private respondent Lim who lost by a wide margin of 29,292 votes, after declaring Gonzalez, the winning candidate, disqualified to run as Member of the House of Representatives. WHEREFORE, the petition is GRANTED. The assailed Resolution of the Second Division dated May 8, 2010 and COMELEC En Banc Resolution dated July 23, 2010 in SPA No. 10074 (DC) are hereby ANNULLED and SET ASIDE. The Petition for Disqualification and Cancellation of Certificate of Candidacy of Fernando V. Gonzalez is DISMISSED, without prejudice to the filing of a proper petition before the House of Representatives Electoral Tribunal raising the same question on the citizenship qualification of Fernando V. Gonzalez. No costs. SO ORDERED. G.R. No. 93986 December 22, 1992

BENJAMIN T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS, NURSHUSSEIN UTUTALUM and ALIM BASHIR EDRIS, respondents. PADILLA, J.: In this special civil action of certiorari, petitioner assails the Resolution dated 15 May 1990 of the Commission on Elections (Second Division), issued SPA No. 90-006 entitled "Nur Hussein Ututalum, petitioner vs. Benjamin Loong, respondent," a petition to disqualify Benjamin Loong, candidate for Regional Vice-Governor of the Autonomous Government in Muslim Mindanao. Said assailed resolution ruled that the respondent Commission has jurisdiction to hear and decide SPA No. 90-006. On 15 January 1990, petitioner filed with the respondent Commission his certificate of candidacy for the position of Vice-Governor of the Mindanao Autonomous Region in the election held on 17 February 1990 (15 January 1990 being the last day for filing said certificate); herein two (2) private respondents (Ututalum and Edris) were also candidates for the same position. On 5 March 1990 (or 16 days after the election), respondent Ututalum filed before the respondent Commission (Second Division) a petition (docketed as SPA Case No. 90-006) seeking to disqualify petitioner for the office of Regional Vice-Governor, on the ground that the latter made a false representation in his certificate of candidacy as to his age. On 7 March 1990, the other candidate, respondent Edris, filed a "Petition in Intervention" in the said SPA No. 90-006, raising therein issues similar to those raised by respondent Ututalum in his main petition.

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On 19 March 1990, 1 petitioner Loong filed in SPA No. 90-006 his answer to the petition, seeking the dismissal of the petition, and alleging the following: 1. that it has not been the practice among the Muslim people in the community where respondent was born to record the birth of a child with the Office of the Civil Registry; that following such practice, respondent's parents did not also record his birth with the said office; that, to be sure of his age qualification, respondent, before filing his certificate of candidacy consulted his mother and other persons who have personal knowledge of his date of birth and all assured respondent that his correct date of birth is July 4, 1954. 2. that respondent COMELEC has no jurisdiction because such petition is actually one which is to deny due course to or cancel a certificate of candidacy which, under Section 78 of the Omnibus Election Code (BP 881), as amended by Election Reforms Law of 1987, should have been filed within 5 days following the last day for filing of the certificate of candidacy. On 30 March 1990, petitioner Loong also filed his "Answer to Petition for Intervention." 2 On 15 May 1990, the respondent Commission (Second Division) rendered the now assailed Resolution 3 (with two (2) Commissioners Yorac and Flores concurring, and one Commissioner Dimaampao dissenting), holding that: WHEREFORE, on the basis of the foregoing, the Commission on Elections (Second Division) holds that it has jurisdiction to try the instant petition and the respondent's motion to dismiss on the ground of lack of jurisdiction is hereby denied. In its questioned resolution, respondent Commission held that, in consonance with the ruling of this Court in Frivaldo vs. COMELEC 4 to wit 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, especially if they mistaken believed, as in this case, that the candidate was qualified. Section 6 and 7 of Rep. Act No. 6646 5 (in relation to the said Frivaldo ruling) should now mean that: 1. When there is an allegation of falsification of an entry in a candidate's certificate of candidacy, and such alleged falsification refers to a fact concerning the candidate's eligibility to run for and hold an elective public office, a petition to declare such candidate ineligible is seasonable if it is brought within a reasonable time of the discovery of ineligibility. 2. Such petition for a declaration of ineligibility is seasonable even if filed after the period prescribed by law for attacking certificate of candidacy and before the proclamation of the candidate sought to be disqualified. The substantive issue of qualification cannot be subordinated to or defeated by the gap in procedural rules. ..." 6

Denying petitioner's motion for reconsideration of the above-cited resolution, the respondent Commission issued Resolution dated 3 July 1990, 7 stating among others that While the Frivaldo case referred to the questioned of respondent's citizenship, we hold that the principle applies to discovery of violation of requirements for eligibility, such as for instance the fact that a candidate is a holder of a green card or other certificates of permanent residence in another country, or, as in this case, that the candidate does not possess the age qualification for the office. On 3 July 1990, petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao Autonomous Region. 8 Hence, this special civil action of certiorari filed by petitioner on 9 July 1990 to annul the aforesaid resolutions of respondent Commission dated 15 May 1990 and 3 July 1990, issued in SPA No. 90-006. The principal issue in the case at bar, as we see it, is whether or not SPA No. 90-006 (a petition to cancel the certificate of candidacy of petitioner Loong) was filed within the period prescribed by law. The undisputed facts are as follows: petitioner Loong filed his certificate of candidacy on 15 January 1990 (The last day for filing the same), the election for officials of the Muslim Mindanao Autonomous Region being on 17 February 1990; but private respondent Ututalum filed the petition (SPA 90-006) to disqualify candidate Loong only on 5 March 1990, or forty-nine (49) days from the date Loong's certificate of candidacy was filed (i.e. 15 January 1990), and sixteen (16) days after the election itself. Petitioner Loong contends that SPA No. 90-006 was filed out of time because it was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code. On the other hand, private respondent Ututalum alleges that SPA No. 90-006, though filed only on 5 March 1990, was filed when no proclamation of winner had as yet been made and that the petition is deemed filed on time as Section 3, Rule 25 of the Comelec Rules of Procedure states that the petition to disqualify a candidate on grounds of ineligibility "shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation." On the part of respondent Commission, it held in its assailed resolution that the petition in SPA No. 90-006 was timely filed, applying Sections 6 and 7 of Republic Act No. 6646, 9 and Section 2, Rule 23 of the Comelec Rules of Procedure which states that the petition to deny due course to or cancel a certificate of candidacy must be filed within five (5) days following the last day for the filing of a certificate of candidacy, both read in the light of the Frivaldo ruling of this Court. We find the present petition to be meritorious. Sections 3 and 4 of Rep. Act No. 6734 (entitled, "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao") requires that the age of a person running for the office of Vice Governor for the autonomous region shall be at least thirty-five (35) years on the day of the election. Private respondent Ututalum alleges that petitioner Loong falls short of this age requirements, hence, on 5 march 1990, he filed a petition to disqualify the petitioner.

Section 74 of the Omnibus Election Code ("Code" for brevity) provides that the certificate of candidacy of the person filing it shall state, among others, the date of birth of said person. Section 78 of the same Code states that is case a person filing a certificate of candidacy has committed false representation, a petition to cancel the certificate of the aforesaid person may be filed within twenty-five (25) days from the time the certificate was filed. Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code. We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedures. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be a ground for disqualification may be disqualified from continuing as a candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code are the following: SEC. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. 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 official performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election compaign an amount in excess of that allowed by 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 foreign country shall not be qualified to run for any elective office under this Code, unless said or immigrant of a foreign country in accordance with the residence requirement provided for in the election law. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at nay time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment.

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We also do not find merit in the contention of respondent Commission that in the light of the provisions of Section 6 and 7 of Rep. Act No. 6646, a petition to deny due course to or cancel a certificate of candidacy may be filed even beyond the 25 -day period prescribed by Section 78 of the Code, as long as it is filed within a reasonable time from the discovery of the ineligibility. Section 6 and 7 of Rep. Act No. 6646 are here re-quoted: SEC. 6. Effect of Disqualification Case. ny 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 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 of 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. SEC. 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." It will be noted that nothing in Sections 6 or 7 modified or alters the 25-day period prescribed by Section 78 of the Code for filing the appropriate action to cancel a certificate of candidacy on account of any false representation made therein. On the contrary, said Section 7 affirms and reiterates Section 78 of the Code. We note that Section 6 refers only to the effects of a disqualification case which may be based on grounds other than that provided under Section 78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6 applicable to disqualification cases filed under Section 78 of the Code. Nowhere in Section 6 and 7 Rep. Act. No 6646 is mentioned made of the period within which these disqualification cases may be filed. This is because there are provisions in the Code which supply the periods within which a petition relating to disqualification of candidates must be filed, such as Section 78, already discussed, and Section 253 on petitions for quo warranto. Thus, if a person qualified to file a petition to disqualification a certain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec Rules of procedure similarly provides that any voter contesting the election of any regional, provincial or city official on the ground of ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contest Adjudication Department. The petition may be filed within ten (10)days from the date the respondent is proclaimed (Section 2). It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no

fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing the misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent Commission sees this "gap" in what it calls a procedural gap which, according to it, it unnecessary and should be remedied. At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a definite time within which petitions of protests related to eligibility of candidates for elective offices must be filed, 10 as seen in Section 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called "procedural gap", but it is not for it to prescribed what the law does not provide, its function not being legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for the Legislature to decide and remedy. We are aware that in Frivaldo vs. Comelec, 11 this Court held that a petition to disqualify an elective official, on the ground that he is not a Filipino citizen, may be file at anytime, even beyond the period prescribed by law, and office and in fact had long been discharging the duties of said office. But we disagree with respondent Commission that the Frivaldo ruling applied to the case at bar in all its connotations and implications. For one, the ground for which disqualification is sought in the present case is misrepresentation as to the required age of the candidate, whereas, in Frivaldo the ground for disqualification was lack of Philippine citizenship. This is an overriding and fundamental desideratum matched perhaps only by disloyalty to the Republic of the Philippines. Mr. Justice Gutierrez, Jr., in his concurring opinion in Frivaldo vs. Comelec 12 said: It is an established rule of long standing that the period fixed by law for the filing of a protest whether quo warranto or election contest is mandatory and jurisdictional. As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed within ten days after the proclamation of election results. The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. xxx xxx xxx

