G.R. No. 195649.

April 16, 2013.*

CASAN MACODE MAQUILING, petitioner, vs. COMMISSION ON

ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA,
respondents.
Citizenship; Renunciation of Philippine Citizenship; Commonwealth Act
No. 63; While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting renunciation and loss
of Philippine citizenship, it is nevertheless an act which repudiates the very
oath of renunciation required for a former Filipino citizen who is also a citizen
of another country to be qualified to run for a local elective position.While
the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship, it is nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position. When
Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation
that he absolutely and perpetually renounce(s) all allegiance and fidelity to
the UNITED STATES OF AMERICA and that he divest(s) [him]self of full
employment of all civil and political rights and privileges of the United States
of America. We agree with the COMELEC En Banc that such act of using a
foreign passport does not divest Arnado of his Filipino citizenship, which he
acquired by repatriation. However, by representing himself as an American
citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing ones foreign citizenship
is fatal to Arnados bid for public office, as it effectively imposed on him a
disqualification to run for an elective local position.
Same; Same; Election Law; The citizenship requirement for elective
public office is a continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act which
violates the oath of renunciation opens the citizenship issue to attack.The
citizenship requirement for elective public office is a continuing one. It must
be possessed not just at the time of the renunciation of the foreign citizenship
but continuously. Any act which violates the oath of renunciation opens the
citizenship issue to attack. We agree with the pronouncement of the
COMELEC First Division that Arnados act of consistently using his US
passport effectively negated his Affidavit of Renunciation. This does not
mean, that he failed to comply with the twin requirements under R.A. No.

9225, for he in fact did. It wasafter complying with the requirements that he
performed positive acts which effectively disqualified him from running for
an elective public office pursuant to Section 40(d) of the Local Government
Code of 1991.
Same; Same; Same; While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or appointment to
public office are required to renounce their foreign citizenship to be deserving
of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.Citizenship is not a matter of
convenience. It is a badge of identity that comes with attendant civil and
political rights accorded by the state to its citizens. It likewise demands the
concomitant duty to maintain allegiance to ones flag and country. While
those who acquire dual citizenship by choice are afforded the right of
suffrage, those who seek election or appointment to public office are required
to renounce their foreign citizenship to be deserving of the public trust.
Holding public office demands full and undivided allegiance to the Republic
and to no other. We therefore hold that Arnado, by using his US passport
after renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code applies to
his situation. He is disqualified not only from holding the public office but
even from becoming a candidate in the May 2010 elections.
Election Law; When a person who is not qualified is voted for and
eventually garners the highest number of votes, even the will of the electorate
expressed through the ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent asunder the very law
that sets forth the qualifications and disqualifications of candidates.The
ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires
certain qualifications to be possessed or that certain disqualifications be not
possessed by persons desiring to serve as elective public officials, those
qualifications must be met before one even becomes a candidate. When a
person who is not qualified is voted for and eventually garners the highest
number of votes, even the will of the electorate expressed through the ballot
cannot cure the defect in the qualifications of the candidate. To rule
otherwise is to trample upon and rent asunder the very law that sets forth
the qualifications and disqualifications of candidates. We might as well write
off our election laws if the voice of the electorate is the sole determinant of
who should be proclaimed worthy to occupy elective positions in our republic.
Same; When there are participants who turn out to be ineligible, their
victory is voided and the laurel is awarded to the next in rank who does not