In Aznar vs. Comelec, 13 the records show that private respondent filed his certificate of candidacy on 19 November 1987 and that the petitioner filed his petition for disqualification of said private respondent on 22 January 1988. Since the petition for disqualification was filed beyond the twenty five-day period required in Section 78 of the Code, it was clear that the said petition had been filed out of time. The Court also ruled that the petition for the disqualification of private respondent could not also be treated as a petition for quo warranto under Section 253 of the same Code as it was unquestionably premature, considering that private respondent was proclaimed Provincial Governor of Cebu only on 3 March 1988. However, as a matter of public interest to ascertain the respondent's citizenship and qualification to hold the public office to which he had been proclaimed elected, the Court ruled on the merits of the case. But the Court, in another case, in an EN BANC Resolution 14 affirmed the dismissal by the COMELEC of the petitions for disqualification. It appeared that on 2 March 1990, a petition to disqualify Padilla Pundaodaya (SPA No. 90-004) was filed because of an allegedly falsified certificate of candidacy which he could not have personally filed on 15 January 1990 since he had been in Saudi Arabia since 24 July 1987 and arrived in Manila only on 24 January 1990. The Court held that the disqualification petition was correctly treated by the Commission on Elections as a petition to cancel a defective certificate of candidacy but the petition was filed out of time and could not anymore be entertained. In sum, SPA No. 90-006 was filed by private respondent Ututalum beyond the 25-day period (from the filing by petitioner Loong of the questioned certificate of candidacy) prescribed by Section 78 of the Code. It follows that the dismissal of said petition for disqualification is warranted. Further it would appear that we can not treat SPA NO. 90006 as a petition for quo warranto (Section 253 of the Code) for when it was filed with the respondent Commission, no proclamation of election results had as yet been made, it was premature. WHEREFORE, the petition is GRANTED. The resolution of respondent Commission, dated 15 May 1990 and 3 July 1990, rendered in SPA No. 90-006 are hereby SET ASIDE. SO ORDERED. [G.R. No. 133944. October 28, 1999] MARCITA MAMBA PEREZ, petitioner, vs. COMMISSION ON ELECTIONS and RODOLFO E. AGUINALDO, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First Division of the Commission on Elections, dismissing petitioner Marcita Mamba Perezs petition for the disqualification of private respondent Rodolfo E. Aguinaldo as a candidate for Representative of the Third District of Cagayan in the May 11, 1998 elections, as well as the resolution of the COMELEC en banc, dated June 11, 1998, denying petitioners motion for reconsideration. The facts are not in dispute.

I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, I believe that the ten-day period should be applied strictly.

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On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30, 1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification of private respondent as a candidate on the ground that he had not been a resident of the district for at least one (1) year immediately before the day of the elections as required by Art. VI, 6 of the Constitution. In support of her claim, petitioner presented private respondents certificates of candidacy[1] for governor of Cagayan in the 1988, 1992, and 1995 elections; his voters affidavit[2] which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter registration record dated June 22, 1997,[3] in all of which it is stated that he is a resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of Cagayan. Petitioner alleged that private respondent filed an application[4] for the transfer of his registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third District) only on December 17, 1997 and that said application was approved only on January 7, 1998. Petitioner prayed that in the event the case was not finally decided before the elections and private respondent obtained the highest number of votes, the latters proclamation be suspended. In his answer, private respondent claimed that while he had been a resident of Gattaran, Cagayan in 1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment at No. 13-E Magallanes St., Tuguegarao, Cagayan, in order to hide his mistress from public view because, at that time, his marriage to his former wife was still subsisting. In support of his claim, he presented the affidavit[5] of the owner of the apartment, Engineer Alfredo Ablaza, in which it is stated that private respondent had been his lessee since July 1990. In addition, private respondent presented the contract of lease[6] of another residential apartment at Kamias Street, Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997;[7] the marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18, 1998;[8] the birth certificate[9] of their daughter, Geniah Laureen D. Aguinaldo; and various letters,[10] all of which show that he had been a resident of Tuguegarao, Cagayan for at least one (1) year before the May 11, 1998 elections. On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution,[11] dismissed the petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of Cagayan. On May 11, 1998, private respondent was elected Representative of the Third District of Cagayan, with 65,058 votes over his rival Manuel N. Mambas 58,507 votes.*12+ Accordingly, on May 16, 1998, he was proclaimed elected and, on May 17, 1998, he was sworn in office. On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that private respondent lacked the requisite residency in the Third District of Cagayan and arguing that the proclamation of private respondent was not a legal impediment to the continuation of the hearing on her motion in view of R.A. No. 6646, 6. Her motion was, however, denied by the COMELEC en banc in its resolution of June 11, 1998. Hence, this petition.

Petitioner contends that the COMELEC committed grave abuse of discretion in holding that private respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented an apartment there in order to hide his mistress. Petitioner contends that transfer of residence to the place where private respondent is keeping his mistress cannot amount to a change of domicile because ones domicile is the place where one and ones legitimate family resides. She also argues that private respondent could not have changed his residence to Tuguegarao in 1990 considering that his certificates of candidacy for governor of Cagayan in the 1988, 1992, and 1995 elections, as well as his voter registration records, the latest of which was made on June 22, 1997, indicate that he is a resident of Gattaran, which is in the First District of Cagayan. Petitioner avers that in the absence of clear and positive proof, ones domicile of origin should be deemed to continue and that to successfully effect a change of domicile, one must prove an actual change of domicile, a bonafide intention of abandoning the former place of residence and of establishing a new one, and unequivocal acts which correspond with the intention. On the other hand, private respondent asks that the instant petition be dismissed. He argues that after his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the COMELEC lost jurisdiction to pass upon his qualifications for the office of Representative. He argues further that this case should have been filed with the House of Representatives Electoral Tribunal which has jurisdiction over the subject matter of the case. In a supplemental pleading,[13] petitioner replies that the COMELEC retained jurisdiction over the case because she filed the petition for disqualification on March 30, 1998, before the elections on May 11, 1998, and that pursuant to R.A. No. 6646, 6, the COMELEC could continue the proceedings for the determination of the disqualification of private respondent. The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant petition for certiorari and eventually pass upon private respondents eligibility for the office of Representative of the Third District of Cagayan. Petitioner, in sustaining the affirmative side of the question, invokes the following provision of R.A. No. 6646: 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 (COMELEC) 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. As already stated, the petition for disqualification against private respondent was decided by the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were held. Notwithstanding the fact that private respondent had already been proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. The COMELEC en banc had no

jurisdiction to entertain the motion because the proclamation of private respondent barred further consideration of petitioners action. In the same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of Representatives, this Court has no jurisdiction over the same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of private respondents ineligibility. As this Court held in Lazatin v. House of Representatives Electoral Tribunal:[14] The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as intended to be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. Petitioners remedies should have been (1) to reiterate her prayer in the petition for disqualification, and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the hearing of the said petition and, in the event the motion was denied before the proclamation of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the proclamation of private respondent; or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on May 16, 1998.[15] Obviously, neither of these remedies can be availed of now. In any event, even assuming that the Court has jurisdiction to resolve the instant petition for certiorari, we find no merit in petitioners allegation that private respondent is ineligible for the office of Representative of the Third District of Cagayan. Art. VI, 6 of the Constitution states: No person shall be a Member of the House of Representatives unless he is a naturalborn 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. The meaning and purpose of the residency requirement were explained recently in our decision in Aquino v. COMELEC,[16] as follows: . . . *T+he place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that

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community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondents second daughter; and (5) various letters addressed to private respondent and his family, which all show that private respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on May 11, 1998. There is thus substantial evidence supporting the finding that private respondent had been a resident of the Third District of Cagayan and there is nothing in the record to detract from the merit of this factual finding. Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22, 1997, is shown by the following documentary evidence in the record, to wit: (1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voters registration records, the latest of which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and 1995. The contention is without merit. The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino,[17] this Court held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the law,[18] what is required for the election of governor is residency in the province, not in any district or municipality, one year before the election. Moreover, as this Court said in Romualdez-Marcos v. COMELEC:[19] It 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 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. In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of the province of Cagayan. As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,[20] in which this Court held: *W+hen the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified, having been governor of the entire province of Cagayan for ten years immediately before his election as Representative of that provinces Third District. WHEREFORE, the petition is DISMISSED. A.M. No. SCC-98-4 March 22, 2011 ASHARY M. ALAUYA, Clerk of Court, Shari'a District Court, Marawi City, Complainant, vs. JUDGE CASAN ALI L. LIMBONA, Shari'a Circuit Court, Lanao del Sur, Respondent. DECISION Before the Court is the present administrative matter against Judge Casan Ali Limbona, Tenth Sharia Circuit Court (10th SCC), Tamparan, Lanao del Sur. This matter is the subject of the Memorandum/Report of the Office of the Court Administrator (OCA) dated August 7, 2000.1 The Factual Antecedents The facts of the case, culled from the OCA report and the case record, are summarized below. (1) The OCA received on July 31, 1998 a letter dated July 13, 1998 addressed to then Court Administrator Alfredo L. Benipayo,2 signed by Datu Ashary M. Alauya (Alauya), Clerk of Court, 10th SSC, Marawi City. Alauya reported that numerous verbal complaints had been received against Judge Casan Ali Limbona (Judge Limbona) for: (a) not reporting to his station at the SCC in Tamparan, Lanao del Sur; (b) having filed a certificate of candidacy as a party-list candidate of the Development Foundation of the Philippines (DFP) while serving in the Judiciary and while receiving his salary as a judge; and (c) obtaining from the post office, without sufficient authority, checks representing benefits for court employees.