possess any of the disqualifications nor lacks any of the qualifications set in
the rules to be eligible as candidates.We have ruled in the recent cases
of Aratea v. COMELEC, 683 SCRA 105 (2012) and Jalosjos v. COMELEC,
683 SCRA 1 (2012), that a void COC cannot produce any legal effect. Thus,
the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election. Even when the votes for the ineligible
candidate are disregarded, the will of the electorate is still respected, and
even more so. The votes cast in favor of an ineligible candidate do not
constitute the sole and total expression of the sovereign voice. The votes cast
in favor of eligible and legitimate candidates form part of that voice and must
also be respected. As in any contest, elections are governed by rules that
determine the qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be
ineligible, their victory is voided and the laurel is awarded to the next in rank
who does not possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.
Same; Knowledge by the electorate of a candidates disqualification is
not necessary before a qualified candidate who placed second to a disqualified
one can be proclaimed as the winner.The electorates awareness of the
candidates disqualification is not a prerequisite for the disqualification to
attach to the candidate. The very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by the electorate of a candidates
disqualification is not necessary before a qualified candidate who placed
second to a disqualified one can be proclaimed as the winner. The secondplacer in the vote count is actually the first-placer among the qualified
candidates. That the disqualified candidate has already been proclaimed and
has assumed office is of no moment. The subsequent disqualification based on
a substantive ground that existed prior to the filing of the certificate of
candidacy voids not only the COC but also the proclamation.
Same; Citizenship; Dual Citizenship; The disqualifying circumstance
affecting Arnado is his citizenship. Arnado was both a Filipino and an
American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local
Government Code; The affirmation of Arnados disqualification, although
made long after the elections, reaches back to the filing of the certificate of
candidacy. Arnado is declared to be not a candidate at all in the May 2010
elections.The disqualifying circumstance affecting Arnado is his citizenship.
As earlier discussed, Arnado was both a Filipino and an American citizen
when he filed his certificate of candidacy. He was a dual citizen disqualified
to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement The following persons are disqualified
from running for any elective local position. The prohibition serves as a bar
against the individuals who fall under any of the enumeration from
participating as candidates in the election. With Arnado being barred from
even becoming a candidate, his certificate of candidacy is thus rendered void
from the beginning. It could not have produced any other legal effect except
that Arnado rendered it impossible to effect his disqualification prior to the
elections because he filed his answer to the petition when the elections were
conducted already and he was already proclaimed the winner. To hold that
such proclamation is valid is to negate the prohibitory character of the
disqualification which Arnado possessed even prior to the filing of the
certificate of candidacy. The affirmation of Arnados disqualification,
although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the
May 2010 elections. Arnado being a non-candidate, the votes cast in his favor
should not have been counted. This leaves Maquiling as the qualified
candidate who obtained the highest number of votes. Therefore, the rule on
succession under the Local Government Code will not apply.
CARPIO, J., Concurring Opinion:
Election Law; Citizenship; View that Philippine courts have no power to
declare whether a person possesses citizenship other than that of the
Philippines.Philippine courts have no power to declare whether a person
possesses citizenship other than that of thePhilippines. In Mercado v.
Manzano, 307 SCRA 630 (1999), Constitutional Commissioner Joaquin G.
Bernas was quoted as saying, [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. In the present case, we have no authority to declare that Arnado is
an American citizen. Only the courts of the USA, using American law, have
the conclusive authority to make an assertion regarding Arnados American
citizenship.
Same; Same; Renunciation of Citizenship; Republic Act No. 9225; View
that Arnados use of his American passport after his execution of an Affidavit
of Renunciation of his American Citizenship is a retraction of his
renunciation; It is as if he never renounced his American citizenship at all.
Arnado, therefore, failed to comply with the twin requirements of swearing to
an Oath of Allegiance and executing a Renunciation of Foreign Citizenship as
found in Republic Act No. 9225.Arnados use of his American passport after

his execution of an Affidavit of Renunciation of his American Citizenship is

a retraction of his renunciation. When Arnado filed his Certificate of
Candidacy on 30 November 2009, there was no longer an effective
renunciation of his American citizenship. It is as if he never renounced his
American citizenship at all. Arnado, therefore, failed to comply with the twin
requirements of swearing to an Oath of Allegiance and executing a
Renunciation of Foreign Citizenship as found in Republic Act No. 9225. We
previously discussed the distinction betweendual citizenship and dual
allegiance, as well as the different acts required of dual citizens, who may
either have involuntary dual citizenship or voluntary dual allegiance, who
desire to be elected to Philippine public office in Cordora v. COMELEC, 580
SCRA 12 (2009).
Same; Same; Same; Stray Votes; View that Arnado used his USA
passport after his Renunciation of American Citizenship and before he filed
his Certificate of Candidacy. This positive act of retraction of his renunciation
before the filing of the Certificate of Candidacy renders Arnados Certificate of
Candidacy void ab initio. Therefore, Arnado was never a candidate at any
time, and all the votes for him are stray votes.Arnado used his USA
passportafter his Renunciation of American Citizenship and before he filed
his Certificate of Candidacy. This positive act of retraction of his renunciation
before the filing of the Certificate of Candidacy renders Arnados Certificate
of Candidacy void ab initio. Therefore, Arnado was never a candidate at any
time, and all the votes for him are stray votes. We reiterate our ruling
in Jalosjos v. COMELEC, 683 SCRA 1 (2012), on this matter: Decisions of
this Court holding that the second-placer cannot be proclaimed winner if the
first-placer is disqualified or declared ineligible should be limited to
situations where the certificate of candidacy of the first-placer was valid at
the time of filing but subsequently had to be cancelled because of a violation
of law that took place, or a legal impediment that took effect, after the filing
of the certificate of candidacy. If the certificate of candidacy is void ab initio,
then legally the person who filed such void certificate of candidacy was never
a candidate in the elections at any time. All votes for such non-candidate are
stray votes and should not be counted. Thus, such non-candidate can never be
a first-placer in the elections. If a certificate of candidacy void ab initio is
cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a
certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the
certificate of candidacy is void from the very beginning. This is the more
equitable and logical approach on the effect of the cancellation of a certificate

of candidacy that is void ab initio. Otherwise, a certificate of candidacy

voidab initio can operate to defeat one or more valid certificates of candidacy
for the same position.
BRION, J., Dissenting Opinion:
Citizenship; Republic Act No. 9225; View that RA 9225 was enacted to
allow the re-acquisition and retention of Philippine citizenship by: 1) naturalborn citizens who were deemed to have lost their Philippine citizenship by
reason of their naturalization as citizens of a foreign country; and 2) naturalborn citizens of the Philippines who, after the effectivity of the law, became
citizens of a foreign country.RA 9225 was enacted to allow the re-acquisition
and retention of Philippine citizenship by: 1) natural-born citizens who were
deemed to have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country; and 2) natural-born citizens of
the Philippines who, after the effectivity of the law, became citizens of a
foreign country. The law provides that they are deemed to have re-acquired
or retained their Philippine citizenship upon taking the oath of allegiance. x x
x Arnado falls under the first category as a natural-born Filipino citizen who
was deemed to have lost his Philippine citizenship upon his naturalization as
an American citizen.
Same; Same; Renunciation of Citizenship; View that Arnados use of his
US passport in travelling back to the Philippines on November 24, 2009 was
an isolated act that could not, by itself, be an express renunciation of the
Philippine citizenship he adopted as his sole citizenship under RA
9225.Arnados Philippine passport was issued on June 18, 2009, but he was
not immediately notified of the issuance so that and he only received his
passport three months after or sometime in September 2009. Clearly, when
Arnado travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he
had no Philippine passport that he could have used to travel to the
United States to attend to the winding up of his business and other
affairs in America. A travel document issued by the proper Philippine
government agency (e.g., a Philippine consulate office in the US) would not
suffice because travel documents could not be used; they are issued only in
critical instances, as determined by the consular officer, and allow the bearer
only a direct, one-way trip to the Philippines. Although Arnado received his
Philippine passport by the time he returned to the Philippines on November
24, 2009, he could not use this without risk of complications with the US
immigration authorities for using a travel document different from what he
used in his entry into the US on July 29, 2009. Plain practicality then
demanded that the travel document that he used to enter the US on July 29,
2009 be the same travel document he should use in leaving the country on

November 24, 2009. Given these circumstances, Arnados use of his US

passport in travelling back to the Philippines on November 24, 2009 was an
isolated act that could not, by itself, be an express renunciation of the
Philippine citizenship he adopted as his sole citizenship under RA 9225.
Same; Same; Same; View that the ponencia fails to consider that under
RA 9225, natural-born citizens who were deemed to have lost their Philippine
citizenship because of their naturalization as citizens of a foreign country and
who subsequently complied with the requirements of RA 9225, are deemed not
to have lost their Philippine citizenship.I disagree with the ponencias view
that by using his US passport and representing himself as an American
citizen, Arnado effectively reverted to the status of a dual
citizen. Interestingly, the ponencia failed to cite any law or controlling
jurisprudence to support its conclusion, and thus merely makes a
bare assertion. The ponencia fails to consider that under RA 9225, naturalborn citizens who were deemed to have lost their Philippine citizenship
because of their naturalization as citizens of a foreign country and who
subsequently complied with the requirements of RA 9225, are deemed not to
have lost their Philippine citizenship.RA 9225 cured and negated the
presumption made under CA 63. Hence, as in Japzon, Arnado assumed
pure Philippine citizenship again after taking the Oath of Allegiance and
executing an Oath of Renunciation of his American citizenship under RA
9225.
Same; Same; Same; View that the law requires express renunciation in
order to lose Philippine citizenship. The term means a renunciation that is
made distinctly and explicitly and is not left to inference or implication; it is a
renunciation manifested by direct and appropriate language, as distinguished
from that which is inferred from conduct.I loathe to rule that Arnados use
of his US passport amounts to an express renunciation of his Filipino
citizenship, when its use was an isolated act that he sufficiently explained
and fully justified. I emphasize that the law requires express
renunciation in order to lose Philippine citizenship. The term means a
renunciation that is made distinctly and explicitly and is not left to
inference or implication; it is a renunciation manifested by direct and
appropriate language, as distinguished from that which is inferred
from conduct.
Same; Same; Same; View that in the absence of clear and affirmative
acts of re-acquiring US citizenship either by naturalization or by express acts
(such as the re-establishment of permanent residency in the United States),
Arnados use of his US passport cannot but be considered an isolated act that
did not undo his renunciation of his US citizenship.In the present case,

other than the use of his US passport in two trips to and from the United
States, the record does not bear out any indication, supported by evidence, of
Arnados intention to re-acquire US citizenship. To my mind, in the absence
of clear and affirmative acts of re-acquiring US citizenship either by
naturalization or by express acts (such as the re-establishment of permanent
residency in the United States), Arnados use of his US passport cannot but
be considered an isolated act that did not undo his renunciation of his US
citizenship. What he might in fact have done was to violate American law on
the use of passports, but this is a matter irrelevant to the present case. Thus,
Arnado remains to be a pure Filipino citizen and the loss of his Philippine
citizenship cannot be presumed or inferred from his isolated act of using his
US passport for travel purposes.
Same; Same; Same; View that Arnado sufficiently justified the use of his
US passport despite his renunciation of his US citizenship; when he travelled
on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine
passport that he could have used to travel to the United States to attend to the
business and other affairs that he was leaving; He consistently used his
Philippine passport for travel after November 24, 2009, the true character of
his use of his US passport stands out and cannot but be an isolated and
convenient act that did not negate his Oath of Renunciation.I disagree
however, with the conclusion that Arnado effectively negated his Oath of
Renunciation when he used his US passport for travel to the United States.
To reiterate if only for emphasis, Arnado sufficiently justified the use of his
US passport despite his renunciation of his US citizenship; when he travelled
on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine
passport that he could have used to travel to the United States to attend to
the business and other affairs that he was leaving. If at all, he could be
faulted for using his US passport by the time he returned to the Philippines
on November 24, 2009 because at that time, he had presumably received his
Philippine passport. However, given the circumstances explained above and
that he consistently used his Philippine passport for travel after November
24, 2009, the true character of his use of his US passport stands out and
cannot but be an isolated and convenient act that did not negate his Oath of
Renunciation.429
ABAD, J., Separate and Concurring Opinion:
Citizenship; Republic Act No. 9225; View that Section 5(2) of Republic
Act 9225 provides the means by which a former Philippine citizen who has
acquired foreign citizenship to later reacquire his old citizenship by complying
with certain requirements.Sec. 5(2) of Republic Act 9225 provides the means