(2) A request from a "concerned citizen"3 that the court in Tamparan, Lanao del Sur, be moved to Cotobato City where Judge Limbona resided since the judge had been reporting to Tamparan only once a year since 1994. Upon the OCAs inquiry,4 the Commission on Elections (COMELEC) confirmed that based on their records, a certain Casan Ali L. Limbona filed his certificate as a party-list candidate of the DFP in the May 11, 1998 elections.5 The OCA confirmed, too, that Judge Limbona failed to submit any notice or information about his candidacy; for this reason, the Judge continued to draw his salary as a judge. The OCA forthwith advised the Finance Services Office to discontinue the payment of Judge Limbonas salary. On January 27, 1999, the Court resolved to: (1) treat Alauyas letter as an administrative complaint against Judge Limbona; (2) direct Judge Limbona to comment; (3) explain why he did not inform the OCA that he ran for public office in the May 1998 elections; and (4) immediately refund the salaries/allowances he received from March to November 1998.6 In a letter dated December 28, 1998 addressed to the OCA, Judge Limbona denied that he consented to be a nominee of DFP in the May 1998 elections. To prove his point, he submitted the affidavit7 of Datu Solaiman A. Malambut, DFPs National President, admitting sole responsibility for his "honest mistake" and "malicious negligence and act of desperation" in including the name of Judge Limbona among the partys list of nominees. While Judge Limbona professed awareness of the rule that appointed government officials are considered resigned on the date of the filing of their certificates of candidacy, he was not aware of any legal opinion or ruling applicable to his case. Alauya, on the other hand, denied authorship of the letter against Judge Limbona and requested that his name be stricken from the records as complainant in the case.8 In his comment dated April 26, 1998,9 Judge Limbona branded as "purely malicious and unfounded" the allegations that he and his staff were not reporting at the 10th SCC in Tamparan, Lanao del Sur. In support of his claim, the judge submitted the joint affidavit10 of several members of his staff certifying that the public had been transacting business daily with their office at the Memorial Building in Tamparan. Members of his staff also vouched for Judge Limbonas leadership, intelligence, diligence and contributions to the welfare of the community. The judge also submitted a certification dated April 8, 199911 from the municipal mayor of Tamparan, Datu Topaan D. Disomimba, attesting that the establishment of the 10th SCC in Tamparan has contributed to the maintenance of peace and order in the area, and that Judge Limbonas leadership has been excellent. Judge Limbona reiterated his denial that he filed a certificate of candidacy for the May 11, 1998 elections. He explained that he had no knowledge of his supposed candidacy until he learned about it from the OCA and this Court. Because he was never a candidate, he continued performing his duties as a judge.

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Also on April 26, 1999, Judge Limbona filed a motion for reconsideration12 of the Courts January 27, 1999 Resolution maintaining his lack of knowledge of the filing of his candidacy. On May 10, 1999, Judge Limbona filed another motion for reconsideration13 of the same Resolution, submitting fresh arguments as follows: (1) his alleged certificate of candidacy and acceptance bore discrepancies in the signature, thumbprints and community tax certificate numbers; (2) the Courts order withholding the release of his salaries without giving him the opportunity to be heard violated his right to due process; and (3) the resolution of the Court ordering him to refund the salaries he received from March 26, 1998 to November 30, 1998 likewise deprived him of due process as it meant he had already been adjudged guilty of the charges. In a Memorandum/Report dated October 18, 1999,14 the OCA apprised the Court of developments in the case. The OCA noted that the charges against Judge Limbona that needed to be addressed were: (1) Judge Limbonas alleged filing of a certificate of candidacy as a party-list representative in the May 1998 elections, in violation of the rule on partisan political activity, and (2) Judge Limbonas neglect of his duties as a judge. On the first charge, the OCA disbelieved Judge Limbonas assertion that he did not consent to the inclusion of his name in the certificate of candidacy filed before the COMELEC and that his inclusion was purely due to the carelessness of the person who prepared the certificate. The OCA nevertheless took the view that a positive identification of the judges participation in the filing of the certificate of candidacy was needed to fully resolve the matter. The OCA, however, found that the second charge of non-performance or neglect of duty (due to absenteeism) stood unsubstantiated and was, in fact, negated by the joint affidavit15 of the staff members of the 10th SCC in Tamparan, Lanao del Sur and the certification16 of the municipal mayor vouching for the judges leadership, diligence and contribution to the maintenance of peace and order in the community. The OCA recommended that the National Bureau of Investigation (NBI) be asked to determine the authenticity of Judge Limbonas signatures on the certificate of candidacy as DFP representative in the May 1998 congressional elections, and that Judge Limbona be suspended as a judge until the matter is finally resolved. The Court (Third Division) approved the OCA recommendation.17 On July 7, 2000, the NBI, through Deputy Director Sancho K. Chan, Jr., submitted to the OCA its report on the matter18 with the following findings: FINDINGS: Comparative examination of the specimens received under the stereocopic microscope, hand lens and with the aid of photographic enlargement reveals significant similarities in habit handwriting characteristics existing between the questioned and the standard sample signatures of Casan Ali Limbona, to wit: - structural pattern of letter elements -

- Directions of strokes - Manner of execution - Other identifying details CONCLUSION: The questioned and the standard sample signatures Casan Ali L. Limbona WERE WRITTEN by one and the same person."" The NBI findings and conclusion that Judge Limbona himself signed the certificate of candidacy validated the OCAs initial doubts on Judge Limbonas avowals of innocence about his participation in the May 1998 elections and his claim that the signatures appearing on the certificate of candidacy were forged. The OCA Recommendation and Related Incidents The OCA recommended that Judge Limbona be found guilty of dishonesty and be dismissed from the service with forfeiture of retirement and other privileges, if any, and be barred from re-employment in the public service, and that he be made to refund all salaries/allowances he received from March 26, 1998 to November 30, 1998 without prejudice to the filing of an appropriate case in court. In a related development, the Court (Second Division) issued a Resolution dated June 16, 2003 in A.M. No. SCC-03-08, entitled Emelyn A. Limbona v. Judge Casan Ali Limbona, forwarding to the Third Division for consideration under the present case, the charge that the respondent judge continued to perform his functions and to receive his salaries as judge after he had filed a certificate of candidacy in the May 1998 elections. The Courts Ruling We find the OCAs recommendation to be well-founded. Judge Limbona committed grave offenses which rendered him unfit to continue as a member of the Judiciary. When he was appointed as a judge, he took an oath to uphold the law, yet in filing a certificate of candidacy as a party-list representative in the May 1998 elections without giving up his judicial post, Judge Limbona violated not only the law, but the constitutional mandate that "no officer or employee in the civil service shall engage directly or indirectly, in any electioneering or partisan political campaign."19 The NBI investigation on the authenticity of Judge Limbonas signatures on the certificate of candidacy unqualifiedly established that the judge signed the certificate of candidacy for the May 1998 elections, thus negating his claim that his signatures were forged. The filing of a certificate of candidacy is a partisan political activity as the candidate thereby offers himself to the electorate for an elective post.1avvphi1 For his continued performance of his judicial duties despite his candidacy for a political post, Judge Limbona is guilty of grave misconduct in office. While we cannot interfere with Judge Limbonas political aspirations, we cannot allow him to pursue his political goals while still on the bench. We cannot likewise allow him to deceive the Judiciary. We find relevant the OCAs observation on this point:

"x x x Judge Limbonas concealment of his direct participation in the 1998 elections while remaining in the judiciarys payroll and his vain attempt to mislead the Court by his claim of forgery, are patent acts of dishonesty rendering him unfit to remain in the judiciary." In light of the gravity of Judge Limbonas infractions, we find OCAs recommended penalty of dismissal to be appropriate. Under the Rules of Court, dishonesty and gross misconduct are punishable by dismissal.20 We also approve the OCA recommendation that Judge Limbona be made to refund the salaries/allowances he received from March 26, 1998 to November 30, 1998. With this ruling, we likewise resolve the charge against Judge Limbona referred to us by the Courts Second Division in its June 16, 2003 Resolution in A.M. No. SCC-03-08 that the respondent judge continued to perform judicial functions and to receive his salaries as judge after he had filed a certificate of candidacy in the May 1998 elections. WHEREFORE, premises considered, Judge Casan Ali L. Limbona is declared GUILTY OF GROSS MISCONDUCT and DISHONESTY and is declared DISMISSED from the service effective March 26, 1998, the date of the filing of his certificate of candidacy, with FORFEITURE of all accrued retirement benefits and other monetary entitlements, if any. He is BARRED from re-employment in the government, including government-owned and controlled corporation. Judge Limbona is DIRECTED TO REFUND the salaries, allowances and other benefits he received from March 26, 1998 to November 30, 1998, within 10 days from the finality of this Decision. This Decision is without prejudice to appropriate criminal and civil cases that may be filed against Judge Limbona for the acts he committed. Let a copy of this Decision be served on the Ombudsman for whatever action it may deem appropriate. G.R. No. 198742 August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner, vs. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN, Respondents. DECISION REYES, J.: Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. The Case At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora

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Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union. The Undisputed Facts The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon. On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005. On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an Australian citizen.6 The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010. Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the RTC. The petitions similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225. The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship. Ruling of the RTC In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTCs decision disposed as follows: WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner):

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba, La Union; 2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and 3) DECLARING the position of Vice-Mayor in said municipality vacant. SO ORDERED.9 Ruling of the COMELEC The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents. The decretal portion of the resolution reads: WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows: 1. To DISMISS the instant appeal for lack of merit; 2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and 3. To GRANT the Motion for Execution filed on November 12, 2010. SO ORDERED.12 (Emphasis supplied) Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc. The Petitioners Arguments The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her. She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.

She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections. Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTCs judgment. The Issues Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement. The Courts Ruling I. An appeal may be simultaneously reinstated and definitively resolved by the COMELEC en banc in a resolution disposing of a motion for reconsideration. The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of the Constitution, viz: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit: Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of remanding the same to the division that initially dismissed it.

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We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide the substantive merits of the petitioners appeal after ruling for its reinstatement. Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting documents13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the substantial merits of her appeal when she herself invoked the same in the first place. The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in several ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs adjudicatory powers. More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14 II. The COMELEC en banc has the power to order discretionary execution of judgment. We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of execution and that such function belongs only to the court of origin. There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure.15 Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis--vis election cases when we held that judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC whether in the exercise of its original or appellate jurisdiction. III. Private respondents are not estopped from questioning petitioners eligibility to hold public office. The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit: (1) Before election, pursuant to Section 78 thereof which provides that: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election; and (2) After election, pursuant to Section 253 thereof, viz: Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Emphasis ours) Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Omnibus Election Code.17 The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253. IV. Petitioner is disqualified from running for elective office for failure to renounce her Australian citizenship in accordance with Section 5(2) of R.A. No. 9225. R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for naturalborn citizens who have lost their Philippine citizenship18 by taking an oath of allegiance to the Republic, thus: Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz: 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: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. (Emphasis ours) Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine.

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On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath. To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature. She anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225. At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A. No. 9225 is one such instance. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.20 The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship. The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos reacquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus: The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.

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

Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision. In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections. Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship. He pointed out further that this is a contradiction in the Bill. Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be considered qualified to run for the highest elective positions in the country. Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign citizenship and that they comply with the residency and registration requirements as provided for in the Constitution. Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without having to perform an act to complete or perfect his/her citizenship. Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of public officers. In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma requirement. On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship.