by which a former Philippine citizen who has acquired foreign citizenship to

later reacquire his old citizenship by complying with certain requirements.
Respondent Rommel Arnado complied with these requirements for regaining
Philippine citizenship but, because he wanted to run for public office, he also
renounced his United States (U.S.) Citizenship when he filed his certificate of
candidacy, conformably with the provisions of Republic Act 9225 that reads:
(2) Those seeking elective public 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. But his compliance
with the above was challenged before the Commission on Elections (Comelec)
because Arnado afterwards twice used his U.S. passport in going to and
coming from the U.S., the country whose citizenship he had renounced.
Same; Same; Renunciation of Citizenship; View that Section 349 (a)(5) of
the Immigration and Nationality Act (INA) provides that (a) A person who is
a national of the United States whether by birth or naturalization, shall lose
his nationality by voluntarily performing any of the following acts with the
intention of relinquishing United States nationalityx x x (5) making a formal
renunciation of nationality before a diplomatic or consular officer of the
United States in a foreign state, in such form as may be prescribed by the
Secretary of State. He does not effectively renounce his citizenship who does
not comply with what his country requires of him.Section 349 (a)(5) of the
Immigration and Nationality Act (INA) sets the procedure that those who
have moved their residence to other countries must observe when renouncing
their U.S. citizenship. It provides that (a) A person who is a national of the
United States whether by birth or naturalization, shall lose his nationality by
voluntarily performing any of the following acts with the intention of
relinquishing United States nationalityx x x (5) making a formal
renunciation of nationality before a diplomatic or consular officer of the
United States in a foreign state, in such form as may be prescribed by the
Secretary of State. He does not effectively renounce his citizenship who does
not comply with what his country requires of him.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Rexie Efren A. Bugaring & Associates Law Offices and Musico
Law Office for petitioner.

Federico R. Miranda for respondent Linog G. Balua.

Tomas O. Cabili and Rejoice S. Subejano for respondent Mayor
Rommel Arnado.
SERENO, C.J.:
The Case
This is a Petition for Certiorari under Rule 64 in conjunction with
Rule 65 of the Rules of Court to review the Resolutions of the
Commission on Elections (COMELEC). The Resolution1 in SPA No.
10-109(DC) of the COMELEC First Division dated 5 October 2010 is
being assailed for applying Section 44 of the Local Government Code
while the Resolution2 of the COMELEC En Banc dated 2 February
2011 is being questioned for finding that respondent Rommel Arnado
y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen
qualified to run for public office despite his continued use of a U.S.
passport.
Facts
Respondent Arnado is a natural born Filipino citizen.3 However, as
a consequence of his subsequent naturalization as a citizen of the
United States of America, he lost his Filipino citizenship.
Arnado applied for repatriation under Republic Act (R.A.) No. 9225
before the Consulate General of the Philippines in San Franciso, USA
and took the Oath of Allegiance to the Republic of the Philippines on
10 July 2008.4 On the same day an Order of Approval of his
Citizenship Retention and Re-acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear 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.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the

Republic and executed an Affidavit of Renunciation of his foreign
citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and
perpetually renounce all allegiance and fidelity to the UNITED STATES OF
AMERICA of which I am a citizen, and I divest myself of full employment of
all civil and political rights and privileges of the United States of America.

I solemnly swear that all the foregoing statement is true and correct to
the best of my knowledge and belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy

for Mayor of Kauswagan, Lanao del Norte, which contains, among
others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines
and will maintain true faith and allegiance thereto. I will obey the laws, legal
orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation
or purpose of evasion.8

On 28 April 2010, respondent Linog C. Balua (Balua), another

mayoralty candidate, filed a petition to disqualify Arnado and/or to
cancel his certificate of candidacy for municipal mayor of Kauswagan,
Lanao del Norte in connection with the 10 May 2010 local and
national elections.9 Respondent Balua contended that Arnado is not a
resident of Kauswagan, Lanao del Norte and that he is a foreigner,
attaching thereto a certification issued by the Bureau of Immigration
dated 23 April 2010 indicating the nationality of Arnado as USAAmerican.10
To further bolster his claim of Arnados US citizenship, Balua
presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been
using his US Passport No. 057782700 in enter_______________
8 Id., at p. 139, Annex B of Petition for Disqualification; Id., at p. 177, Annex 1
Memorandum for Respondent.
9 Id., at p. 134, Petition to Disqualify Rommel Cagoco Arnado and/or to Cancel his
Certificate of Candidacy for Municipal Mayor of Kauswagan, Lanao del Norte in
Connection with May 10, 2010 Local and National Elections.
10 Id., at p. 140, Certification.
11 Id., at p. 191, Exhibit A of Memorandum for Petitioner filed before the
Commission on Elections.
433

VOL. 696, APRIL 16, 2013

433
Maquiling vs. Commission on
Elections

ing and departing the Philippines. The said record shows that Arnado
left the country on 14 April 2009 and returned on 25 June 2009, and
again departed on 29 July 2009, arriving back in the Philippines on
24 November 2009.
Balua likewise presented a certification from the Bureau of
Immigration dated 23 April 2010, certifying that the name Arnado,
Rommel
Cagoco
appears
in
the
available
Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010,
with the following pertinent travel records:

DATE OF Arrival

01/12/2010

NATIONALITY

USA-AMERICAN

PASSPORT

057782700

DATE OF Arrival

03/23/2010

NATIONALITY

USA-AMERICAN

PASSPORT

05778270012

On 30 April 2010, the COMELEC (First Division) issued an

Order13 requiring the respondent to personally file his answer and
memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare
him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the
2010 elections where Arnado garnered the highest number of votes
and was subsequently proclaimed as the winning candidate for Mayor
of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified
answer, submitting the following documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic
of the Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia
Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of

Arnado, attesting that Arnado is a long-time resident of

Kauswagan and that he has been conspicuously and
continuously residing in his familys ancestral house in
Kauswagan;
3. Certification
from the Punong Barangay of Poblacion,
Kauswagan, Lanao del Norte dated 03 June 2010 stating that
Arnado is a bona fideresident of his barangay and that Arnado
went to the United States in 1985 to work and returned to the
Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local
Government Operations Office of Kauswagan stating that Dr.
Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from
January 1964 to June 1974 and from 15 February 1979 to 15
April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan
certifying that Arnado has been a registered voter of Kauswagan
since 03 April 2009.
The Ruling of the COMELEC First Division
Instead of treating the Petition as an action for the cancellation of
a certificate of candidacy based on misrepresentation,15the COMELEC
First Division considered it as one for disqualification. Baluas
contention that Arnado is a resident of the United States was
dismissed upon the finding that Balua failed to present any evidence
to support his contention,16 whereas the First Division still could not
conclude that Arnado failed to meet the one-year residency
requirement under the Local Government Code.17
In the matter of the issue of citizenship, however, the First
Division disagreed with Arnados claim that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with
the requirements of R.A. No. 9225, Arnados act of consistently using his US
passport after renouncing his US citizenship on 03 April 2009 effectively
negated his Affidavit of Renunciation.
xxxx
Arnados continued use of his US passport is a strong indication that
Arnado had no real intention to renounce his US citizenship and that he only
executed an Affidavit of Renunciation to enable him to run for office. We
cannot turn a blind eye to the glaring inconsistency between Arnados
unexplained use of a US passport six times and his claim that he re-acquired
his Philippine citizenship and renounced his US citizenship. As noted by the
Supreme Court in the Yu case, [a] passport is defined as an official document

of identity and nationality issued to a person intending to travel or sojourn in

foreign countries. Surely, one who truly divested himself of US citizenship
would not continue to avail of privileges reserved solely for US nationals.19

The dispositive portion of the Resolution rendered by the

COMELEC First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification
and/or to cancel the certificate of candidacy of Rommel C. Arnado is
hereby GRANTED. Rommel C. Arnados proclamation as the winning
candidate for Municipal Mayor of Kauswagan, Lanao del Nore is
hereby ANNULLED. Let the order of succession under Section 44 of the
Local Government Code of 1991 take effect.20

The Motion for Reconsideration and

the Motion for Intervention
Arnado sought reconsideration of the resolution before the
COMELEC En Bancon the ground that the evidence is insufficient to
justify the Resolution and that the said Resolution is contrary to
law.21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by
the evidence consisting of his Oath of Allegiance and the
Affidavit of Renunciation, which show that he has substantially
complied with the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his
American citizenship is not tantamount to a repudiation of his
Filipino citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;
3. He used his US passport only because he was not informed of
the issuance of his Philippine passport, and that he used his
Philippine passport after he obtained it;
4. Baluas petition to cancel the certificate of candidacy of Arnado
was filed out of time, and the First Divisions treatment of the
petition as one for disqualification constitutes grave abuse of
discretion amounting to excess of jurisdiction;23
5. He is undoubtedly the peoples choice as indicated by his
winning the elections;
6. His proclamation as the winning candidate ousted the
COMELEC from jurisdiction over the case; and