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As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they should be considered as repatriated citizens. In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to reacquire their Filipino citizenship. Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ). Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship. On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat the purpose of the Bill. Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated citizens. Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not considered as natural-born citizens. In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens. In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality and only naturalized citizens are not considered as natural-born citizens. On whether the Sponsors would agree to not giving back the status of being naturalborn citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.27 The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the preceding and succeeding discussions in the records.

The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress. It was Representative Javiers position that they should be considered as repatriated Filipinos and not as natural-born citizens since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as a mere pro forma requirement. Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement only with respect to the reacquisition of ones status as a natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an unsworn affidavit of renunciation. It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public officers primary accountability of allegiance and loyalty, which provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.28 Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officers abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines. To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise. Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled to judicial notice. We disagree.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours) Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law.30 The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods.1wphi1 As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same. We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioners motion for reconsideration. We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship.

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This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.32 The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship.34 The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.35 In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a prerequisite imposed for the exercise of the right to run for public office. Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines. WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto. SO ORDERED. EUSEBIO EUGENIO K. LOPEZ, Petitioner, vs G.R. No. 182701

A Filipino-American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy.

This is a petition for certiorari under Rule 65, in relation to Rule 64 of the Rules on Civil Procedure assailing the (1) Resolution[1] and (2) Omnibus Order[2] of the Commission on Elections (COMELEC), Second Division, disqualifying petitioner from running as Barangay Chairman. Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized Barangay and Sangguniang Kabataan Elections held on October 29, 2007. On October 25, 2007, respondent Tessie P. Villanueva filed a petition[3] before the Provincial Election Supervisor of the Province of Iloilo, praying for the disqualification of petitioner on the ground that he is an American citizen, hence, ineligible from running for any public office. In his Answer,[4] petitioner argued that he is a dual citizen, a Filipino and at the same time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as the Citizenship Retention and Re-acquisition Act of 2003.[5] He returned to the Philippines and resided in Barangay Bagacay. Thus, he said, he possessed all the qualifications to run for Barangay Chairman. After the votes for Barangay Chairman were canvassed, petitioner emerged as the winner.[6] On February 6, 2008, COMELEC issued the assailed Resolution granting the petition for disqualification, disposing as follows:

We note, however, that the operative facts that led to this Courts ruling in Valles are substantially different from the present case. In Valles, the candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on foreign soil.[9] Lopez was born of Filipino parents in Australia, a country which follows the principle of jus soli. As a result, she acquired Australian citizenship by operation of Australian law, but she was also considered a Filipino citizen under Philippine law. She did not perform any act to swear allegiance to a country other than the Philippines. In contrast, petitioner was born a Filipino but he deliberately sought American citizenship and renounced his Filipino citizenship. He later on became a dual citizen by re-acquiring Filipino citizenship. More importantly, the Courts 2000 ruling in Valles has been superseded by the enactment of R.A. No. 9225[10] in 2003. R.A. No. 9225 expressly provides for the conditions before those who re-acquired Filipino citizenship may run for a public office in the Philippines. Section 5 of the said law states: Section 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: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. (Emphasis added) Petitioner re-acquired his Filipino citizenship under the cited law. This new law explicitly provides that should one seek elective public office, he should first make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Petitioner failed to comply with this requirement. COMELEC observation on this point: We quote with approval the

WHEREFORE, premises considered, the instant Petition for Disqualification is GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo. SO ORDERED.[7] In ruling against petitioner, the COMELEC found that he was not able to regain his Filipino citizenship in the manner provided by law. According to the poll body, to be able to qualify as a candidate in the elections, petitioner should have made a personal and sworn renunciation of any and all foreign citizenship. This, petitioner failed to do. His motion for reconsideration having been denied, petitioner resorted to the present petition, imputing grave abuse of discretion on the part of the COMELEC for disqualifying him from running and assuming the office of Barangay Chairman. We dismiss the petition. Relying on Valles v. Commission on Elections,[8] petitioner argues that his filing of a certificate of candidacy operated as an effective renunciation of foreign citizenship.

COMMISSION ON ELECTIONS Promulgated: and TESSIE P. VILLANUEVA, Respondents. July 23, 2008

While respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate Generals Office in Los Angeles, California, the same is not enough to allow him to run for a public office. The above-quoted provision of law mandates that a candidate with dual citizenship must make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. There is no evidence presented that will show that respondent complied with the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run for Barangay Chairman of Barangay Bagacay. For the renunciation to be valid, it must be contained in an affidavit duly executed before an officer of law who is authorized to administer an oath. The affiant must state in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be

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effective. In the instant case, respondent Lopezs failure to renounce his American citizenship as proven by the absence of an affidavit that will prove the contrary leads this Commission to believe that he failed to comply with the positive mandate of law. For failure of respondent to prove that he abandoned his allegiance to the United States, this Commission holds him disqualified from running for an elective position in the Philippines.[11] (Emphasis added) While it is true that petitioner won the elections, took his oath and began to discharge the functions of Barangay Chairman, his victory can not cure the defect of his candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.[12] In sum, the COMELEC committed no grave abuse of discretion in disqualifying petitioner as candidate for Chairman in the Barangay elections of 2007. WHEREFORE, the petition is DISMISSED. SO ORDERED. G.R. No. 179413 November 28, 2008 PRISCILA R. JUSTIMBASTE, petitioner, vs. COMMISSION ON ELECTIONS and RUSTICO B. BALDERIAN, respondents. DECISION CARPIO MORALES, J.: On challenge via Certiorari and Prohibition is the Commission on Elections (COMELEC) en banc Resolution of August 21, 20071 affirming the May 28, 20072 Resolution of its Second Division dismissing the petition for disqualification filed by Priscila R. Justimbaste (petitioner) against Rustico B. Balderian (private respondent). Gathered from the records of the case are the following antecedent facts: On April 3, 2007, petitioner filed with the Office of the Leyte Provincial Election Supervisor a petition to disqualify private respondent as a candidate for mayor of Tabontabon, Leyte during the May 14, 2007 elections. In the main, petitioner alleged: 2.3. That the Respondent committed falsification and misinterpretation in his application for candidacy for mayor as follows; a. That while Respondent stated in the application [that] his name is Rustico Besa Balderian, his real name is CHU TECK SIAO as shown in the Certificate of Birth issued by the National Statistic Office, copy of which is hereto attached as "Annex B". (sic) b. That the Respondent had been using as his middle name BESA, while his brother Bienvenido is using the middle name SIAO, as shown by "Annexes C and D", a copy of which [is] hereto attached, thereby confusing the public as to his identity.

c. That the Respondent is reportedly a U.S. citizen or Permanent resident of the United States and has not reportedly relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy for mayor. (Emphasis and underscoring supplied)3 Private respondent denied petitioners allegations, he asserting that he is a Filipino citizen. In her Position Paper filed before the COMELEC, petitioner attached a record of private respondents travels from 1998 to 2006, as certified by the Bureau of Immigration;4 a photocopy of private respondents Philippine Passport5 issued on November 6, 2002 by the Philippine Consulate in Los Angeles which shows his nationality as a Filipino; a Certification from the National Statistics Office dated April 4, 2007 for one Rustico S. Balderian6 and another for one Rustico B. Balderian;7 a Certification from the Office of the Civil Registrar of Tabontabon dated March 30, 2007 as to the fact of birth of one Chu Teck Siao to Peter Siao and Zosima Balderian;8 and a Certification from the Office of the Clerk of Court of the Regional Trial Court, Tacloban City that the records of the Petition for Change of Name of private respondent "is (sic) not available in the records of this office."9 In the meantime, private respondent won and was proclaimed as mayor of Tabontabon. By Resolution of May 28, 2007, the Second Division of the COMELEC denied the petition for disqualification, disposing as follows: WHEREFORE, premises considered the instant petition for disqualification is denied and the respondent Rustico B. Balderian is considered a Filipino, having elected to be and is thus qualified to run as Mayor of the Municipality of Tabontabon, Leyte. (Emphasis and underscoring supplied) As reflected early on, petitioners Motion for Reconsideration of the COMELEC Second Division Resolution was denied by the banc, hence, the present petition. The issue in the main is whether private respondent committed material misrepresentation and falsification in his certificate of candidacy. Section 74 of the Omnibus Election Code (OEC) provides that the contents of the certificate of candidacy must be true to the best of the candidates knowledge, thus: SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated

in the certificate of candidacy are true to the best of his knowledge. (Emphasis and underscoring supplied) If the certificate contains a material representation which is false, Section 78 provides the procedure to challenge the same, thus: 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 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 and underscoring supplied) Material misrepresentation as a ground to deny due course or cancel a certificate of candidacy refers to the falsity of a statement required to be entered therein, as enumerated in above-quoted Section 74 of the Omnibus Election Code. Concurrent with materiality is a deliberate intention to deceive the electorate as to ones qualifications. Thus Salcedo II v. Commission on Elections10 reiterates: As stated in law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertained to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of candidacy.11 xxxx Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refers to the qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake.12 xxxx Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to ones qualifications for public office. x x x13 (Emphasis and underscoring supplied) The pertinent provision of Republic Act No. 7160 or the Local Government Code (LGC) governing qualifications for elective municipal officials14 reads: SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang

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bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect. (b) Candidates for the position of governor, vice-governor or member of the sangguniang panlalawigan or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty three (23) years of age on election day." x x x x (Emphasis in the original; underscoring supplied)