7. The proper remedy to question his citizenship is through a

petition forquo warranto, which should have been filed within
ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another
candidate for mayor of Kauswagan, and who garnered the second
highest number of votes in the 2010 elections, intervened in the case
and filed before the COMELEC En Banc a Motion for Reconsideration
together with an Opposition to Arnados Amended Motion for
Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44
of the Local Government Code is not applicable in this case.
Consequently, he claimed that the cancellation of Arnados candidacy
and the nullification of his proclamation, Maquiling, as the legitimate
candidate who obtained the highest number of lawful votes, should be
proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion
for Intervention and his Motion for Reconsideration. Arnado opposed
all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a
second-placer, Maquiling undoubtedly lost the elections and thus does
not stand to be prejudiced or benefitted by the final adjudication of
the case.
Ruling of the COMELEC En Banc
In its Resolution of 02 February 2011, the COMELEC En
Banc held that under Section 6 of Republic Act No. 6646, the
Commission shall continue with the trial and hearing of the action,
inquiry or protest even after the proclamation of the candidate whose
qualifications for office is questioned.
As to Maquilings intervention, the COMELEC En Banc also cited
Section 6 of R.A. No. 6646 which allows intervention in proceedings
for disqualification even after elections if no final judgment has been
rendered, but went on further to say that Maquiling, as the second
placer, would not be prejudiced by the outcome of the case as it agrees
with the dispositive portion of the Resolution of the First Division
allowing the order of succession under Section 44 of the Local
Government Code to take effect.
The COMELEC En Banc agreed with the treatment by the First
Division of the petition as one for disqualification, and ruled that the

petition was filed well within the period prescribed by law,24having

been filed on 28 April 2010, which is not later than 11 May 2010, the
date of proclamation.
However, the COMELEC En Bancreversed and set aside the
ruling of the First Division and granted Arnados Motion for
Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the
respondent embraced his Philippine citizenship as though he never became a
citizen of another country. It was at that time, April 3, 2009, that the
respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport [] does not operate to revert back his status as
a dual citizen prior to his renunciation as there is no law saying such. More
succinctly, the use of a US passport does not operate to unrenounce what he
has earlier on renounced. The First Divisions reliance in the case of In Re:
Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is
misplaced. The petitioner in the said case is a naturalized citizen who, after
taking his oath as a naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the conduct of citizens
who are not natural born, who acquire their citizenship by choice, thus
discarding their original citizenship. The Philippine State expects strict
conduct of allegiance to those who choose to be its citizens. In the present
case, respondent is not a naturalized citizen but a natural born citizen who
chose greener pastures by working abroad and then decided to repatriate to
supposedly help in the progress of Kauswagan. He did not apply for a US
passport after his renunciation. Thus the mentioned case is not on all fours
with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US
passport. Although he applied for a Philippine passport, the passport was
only issued on June 18, 2009. However, he was not notified of the issuance of
his Philippine passport so that he was actually able to get it about three (3)
months later. Yet as soon as he was in possession of his Philippine passport,
the respondent already used the same in his subsequent travels abroad. This
fact is proven by the respondents submission of a certified true copy of his
passport showing that he used the same for his travels on the following dates:

January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31,
2010 and June 4, 2010. This then shows that the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him
for his use. As probably pressing needs might be undertaken, the respondent
used whatever is within his control during that time.25

In his Separate Concurring Opinion, COMELEC Chairman Sixto

Brillantes cited that the use of foreign passport is not one of the
grounds provided for under Section 1 of Commonwealth Act No. 63
through which Philippine citizenship may be lost.
[T]he application of the more assimilativeprinciple of continuity of
citizenship is more appropriate in this case. Under said principle, once a
person becomes a citizen, either by birth or naturalization, it is assumed that
he desires to continue to be a citizen, and this assumption stands until he
voluntarily denationalizes or expatriates himself. Thus, in the instant case
respondent after reacquiring his Philippine citizenship should be presumed to
have remained a Filipino despite his use of his American passport in the
absence of clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of retention of
citizenship.26

On the other hand, Commissioner Rene V. Sarmiento dissented,

thus:
[R]espondent evidently failed to prove that he truly and wholeheartedly
abandoned his allegiance to the United States. The latters continued use of
his US passport and enjoyment of all the privileges of a US citizen despite his
previous renunciation of the afore-mention[ed] citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship.
Respondents submission with the twin requirements was obviously only for
the purpose of complying with the requirements for running for the
mayoralty post in connection with the May 10, 2010 Automated National and
Local Elections.
Qualifications for elective office, such as citizenship, are continuing
requirements; once any of them is lost during his incumbency, title to the
office itself is deemed forfeited. If a candidate is not a citizen at the time he
ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained
the plurality of votes for the mayoralty post cure the latters failure to comply
with the qualification requirements regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law,
his having received the highest number of votes does not validate his election.

It has been held that where a petition for disqualification was filed before
election against a candidate but was adversely resolved against him after
election, his having obtained the highest number of votes did not make his
election valid. His ouster from office does not violate the principle of vox
populi suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. To apply
it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives
who enacted the law.27

The Petition before the Court

Maquiling filed the instant petition questioning the propriety of
declaring Arnado qualified to run for public office despite his
continued use of a US passport, and praying that Maquiling be
proclaimed as the winner in the 2010 mayoralty race in Kauswagan,
Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on
the part of the COMELEC En Banc for ruling that Arnado is a
Filipino citizen despite his continued use of a US passport, Maquiling
now seeks to reverse the finding of the COMELEC En Banc that
Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En
Banc or to affirm the First Divisions disqualification of Arnado,
Maquiling also seeks the review of the applicability of Section 44 of
the Local Government Code, claiming that the COMELEC committed
reversible error in ruling that the succession of the vice mayor in
case the respondent is disqualified is in order.
Issues
There are three questions posed by the parties before this Court
which will be addressed seriatim as the subsequent questions hinge
on the result of the first.
The first question is whether or not intervention is allowed in a
disqualification case.
The second question is whether or not the use of a foreign passport
after renouncing foreign citizenship amounts to undoing a
renunciation earlier made.
A better framing of the question though should be whether or not
the use of a foreign passport after renouncing foreign citizenship
affects ones qualifications to run for public office.