3. A former Filipino citizen and his or her family, who had been naturalized in a foreign country and comes or returns to the Philippines. Re-entry permits are, under the Philippine Immigration Act, issued to lawful resident aliens who depart temporarily from the Philippines. 16 The record of the case yields no concrete proof to show that private respondent, who holds a Philippine passport, falls under the third category of a balikbayan (former Filipino citizen). As noted by public respondent:

alleges, is not reflected in the records of the National Statistics Office as shown by two Certifications from the said agency. Responding, private respondent confirms that he indeed filed a verified petition for change of name in 1976, docketed as SP Proc. JP-0121, with the then JDRC of Leyte and Southern Leyte which rendered a decision in his favor in the same year. He adds that his previous counsel, Atty. Rufino Reyes, sought in 1986 to secure a certified true copy of the decision but no court records thereof could be found, hence, Branch 7 of the Regional Trial Court (RTC) of Palo, Leyte, "reconstituted the records" from the file copies of his counsel by Order of November 7, 1986.23 The Court notes that by Order of November 21, 1986, Branch 7 of the Palo RTC, after conducting a hearing, directed the issuance of a certified true copy of the judgment24 rendered by the JDRC on August 26, 1976. The Order states: "When this case came on [sic] hearing this morning, Assistant Provincial Fiscal Teresita S. Lopez of Leyte who was then Clerk of Court of the JDRC of Leyte confirmed the genuineness of the file copy of the aforesaid judgment of Judge Zoila M. Redoa of the JDRC of Leyte in SP Proc. JP-0121. WHEREFORE, it is ordered that the clerk of this court issue a certified true copy of the aforesaid judgment in SP Proc. JP-0121 dated August 26, 1986 (sic) the dispositive parts of which reads "Premises considered, the court hereby allows the petitioner (sic) for Change of Name. The petitioner henceforth shall carry the name of Rustico Balderian as prayed for." Let a copy of this decision be furnished the Civil Registrar of McArthur, Leyte, for him to make of record this judgment in his Civil Registry." (Emphasis and underscoring supplied)25 In the certified true copy of the judgment of the JDRC, the following were noted: At the hearing petitioner presented the following exhibits: "B" the order of the court setting the case for hearing and ordering its publication; ordering also that a copy be served upon the Office of the Sol. Gen. which was acknowledged having been received by said office on Nov. 11, 1975 as per return Registry Receipt of the court attached to page 7 of the record; "C" the Affidavit of Publication of the Asst. Publisher of the "The Reporter" the newspaper of general circulation which the order was published, "D" the issue of "The Reporter" dated November 12, 1975 and "D-1" the page carried the order; "E" issue of same newspaper dated November 19, 1975 and "E-1" the column carrying the order; "F" the issue of said newspaper dated November 26, 1975, and the "F-1", the column carrying the order; "G" the certification of the Local Civil Registrar; G-1, the place of birth of petitioner; G-2, his date of birth,; G-3, the name of petitioners father Peter Siao; G-4, and his mothers name Zosima Balderian and G-5, the entry that petitioner is an illegitimate child; which certification was issued on May 5, 1975 by said public official; "H" petitioners Baptismal Certificate; "H-1" his date of birth; "H-2" his place of birth; "H-3" that his parents are Peter Siao and Zosima Balderian. Exhibit "I" petitioners diploma from the Manila Central University where he earned his degree of Optometry on April 6, 1975 and the name of Rustico Balderian; "J" petitioners official rating issued by the Commissioner of Professional Regulation Commission under

Petitioner asserts that private respondent committed material misrepresentation when he stated in his certificate of candidacy that he is a Filipino citizen and that his name is Rustico Besa Balderian, instead of Chu Teck Siao. Further, petitioner asserts that the immigration records of private respondent who frequently went to the United States from 1998 up to 2006 reflected the acronyms "BB" and "RP" which petitioner takes to STAND FOR "Balikbayan" and "Re-entry Permit," thus showing that private respondent either harbors dual citizenship or is a permanent resident of a foreign country in contravention of Section 40 of the LGC: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted of final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. (Emphasis in the original and supplied) Upon the other hand, private respondent insists on his Filipino citizenship. Republic Act 676815 provides that a balikbayan is 1. A Filipino citizen who has been continuously out of the Philippines for a period of at least one year; 2. A Filipino overseas worker; or

[T]he Commission (Second Division) dismissed the instant petition since the same was based on mere conjectures and surmises. Petitioner never presented clear and convincing evidence that respondent is indeed an American citizen and a permanent resident of the United States of America. (Emphasis and underscoring supplied) As in petitioners petition before the COMELEC, as alleged above, she, in her present Petition, is uncertain of private respondents citizenship or resident status, viz: c. That the Respondent is reportedly a US citizen or Permanent resident of the United States and has not reportedly relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy for mayor. (Emphasis, italics, and underscoring supplied)17 Private respondents notarized photocopy of his Philippine Passport18 issued in 2002, the genuineness and authenticity of which is not disputed by petitioner, shows that he is a Filipino. Petitioner insists, however, that private respondent is a Chinese national, following the nationality of his father, Peter Siao. There are, however, conflicting documentary records bearing on the citizenship of private respondents father. Thus, in the Certificate of Live Birth of private respondent on file at the Local Civil Registrar of Tabontabon,19 the father is registered as a Filipino. But in the Certificate of Live Birth of private respondents older brother Bienvenido Balderian,20 the father is registered as a Chinese. In private respondents Certificate of Live Birth, the entry on the date, as well as the place of marriage of private respondents parents, reads "no data available." In his brothers Certificate of Live Birth, the entry on the same desired information is left blank. In light of these, absent any proof that private respondents parents Peter Siao and Zosima Balderian21 contracted marriage, private respondent is presumed to be illegitimate, hence, he follows the citizenship of his mother who is a Filipino.22 As will be reflected shortly, private respondent was, in a certified true copy of a decision dated August 26, 1976 rendered by then Juvenile and Domestic Relations Court (JDRC) of Leyte and Southern Leyte, therein noted, as gathered by the said court from the evidence presented, to be an illegitimate child. Petitioner goes on to bring attention to private respondents filing of a petition for change of name from Chu Teck Siao to Rustico B. Balderian, which petition, petitioner

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the Board of Optometry issued January 13, 1976 under the name of Rustico B. Balderian; "K" petitioners registration License No. 3374 with the Professional Regulation Commission for the practice of Optometry; "L" petitioners Registration Card with the Manila Central University being enrolled in Pre-Medicine Course as of June 1976; Exhibit "M" his registration card in the University of the East when he cross-enrolled in the College of Law for the second year 1976-1977; Exhibit "N" Student Pilots License No. 758109 issued by the CAA to fly fixed wings; Exhibit "O" his Student Pilots License No. 75SH224 issued by Civil Aeronautics Administration allowing him to fly a helicopter. To the above school records which he earned under the name of Rustico Balderian, the name under which he was baptized and hereon known to all since he can remember, he never used the alien name of Chua Teck Siao by which he was registered. He has not been charged with any offense either criminally, civilly or administratively. His intention in filing the petition is to avoid undergoing the same difficulty and ordeal when he takes the BAR examination and the Board examination in Medicine as he did when he took the Board Examination in Optometry. After the latter Board allowed him to take the examination upon the submission of an affidavit of two disinterested persons attesting to the fact that Chu Teck Siao and Rustico Balderian is one and the same person, he was advised to petition for Change of Name to avoid confusion.26 (Emphasis and underscoring supplied) That the records of the Tabontabon Civil Registry still show, by petitioners allegation, that private respondents name is Chu Teck Siao does not necessarily mean that there was no such petition for change of name and that the certified true copy of judgment thereon is spurious, especially given that, as highlighted in the above-quoted dispositive portion of the JDRC decision, it was the Civil Registrar of McArthur, not Tabontabon, which was ordered to be copy-furnished the decision and "to make of record [its] judgment in his Civil Registry." AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not a material misrepresentation,27 as "material misrepresentation" under the earlierquoted Section 78 of the Omnibus Election Code refers to "qualifications for elective office." It need not be emphasized that there is no showing that there was an intent to deceive the electorate as to private respondents identity, nor that by using his Filipino name the voting public was thereby deceived. Petitioners compilation of online articles/data on private respondent puts on view his profile as Rustico B. Balderian. Petitioner in fact has not claimed that the electorate did not know who they were voting for when they cast their ballots in favor of private respondent or that they were deceived into voting for someone else other than him. Given that private respondent and his family are members of the Colegio de Sta. Lourdes of Leyte Foundation, Inc. which operates a nursing school in Tabontabon, it may safely be assumed that the electorate had been fully acquainted with him. Petitioner finally assails the failure of public respondent to conduct hearings on her petition, citing Dayo v. Commission on Elections28 which held that "an election protest may not be disposed of by summary judgment."29

Section 5 vis--vis Section 7 of Republic Act 664630 provides that the procedure in cases involving nuisance candidates shall apply to petitions for cancellation of certificate of candidacy. SECTION 5. Procedure in Cases of Nuisance Candidates. (a) A Verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail not be allowed. (b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any. (c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as a affirmative defenses. (d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. (e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned. (Underscoring supplied) SECTION 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. (Emphasis in the original, underscoring supplied) Petitioner is reminded that a petition for disqualification based on material misrepresentation in the certificate of candidacy is different from an election protest. The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate.31

In fine, petitioner has not shown that public respondent, in issuing the assailed Resolution, committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 112889

April 18, 1995

BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents. VITUG, J.: The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx (e) xxx xxx

Fugitive from justice in criminal or non-political cases here or abroad(.)

Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice. It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged "flight" from that country. Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in

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due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June 1992, held: Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petition below for disqualification has ceased to be a preproclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding. ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice. 1 Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office. Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 533 2 of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy. Here are some excerpts from the committee's deliberations: CHAIRMAN MERCADO. Session is resumed. So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.

CHAIRMAN DE PEDRO. Kay Benny Marquez. REP. CUENCO: What does he want? CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang constitutionality nito before the Supreme Court later on. REP. CUENCO. Anong nakalagay diyan?

MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word "fugitive". THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha? MR. SANCHEZ. Means a person... THE CHAIRMAN. Ha? HON. REYES. A person who has been convicted.

CHAIRMAN DE PEDRO. Iyong disqualification to run for public office. Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad. Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending, unserved. . . HONORABLE SAGUISAG. I think that is even a good point, ano what is a fugitive? It is not defined. We have loose understanding. . . CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive. Si Benny umalis na, with the understanding na okay na sa atin ito. THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . . MS. DOCTOR. Mr. Chairman. . . THE CHAIRMAN. Yes. MS. DOCTOR. Let's move to. . . THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important. Manny, can you come up? MR. REYES. Let's use the word conviction by final judgment. THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,. Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991). xxx xxx xxx . . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a. 4 The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: (a) ... THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one who has been convicted by final judgment. It means one who has been convicted by final judgment. HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. THE CHAIRMAN. Ano? Sige, tingnan natin. HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya? THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is still being reviewed, that is not yet conviction by final judgment. 3 The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the House of Representatives, made this reservation:

(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. 5 (Emphasis supplied) Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must

THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang gumawa nito, ha?

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merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter. WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on costs. SO ORDERED. [G.R. No. 135083. May 26, 1999] ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. DECISION MENDOZA, J.: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano Ernesto S. Mercado Gabriel V. Daza III 103,853 100,894 54,275[1]

1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City. On May 8, 1998, private respondent filed a motion for reconsideration.[3] The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in the case for disqualification.[4] Petitioners motion was opposed by private respondent. The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections.[5] The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli. He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not

result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondents certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and, 2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998. B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELECs Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11,

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C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati. We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioners motion for leave to intervene granted. I. PETITIONER'S RIGHT TO BRING THIS SUIT Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. .... Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenors rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is a defeated candidate for the vicemayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment. The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in several cases,[7] only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Motion for Leave to File Intervention on May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was precisely to have private respondent disqualified from running for *an+ elective local

position under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioners motion for intervention but also with the substantive issues respecting private respondents alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City. II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for any elective local position: . . . (d) Those with dual citizenship. This provision is incorporated in the Charter of the City of Makati.[8] Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has command*ed+ in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states.[9] For instance, such a situation may arise when a person whose parents are citizens of a state which adheres

to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows:[10] . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance - and I reiterate a dual allegiance - is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all. What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the Peoples Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council. When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of

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the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources. Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest. And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW. In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:[11] . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the Peoples Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship? Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as

persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: *D+ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control.*12+ By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows:[13] SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person with dual citizenship is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship. SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty*14+ of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic,[15] it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic. III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine national. Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority. In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath:

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6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED) NATURAL-BORN .... 10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR . 11. COUNTRY. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar v. COMELEC[18] applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be express, it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either express or implied. To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,[19] we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED.

G.R. No. 137000

August 9, 2000

CIRILO R. VALLES, petitioner, vs. COMMISSION ON ELECTIONS and ROSALIND YBASCO LOPEZ, respondents. DECISION PURISIMA, J.: This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of Civil Procedure, assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of the Commission on Elections in SPA No. 98-336, dismissing the petition for disqualification filed by the herein petitioner, Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May 1998 elections for governor of Davao Oriental. Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at the age of fifteen, she left Australia and came to settle in the Philippines. On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic Church in Manila. Since then, she has continuously participated in the electoral process not only as a voter but as a candidate, as well. She served as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto, docketed as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding no sufficient proof that respondent had renounced her Philippine citizenship, the Commission on Elections en banc dismissed the petition, ratiocinating thus: "A cursory reading of the records of this case vis-a-vis the impugned resolution shows that respondent was able to produce documentary proofs of the Filipino citizenship of her late father... and consequently, prove her own citizenship and filiation by virtue of the Principle of Jus Sanguinis, the perorations of the petitioner to the contrary notwithstanding. On the other hand, except for the three (3) alleged important documents . . . no other evidence substantial in nature surfaced to confirm the allegations of petitioner that respondent is an Australian citizen and not a Filipino. Express renunciation of citizenship as a mode of losing citizenship under Commonwealth Act No. 63 is an equivocal and deliberate act with full awareness of its significance and consequence. The evidence adduced by petitioner are inadequate, nay meager, to prove that respondent contemplated renunciation of her Filipino citizenship".1 In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of Davao Oriental. Her opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA No. 95-066 before the COMELEC, First Division, contesting her Filipino citizenship but the said petition was likewise dismissed by the COMELEC, reiterating substantially its decision in EPC 92-54.

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

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The citizenship of private respondent was once again raised as an issue when she ran for re-election as governor of Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles, in SPA No. 98-336. On July 17, 1998, the COMELECs First Division came out with a Resolution dismissing the petition, and disposing as follows: "Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the merits trying it de novo, the above table definitely shows that petitioner herein has presented no new evidence to disturb the Resolution of this Commission in SPA No. 95-066. The present petition merely restates the same matters and incidents already passed upon by this Commission not just in 1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth any new evidence and matter substantial in nature, persuasive in character or sufficiently provocative to compel reversal of such Resolutions, the dismissal of the present petition follows as a matter of course. xxx xxx xxx

a) In 1988, private respondent registered herself with the Bureau of Immigration as an Australian national and was issued Alien Certificate of Registration No. 404695 dated September 19, 1988; b) On even date, she applied for the issuance of an Immigrant Certificate of Residence (ICR), and c) She was issued Australian Passport No. H700888 on March 3, 1988. Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had renounced her Filipino citizenship. He contends that in her application for alien certificate of registration and immigrant certificate of residence, private respondent expressly declared under oath that she was a citizen or subject of Australia; and said declaration forfeited her Philippine citizenship, and operated to disqualify her to run for elective office. As regards the COMELECs finding that private respondent had renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and had her Australian passport cancelled on February 11, 1992, as certified to by the Australian Embassy here in Manila, petitioner argues that the said acts did not automatically restore the status of private respondent as a Filipino citizen. According to petitioner, for the private respondent to reacquire Philippine citizenship she must comply with the mandatory requirements for repatriation under Republic Act 8171; and the election of private respondent to public office did not mean the restoration of her Filipino citizenship since the private respondent was not legally repatriated. Coupled with her alleged renunciation of Australian citizenship, private respondent has effectively become a stateless person and as such, is disqualified to run for a public office in the Philippines; petitioner concluded. Petitioner theorizes further that the Commission on Elections erred in applying the principle of res judicata to the case under consideration; citing the ruling in Moy Ya Lim Yao vs. Commissioner of Immigration,3 that: "xxx Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. xxx" The petition is unmeritorious. The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. Historically, this was a year before the 1935 Constitution took into effect and at that time, what served as the Constitution of the Philippines were the principal organic acts by which the

United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law. Among others, these laws defined who were deemed to be citizens of the Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as: SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight. (underscoring ours) The Jones Law, on the other hand, provides: SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein. (underscoring ours) Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. Private respondents father, Telesforo Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the same laws, which were the laws in force at the time of her birth, Telesforos daughter, herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines. The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship, to wit: (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.

"WHEREFORE, premises considered and there being no new matters and issues tendered, We find no convincing reason or impressive explanation to disturb and reverse the Resolutions promulgated by this Commission in EPC 92-54 and SPA. 95-066. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present petition. SO ORDERED."2 Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The same was denied by the COMELEC in its en banc Resolution of January 15, 1999. Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship of private respondent Rosalind Ybasco Lopez. The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino citizen and therefore, qualified to run for a public office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine Constitution; (2) she was married to a Filipino, thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and SPA Case No. 95-066, declaring her a Filipino citizen duly qualified to run for the elective position of Davao Oriental governor. Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing reliance on the admitted facts that:

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(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship. (5) Those who are naturalized in accordance with law. So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained under the 19734 and 19875 Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim Australian citizenship resulting to her possession of dual citizenship. Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen, she has nonetheless renounced her Philippine citizenship. To buttress this contention, petitioner cited private respondents application for an Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR), on September 19, 1988, and the issuance to her of an Australian passport on March 3, 1988. Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more; (4) By accepting commission in the military, naval or air service of a foreign country; (5) By cancellation of the certificate of naturalization;

And, in Mercado vs. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express.8 As held by this court in the aforecited case of Aznar, an application for an alien certificate of registration does not amount to an express renunciation or repudiation of ones citizenship. The application of the herein private respondent for an alien certificate of registration, and her holding of an Australian passport, as in the case of Mercado vs. Manzano, were mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at the most, private respondent had dual citizenship - she was an Australian and a Filipino, as well. Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground for losing ones Philippine citizenship. Since private respondent did not lose or renounce her Philippine citizenship, petitioners claim that respondent must go through the process of repatriation does not hold water. Petitioner also maintains that even on the assumption that the private respondent had dual citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local Government Code of 1991, which states: "SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx

Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship.10 The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen.11 This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship. Then, too, it is significant to note that on January 15 1992, private respondent executed a Declaration of Renunciation of Australian Citizenship, duly registered in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11, 1992, the Australian passport of private respondent was cancelled, as certified to by Second Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her renunciation was effective, petitioners claim that private respondent must go through the whole process of repatriation holds no water. Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration.12 He insists that the same issue of citizenship may be threshed out anew. Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca vs. Republic,13 an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a persons citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding on citizenship is affirmed by this Court. Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not really binding, to make the effort easier or simpler.14 Indeed, there appears sufficient basis to rely on the prior rulings of the Commission on Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the herein private respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two prior

(6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted: and (7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husbands country, she acquires his nationality. In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners contention that the application of private respondent for an alien certificate of registration, and her Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar vs. COMELEC6 and in the more recent case of Mercado vs. Manzano and COMELEC.7 In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship.

(d) Those with dual citizenship; xxx xxx xxx

Again, petitioners contention is untenable. In the aforecited case of Mercado vs. Manzano, the Court clarified "dual citizenship" as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance.9 Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification must refer to citizens with dual allegiance. The Court succinctly pronounced: "xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification."

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cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper. WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA No. 98-336 AFFIRMED. Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of Davao Oriental. No pronouncement as to costs. SO ORDERED. EN BANC

SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I ___________________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. SEC. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who reacquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or

(b) are in the active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. SEC. 6. Separability Clause. - If any section or provision of this Act is held unconstitutional or invalid, any other section or provision not affected thereby shall remain valid and effective. SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or two (2) newspapers of general circulation. In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act No. 9225 unconstitutional? (2) Does this Court have jurisdiction to pass upon the issue of dual allegiance? We shall discuss these issues jointly. Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He avers that Sections 2 and 3 of Rep. Act No. 9225, together, allow dual allegiance and not dual citizenship. Petitioner maintains that Section 2 allows all Filipinos, either natural-born or naturalized, who become foreign citizens, to retain their Philippine citizenship without losing their foreign citizenship. Section 3 permits dual allegiance because said law allows natural-born citizens of the Philippines to regain their Philippine citizenship by simply taking an oath of allegiance without forfeiting their foreign allegiance.2 The Constitution, however, is categorical that dual allegiance is inimical to the national interest. The Office of the Solicitor General (OSG) claims that Section 2 merely declares as a state policy that "Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship." The OSG further claims that the oath in Section 3 does not allow dual allegiance since the oath taken by the former Filipino citizen is an effective renunciation and repudiation of his foreign citizenship. The fact that the applicant taking the oath recognizes and accepts the supreme authority of the Philippines is an unmistakable and categorical affirmation of his undivided loyalty to the Republic.3 In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to determine the intent of the legislative branch in drafting the assailed law. During the deliberations, the issue of whether Rep. Act No. 9225 would allow dual allegiance had in fact been the subject of debate. The record of the legislative deliberations reveals the following: xxxx Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - the retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he observed that there are two citizenships and therefore, two allegiances. He pointed out that under the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with the creation of dual allegiance by reason of retention of