The third question is whether or not the rule on succession in the

Local Government Code is applicable to this case.
Our Ruling
Intervention of a rival candidate in a disqualification case is
proper when there has not yet been any proclamation of the
winner.
Petitioner Casan Macode Maquiling intervened at the stage when
respondent Arnado filed a Motion for Reconsideration of the First
Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends
that he has an interest in the disqualification case filed against
Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer
should be proclaimed as the winner in the elections.
It must be emphasized that while the original petition before the
COMELEC is one for cancellation of the certificate of candidacy
and/or disqualification, the COMELEC First Division and the
COMELEC En Banc correctly treated the petition as one for
disqualification.
The effect of a disqualification case is enunciated in Section 6 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 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.

Mercado v. Manzano28 clarified the right of intervention in a

disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for
the disqualification against private respondent is clear from Section 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 candi
date 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.29

Clearly then, Maquiling has the right to intervene in the case. The
fact that the COMELEC En Banc has already ruled that Maquiling
has not shown that the requisites for the exemption to the secondplacer rule set forth in Sinsuat v. COMELEC30 are present and
therefore would not be prejudiced by the outcome of the case, does not
deprive Maquiling of the right to elevate the matter before this Court.
Arnados claim that the main case has attained finality as the
original petitioner and respondents therein have not appealed the
decision of the COMELEC En Banc, cannot be sustained. The
elevation of the case by the intervenor prevents it from attaining
finality. It is only after this Court has ruled upon the issues raised in
this instant petition that the disqualification case originally filed by
Balua against Arnado will attain finality.
The use of foreign passport after renouncing ones foreign
citizenship is a positive and voluntary act of representation as
to ones nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective
position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of
2003 provides:
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 in the Philippines shall meet the
qualification for holding such public office as required by the Constitution

10

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. x x x31

reacquisition of Philippine citizenship, there will now be a violation of the

Rommel Arnado took all the necessary steps to qualify to run for a
public office. He took the Oath of Allegiance and renounced his foreign
citizenship. There is no question that after performing these twin
requirements required under Section 5(2) of R.A. No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003, he became
eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but
twice: first, on 10 July 2008 when he applied for repatriation before
the Consulate General of the Philippines in San Francisco, USA, and
again on 03 April 2009 simultaneous with the execution of his
Affidavit of Renunciation. By taking the Oath of Allegiance to the
Republic, Arnado re-acquired his Philippine citizenship. At the time,
however, he likewise possessed American citizenship. Arnado had
therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his
American citizenship by executing an Affidavit of Renunciation, thus
completing the requirements for eligibility to run for public office.

constitutional injunction on dual allegiance as inimical to public interest. He

By renouncing his foreign citizenship, he was deemed to be solely a

Filipino citizen, regardless of the effect of such renunciation under the
laws of the foreign country.32
_______________
32 See excerpts of deliberations of Congress reproduced in AASJS v. Datumanong,
G.R. No. 160869, 11 May 2007, 523 SCRA 108.
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 existthe 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 foreign citizenship and the

Constitution.
Rep. Locsin underscored that the measure does not seek to address the
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 citizenshipby 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 countrys concern, when dual allegiance is involved.
447

VOL. 696, APRIL 16, 2013

447
Maquiling vs. Commission on
Elections
However, this legal presumption does not operate permanently
and is open to attack when, after renouncing the
_______________
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

11

Philippine citizenship under the conditions of this Act. He stressed that what the

of the Philippines, may such a situation disqualify the person to run for a local

bill does is recognize Philippine citizenship but says nothing about the

government position?

other citizenship.

SENATOR PIMENTEL:

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

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.

country and in that oath says that he abjures and absolutely renounces all allegiance

449

to his country of origin and swears allegiance to that

VOL. 696, APRIL 16, 2013

449
Maquiling vs. Commission on
Elections

448

448

SUPREME COURT REPORTS

ANNOTATED
Maquiling vs. Commission on
Elections

foreign citizenship, the citizen performs positive acts showing his

continued possession of a foreign citizenship.33
_______________
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

Arnado himself subjected the issue of his citizenship to attack

when, after renouncing his foreign citizenship, he continued to use his
US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to
determine is whether he was solely and exclusively a Filipino citizen
at the time he filed
_______________
SENATOR ENRILE:

and the last he utters is one of allegiance to the country. He then said

Suppose he carries only a Philippine passport but the country of origin or

that the problem of dual allegiance is no longer the problem of the

the country of the father claims that person, nevertheless, as a citizen? No one

Philippines but of the other foreign country. (Emphasis supplied)

can renounce. There are such countries in the world.