G.R. No. 160869

May 11, 2007

AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR GUMANGAN CALILUNG, Petitioner, vs. THE HONORABLE SIMEON DATUMANONG, in his official capacity as the Secretary of Justice, Respondent. DECISION QUISUMBING, J.: This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of Civil Procedure. Petitioner filed the instant petition against respondent, then Secretary of Justice Simeon Datumanong, the official tasked to implement laws governing citizenship.1 Petitioner prays that a writ of prohibition be issued to stop respondent from implementing Republic Act No. 9225, entitled "An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending for the Purpose Commonwealth Act No. 63, As Amended, and for Other Purposes." Petitioner avers that Rep. Act No. 9225 is unconstitutional as it violates Section 5, Article IV of the 1987 Constitution that states, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29, 2003, reads: SECTION 1. Short Title.-This Act shall be known as the "Citizenship Retention and Reacquisition Act of 2003." SEC. 2. Declaration of Policy.-It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

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foreign citizenship and the reacquisition of Philippine citizenship, there will now be a violation of the Constitution Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the reacquisition of Philippine citizenship by speedy means. However, he said that in one sense, it addresses the problem of dual citizenship by requiring the taking of an oath. He explained that the problem of dual citizenship is transferred from the Philippines to the foreign country because the latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He added that this is a matter which the Philippine government will have no concern and competence over. Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is involved. Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did not require an oath of allegiance. Since the measure now requires this oath, the problem of dual allegiance is transferred from the Philippines to the foreign country concerned, he explained. xxxx Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign citizenship and therefore still owes allegiance to the foreign government, and at the same time, owes his allegiance to the Philippine government, such that there is now a case of dual citizenship and dual allegiance. Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. However, he said that this is not a matter that he wishes to address in Congress because he is not a member of a foreign parliament but a Member of the House. xxxx Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national interest should be dealt with by law. However, he said that the dual allegiance problem is not addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is hereby declared the policy of the State that all citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed that what the bill does is recognize Philippine citizenship but says nothing about the other citizenship. Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that foreign country. The original Bill had left it at this stage, he explained. In the present measure, he clarified, a person is required to take an oath and the last he utters is one of allegiance to the country. He then said that the problem of dual allegiance is no longer the problem of the Philippines but of the other foreign country.4 (Emphasis supplied.)

WHEREFORE, the petition is hereby DISMISSED for lack of merit. From the above excerpts of the legislative record, it is clear that the intent of the legislature in drafting Rep. Act No. 9225 is to do away with the provision in Commonwealth Act No. 635 which takes away Philippine citizenship from natural-born Filipinos who become naturalized citizens of other countries. What Rep. Act No. 9225 does is allow dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of their naturalization as citizens of a foreign country. On its face, it does not recognize dual allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual allegiance and shifted the burden of confronting the issue of whether or not there is dual allegiance to the concerned foreign country. What happens to the other citizenship was not made a concern of Rep. Act No. 9225. Petitioner likewise advances the proposition that although Congress has not yet passed any law on the matter of dual allegiance, such absence of a law should not be justification why this Court could not rule on the issue. He further contends that while it is true that there is no enabling law yet on dual allegiance, the Supreme Court, through Mercado v. Manzano,6 already had drawn up the guidelines on how to distinguish dual allegiance from dual citizenship.7 For its part, the OSG counters that pursuant to Section 5, Article IV of the 1987 Constitution, dual allegiance shall be dealt with by law. Thus, until a law on dual allegiance is enacted by Congress, the Supreme Court is without any jurisdiction to entertain issues regarding dual allegiance.8 To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not a self-executing provision. The legislature still has to enact the law on dual allegiance. In Sections 2 and 3 of Rep. Act No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.9 Congress was given a mandate to draft a law that would set specific parameters of what really constitutes dual allegiance.10 Until this is done, it would be premature for the judicial department, including this Court, to rule on issues pertaining to dual allegiance. Neither can we subscribe to the proposition of petitioner that a law is not needed since the case of Mercado had already set the guidelines for determining dual allegiance. Petitioner misreads Mercado. That case did not set the parameters of what constitutes dual allegiance but merely made a distinction between dual allegiance and dual citizenship. Moreover, in Estrada v. Sandiganbayan,11 we said that the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence, in determining whether the acts of the legislature are in tune with the fundamental law, we must proceed with judicial restraint and act with caution and forbearance.12 The doctrine of separation of powers demands no less. We cannot arrogate the duty of setting the parameters of what constitutes dual allegiance when the Constitution itself has clearly delegated the duty of determining what acts constitute dual allegiance for study and legislation by Congress. SO ORDERED. G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J.L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent. CRUZ, J.: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy

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and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of

Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours,

Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We

WILLIAM L. WHITTAKER Clerk by: (Sgd.)

ARACELI V. BAREN

44

can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is farfetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was

discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. 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, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. [G.R. No. 120295. June 28, 1996] JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. [G.R. No. 123755. June 28, 1996] RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. DECISION PANGANIBAN, J.: The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. G.R. No. 123755. This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated on December 19,19952 and another Resolution of the Comelec en bane promulgated February 23, 19963 denying petitioner's motion for reconsideration. The Facts On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition:6 "WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is cancelled." The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division. The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon: Antonio H. Escudero, Jr. Juan G. Frivaldo 51,060 73,440

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RaulR.Lee Isagani P. Ocampo

53,304 1,925 On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition." The Issues in G.R. No. 123755 Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions":15 "First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition; Second- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor; Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon." G.R. No. 120295 This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows: 1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines"; 2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and 3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo. The Facts and the Issue The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder: "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 the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election." (Italics supplied.) the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law," i.e., "not later than fifteen days before the election." Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void. By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda. The Consolidated Issues From the foregoing submissions, the consolidated issues may be restated as follows: 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon? 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that : said petition is not "a pre-proclamation case, an election protest or a quo warranto case"? 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence? 5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"? The First Issue: Frivaldo's Repatriation

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of Sorsogon. In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was proclaimed governor of Sorsogon. On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said position of governor. On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon"; thus: "PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition. Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation. Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon. Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof."

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this.

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The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: "Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. xxx xxx xxx

First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23 This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum based on the copy furnished us by Lee did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist."26 The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress once createdto deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well. Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996. On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies. Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to Public office" Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on. Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: * a citizen of the Philippines; * a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected;

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R. A. 7160). Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects. Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot Leeshould have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship. En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall now discuss in seriatim.

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* a resident therein for at least one (1) year immediately preceding the day of the election; * able to read and write Filipino or any other local language or dialect." * In addition, "candidates for the position of governor x x x must be at least twentythree (23) years of age on election day." From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day). Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995the very day32 the term of office of governor (and other elective officials) beganhe was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore

stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registrationnot the actual votingis the core of this "qualification." In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else. Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36 So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.37 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected. There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible. But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETRO ACTED to the date of the filing of his application on August 17,1994. It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are "healing acts x x x curing defects and adding to the means of enforcing existing obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43 A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these womenthe right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation. The Solicitor General44 argues: "By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.

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Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative." In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein. At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994? While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events i.e., situations and transactions existing even before the law came into being in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty. Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo having already renounced his American citizenship was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.47 And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case. And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot. Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship restored as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date. It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50 On this point, we quote from the assailed Resolution dated December 19, 1995:51 "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that

such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.52 The Second Issue: Is Lack of Citizenship a Continuing Disqualification? Lee contends that the May 1,1995 Resolution53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines." We do not agree. It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55 "The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines.' This declaration of the Supreme Court, however, was in connection with the 1992 elections." Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held: "Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands." The Third Issue: Comelec's Jurisdiction Over The Petition in SPC No. 95-317 Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995

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"beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action." This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled: "The petitioner argues that after proclamation and assumption of office, a preproclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)" The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same. The Fourth Issue: Was Lee's Proclamation Valid Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a second placer." In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows: "The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected." But such holding is qualified by the next paragraph, thus: "But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate,

much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9,1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case." The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety", in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vicegovernor and not Leeshould be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo: "The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office." Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected. The Fifth Issue: Is Section 78 of the Election Code Mandatory? In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78 of the Omnibus Election Code which reads as follows: "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 the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election" (italics supplied.) This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996, which both upheld his

election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus: "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." (Italics supplied) Refutation of Mr. Justice Davide's Dissent In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings. Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

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Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992, but only in the 1995 elections. Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship." Since our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final. The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge? Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc. Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor. In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Government Code, as well as regarding Mr.

Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision. Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule! At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience. EPILOGUE In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: "x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (citations omitted)."67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed. In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. WHEREFORE, in consideration of the foregoing: (1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED.

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(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. SO ORDERED. EN BANC

Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: "No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected."7 xxxx

For reasons hereafter discussed, the motion for reconsideration cannot prosper. Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily intended to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he or she has fully served three consecutive terms.16 In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay are the same. They are the same group of voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term. In Latasa v. Commission on Elections,17 which involved a similar question, this Court held that where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the terms. Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy. WHEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration18 dated July 25, 2008 assailing this Court's Resolution dated June 10, 2008 is DENIED with FINALITY. SO ORDERED. [G.R. No. 147927. February 4, 2002] RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents. DECISION QUISUMBING, J.: Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary restraining order, to nullify and set aside the resolution dated May 9, 2001 of public respondent Commission on Elections in Comelec SPA No. 01-055, which granted the motion for reconsideration and declared private respondent Ramon Y.

G.R. No. 182867

November 25, 2008 In his Answer,8 Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.9 Thus, he argued that his third term was actually just his first in the new political unit and that he was accordingly entitled to run for two more terms. Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time, he would not have run for office in 1994 as he was looking forward to the election in 2007.10 On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy: WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy. SO ORDERED.11 Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008. Aggrieved, Laceda filed a petition for certiorari before this Court. On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration. Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated in Lonzanida v. Commission on Elections12 for the application of the three-term prohibition in Section 4313 of the Local Government Code.14 Laceda argues that said case is inapplicable since it involved the position of municipal mayor while the instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying the three-term limit.15

ROBERTO LACEDA, SR., petitioner, vs. RANDY L. LIMENA and COMMISSION ON ELECTIONS, respondents. RESOLUTION QUISUMBING, J.: From this Court's June 10, 2008 Resolution1 dismissing his petition for certiorari, petitioner Roberto Laceda, Sr. filed the instant motion for reconsideration,2 insisting that the Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated January 15, 20083 and May 7, 20084 in SPA No. 07-028 (BRGY). The facts are as follows: Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate5 against Laceda before the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No. 91646 which provides: SEC. 2. Term of Office.-The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years. No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. Limena likewise attached the following certification from the Department of the Interior and Local Government: THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District, Sorsogon City. was elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to run as Municipal Councilor.

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Talaga, Jr., qualified to run for Mayor in Lucena City for the May 14, 2001 election. Petitioner prays that votes cast in private respondents favor should not be counted; and should it happen that private respondent had been already proclaimed the winner, his proclamation should be declared null and void. The uncontroverted facts are as follows: Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private respondent was then the incumbent mayor. Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001. On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that Talagas candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution which provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but only for two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full term, in the contemplation of the law and the Constitution. He cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602, 611 (1999), as authority to the effect that to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions must concur, to wit: (a) that the official concerned has been elected for three consecutive terms in the same local government post, and (b) that he has fully served three (3) consecutive terms. On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of Candidacy was ordered withdrawn and/or cancelled.

On April 27, 2001, private respondent filed a motion for reconsideration reiterating that three (3) consecutive terms means continuous service for nine (9) years and that the two (2) years service from 1998 to 2000 by Tagarao who defeated him in the election of 1998 prevented him from having three consecutive years of service. He added that Tagaraos tenure from 1998 to 2000 could not be considered as a continuation of his mayorship. He further alleged that the recall election was not a regular election, but a separate special election specifically to remove incompetent local officials. On May 3, 2001, petitioner filed his Opposition to private respondents Motion for Reconsideration stating therein that serving the unexpired term of office is considered as one (1) term.[1] Petitioner further contended that Article 8 of the Constitution speaks of term and does not mention tenure. The fact that private respondent was not elected in the May 1998 election to start a term that began on June 30, 1998 was of no moment, according to petitioner, and what matters is that respondent was elected to an unexpired term in the recall election which should be considered one full term from June 30, 1998 to June 30, 2001. On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr.. It reversed the First Divisions ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption in the continuity of his service as Mayor of Lucena City. On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City. Petitioner is now before this Court, raising the sole issue: WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS.[2] Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14, 2001 elections?[3] This issue hinges on whether, as provided by the Constitution, he had already served three consecutive terms in that office. Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because the unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to June 30, 2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4) consecutive terms of 10 years, in violation of Section 8, Article X of 1987 Constitution[4] and Section 43 (b) of R.A. 7160, known as the Local Government Code. Section 43. Term of Office.

xxx (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a second re-election in 1998 and between June 30, 1998 to May 12, 2000, during Tagaraos incumbency, he was a private citizen, thus he had not been mayor for 3 consecutive terms. In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive terms having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as city mayor of Lucena. The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held, To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following case or situation: xxx Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. xxx To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said, This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. Accordingly, COMELECs ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections.

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Patently untenable is petitioners contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987 Constitution.[5] To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that if one is elected representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed.*6+ As pointed out by the COMELEC en banc, Fr. Bernas comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress.[7] Neither can respondents victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as voluntary renunciation for clearly it is not. In Lonzanida vs. COMELEC, we said: The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.[8] WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner. [G.R. No. 135150. July 28, 1999] ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, repondents. DECISION GONZAGA-REYES, J.: This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales. Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast

in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void. Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled: PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election. Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant. Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanidas assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998. Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC no. 6-97 entitled Juan Alvez, ProtestantAppellee vs. Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after

he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure. Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be herd and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commissions jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioners assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections. The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of service of a term and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks of service of a term which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification. The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was no t lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioners proclamation. The petition has merit. Section 8, Art. X of the Constitution provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more

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than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. The issue before us is whether petitioner Lonzanidas assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials. The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty.[1] The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office.[2] The scope of the constitutional provision barring elective officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr., vs. COMELEC and Jose Capco, Jr.[3] where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the officials assumption of office is by reason of election. This Court stated:*4+ Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the

idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, his particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees stand. xxxx xxxx xxxx

the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term. The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all[5] and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest.[6] Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear inten t of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term porvided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such officials from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be one for which the the official concerned was elected. The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. This Court held that two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In

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The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial courts decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election. The petitioners contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioners proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad[7] that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits. Section 6 of RA 6646 specifically mandates that: Sec. 6. Effects of disqualification Case.- any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed. The court stated: Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word shall signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. Theimplication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which

remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R. A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails. Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of thedisqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court heldTime and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondents petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC xxx Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation. ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside. SO ORDERED.

G.R. No. 163295

January 23, 2006

FRANCIS G. ONG, Petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents. x---------------------x G.R. No. 163354 January 23, 2006

ROMMEL G. ONG, Petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents. DECISION GARCIA, J.: Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc. The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31, 20042 of the COMELECs First Division. The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295. Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions. The recourse stemmed from the following essential and undisputed factual backdrop: Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor. On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated on the threeconsecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections.

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To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,4 albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a resolution5 dismissing the said petition of Alegre, rationalizing as follows: We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the "legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because "he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned when *the RTC] decided with finality that [he] lost in the May 1998 elections." (Words in bracket and emphasis in the original). Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra. On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution6 reversing the March 31, 2004 resolution of the COMELECs First Division and thereby (a) declaring Francis "as disqualified to run for mayor of San Vicente, Camarines Norte in the May 10, 2004"; (b) ordering the deletion of Francis name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the Nationalist Peoples Coalition, which immediately nominated his older brother, Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his brother Francis.

The following undisputed events then transpired: 1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong. 2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter7 to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs inaction on Alegre's petition to cancel Rommels certificate of candidacy, the name "Rommel Ong" be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino. 3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 20049 addressed to PES Liza D. Zabala-Cario, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.10 Said Memorandum partly stated: The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated further that: "x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy." In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added]. 4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board.11 5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.12

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother Rommels petition in G.R. No. 163354 followed barely a week after. In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated.13 Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegres Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic.14 The issues for resolution of the Court are: In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray. In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommels certificate of candidacy in the same mayoralty election as substitute for his brother Francis. A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec15, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of the Local Government Code restates the same rule as follows: Sec. 43. Term of Office.

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xxx xxx xxx (b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.16 With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,17 that it was Francis opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in, Lonzanida vs. Comelec,18 citing Borja vs. Comelec19. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term." The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence: As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality20 is now of little moment and need not detain us any longer. Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy21 provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. Not to be overlooked is the Courts holding in Miranda vs. Abaya,22 that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

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In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and academic. WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED. Costs against petitioners. SO ORDERED.

for a fourth term therefore violated the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160. The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered. The COMELEC en banc refused to reconsider the Second Divisions ruling in its October 7, 2008 Resolution; hence, the PRESENT PETITION raising the following ISSUES: 1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and 2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA 7160 Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an interruption that allowed him to run for a 4th term. THE COURTS RULING

As worded, the constitutional provision fixes the term of a local elective office and limits an elective officials stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X. Significantly, this provision refers to a "term" as a period of time three years during which an official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows: The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officers term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied].1avvphi1 A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another." The "limitation" under this first branch of the provision is expressed in the negative "no such official shall serve for more than three consecutive terms." This formulation no more than three consecutive terms is a clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is clear reference is to the term, not to the service that a public official may render.1awphi1 In other words, the limitation refers to the term. The second branch relates to the provisions express initiative to prevent any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This declaration complements the term limitation mandated by the first branch. A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent. The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the surenderees own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of the three-term

EN BANC G.R. No. 184836 December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, vs. COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents. DECISION

We find the petition meritorious. BRION, J.: General Considerations Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)? The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule. The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. THE ANTECEDENTS The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced. This Court, however, subsequently lifted the Sandiganbayans suspension order; hence, he resumed performing the functions of his office and finished his term. In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilos certificate of candidacy or to cancel it on the ground that he had been elected and had served for three terms; his candidacy The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective officials term. To be sure, preventive suspension, as an interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession. a. The Three-term Limit Rule: The Constitutional Provision Analyzed Section 8, Article X of the Constitution states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case.

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limit rule, such loss of title is not considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation. The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further light on the extent of the term "voluntary renunciation": MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI]. MR DAVIDE. Yes. MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment? MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term. MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and resignation? MR. DAVIDE. It is more general, more embracing.6 From this exchange and Commissioner Davides expansive interpretation of the term "voluntary renunciation," the framers intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davides view is consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it suggests. This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive suspension vis--vis term limitation with this firm mindset. b. Relevant Jurisprudence on the Three-term Limit Rule Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provisions contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of. Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. We

ruled that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said: The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied] Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule inapplicable. Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated. Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and the deleterious effect of a contrary view that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to rule differently from Lonzanida. In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely." Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court

signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception. Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case presented the question of whether the disqualification applies if the official lost in the regular election for the supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELECs ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term. Socrates v. Commission on Elections11 also tackled recall vis--vis the three-term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorns favor, ruling that: After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. xxxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term.12 Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the

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third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said: This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.14 Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not become a private citizen during the interim. The common thread that identifies Montebon with the rest, however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor an interruption that effectively placed him outside the ambit of the three-term limit rule. c. Conclusion Based on Law and Jurisprudence From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary

loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective officials continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption. Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holders term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost. To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance fixes an elective officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of refers only to the elective officials voluntary relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:16 Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied]. Preventive Suspension and the Three-Term Limit Rule a. Nature of Preventive Suspension Preventive suspension whether under the Local Government Code,17 the Anti-Graft and Corrupt Practices Act,18 or the Ombudsman Act19 is an interim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability. Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-

Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability. Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far as a temporary prohibition on the exercise of the functions of the officials office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo. That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws20 themselves that the courts can enforce when these limitations are transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme situation that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election officials term. Term limitation and preventive suspension are two vastly different aspects of an elective officials service in office and they do not overlap. As already mentioned above, preventive suspension involves protection of the service and of the people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion concept interruption of a term on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to render service during an unbroken term; in the context of term limitation, interruption of service occurs after there has been a break in the term. b. Preventive Suspension and the Intent of the Three-Term Limit Rule Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is

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barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary some of them personal and some of them by operation of law that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is. c. Preventive Suspension and Voluntary Renunciation Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is by its very nature the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable. But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule. Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule. Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this sense,

recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption. Conclusion To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayanimposed preventive suspension in 2005, as preventive suspension does not interrupt an elective officials term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the Constitution when it granted due course to Asilos certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the contemplation of law.21 WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo. SO ORDERED.

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