33 See Discussion of Senators Enrile and Pimentel on Sec. 40(d) of the Local
Government Code, reproduced in Cordora v. COMELEC, G.R. No. 176947, 19 February
2009, 580 SCRA 12.
By electing Philippine citizenship, such candidates at the same time

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 a Filipino citizen.
SENATOR ENRILE:

forswear allegiance to the other country of which they are also citizens and

But, precisely, Mr. President, the Constitution does not require an election.

thereby terminate their status as dual citizens. It may be that, from the point of

Under the Constitution, a person whose mother is a citizen of the Philippines is,

view of the foreign state and of its laws, such an individual has not effectively

at birth, a citizen without any overt act to claim the citizenship.

renounced his foreign citizenship. That is of no moment as the following

discussion on 40(d) between Senators Enrile and Pimentel clearly shows:

SENATOR PIMENTEL:
Yes. What we are saying, Mr. President, is: Under the Gentlemans

SENATOR ENRILE:

example, if he does not renounce his other citizenship, then he is opening

Mr. President, I would like to ask clarification of line 41, page 17: Any

himself to question. So, if he is really interested to run, the first thing he should

person with dual citizenship is disqualified to run for any elective local

do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I

position. Under the present Constitution, Mr. President, someone whose mother

have only one citizenship.

is a citizen of the Philippines but his father is a foreigner is a natural-born

SENATOR ENRILE:

citizen of the Republic. There is no requirement that such a natural-born

But we are talking from the viewpoint of Philippine law, Mr. President. He

citizen, upon reaching the age of majority, must elect or give up Philippine

will always have one citizenship, and that is the citizenship invested upon him

citizenship.

or her in the Constitution of the Republic.

On the assumption that this person would carry two passports, one

SENATOR PIMENTEL:

belonging to the country of his or her father and one belonging to the Republic

12

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.
450

450

SUPREME COURT REPORTS

ANNOTATED
Maquiling vs. Commission on
Elections

his certificate of candidacy, thereby rendering him eligible to run for

public office.
Between 03 April 2009, the date he renounced his foreign
citizenship, and 30 November 2009, the date he filed his COC, he used
his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport,
Arnado positively and voluntarily represented himself as an
American, in effect declaring before immigration authorities of both
countries that he is an American citizen, with all attendant rights and
privileges granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that
can simply be professed at any time, only to be violated the next day.
It requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the
Court declared:
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, 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 anyone who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation of his
Philippine citizenship.

While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting
_______________

451

VOL. 696, APRIL 16, 2013

451
Maquiling vs. Commission on
Elections
renunciation and loss of Philippine citizenship,35 it is nevertheless an
act which repudiates the very oath of renunciation required for a
former Filipino citizen who is also a citizen of another country to be
qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just
eleven days after he renounced his American citizenship, he recanted
his Oath of Renunciation36 that he absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF
AMERICA37 and that he divest(s) [him]self of full employment of all
civil and political rights and privileges of the United States of
America.38
We agree with the COMELEC En Bancthat such act of using a
foreign passport does not divest Arnado of his Filipino citizenship,
which he acquired by repatriation. However, by representing himself
as an American citizen, Arnado voluntarily and effectively reverted to
his earlier status as a dual
_______________
35 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)
(6)

By cancellation of the certificate of naturalization;

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.

36 See Note 7.
37 Id.
38 Id.
452

452

SUPREME COURT REPORTS

34 Supra note 28 at p. 153; pp. 649-650.

13

ANNOTATED
Maquiling vs. Commission on
Elections
citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US
passport.
This act of using a foreign passport after renouncing ones foreign
citizenship is fatal to Arnados bid for public office, as it effectively
imposed on him a disqualification to run for an elective local position.
Arnados category of dual citizenship is that by which foreign
citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of
renunciation as the mere filing of the certificate of candidacy already
carries with it an implied renunciation of foreign citizenship.39 Dual
citizens by naturalization, on the other hand, are required to take not
only the Oath of Allegiance to the Republic of the Philippines but also
to personally renounce foreign citizenship in order to qualify as a
candidate for public office.
By the time he filed his certificate of candidacy on 30 November
2009, Arnado was a dual citizen enjoying the rights and privileges of
Filipino and American citizenship. He was qualified to vote, but by
the express disqualification under Section 40(d) of the Local
Government Code,40 he was not qualified to run for a local elective
position.
In effect, Arnado was solely and exclusively a Filipino citizen only
for a period of eleven days, or from 3 April 2009 until 14 April 2009,
on which date he first used his American passport after renouncing
his American citizenship.
This Court has previously ruled that:
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 officers entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. x x x.41

The citizenship requirement for elective public office is a

continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act

which violates the oath of renunciation opens the citizenship issue to

attack.
We agree with the pronouncement of the COMELEC First Division
that Arnados act of consistently using his US passport effectively
negated his Affidavit of Renunciation.42 This does not mean, that he
failed to comply with the twin requirements under R.A. No. 9225, for
he in fact did. It was after complying with the requirements that he
performed positive acts which effectively disqualified him from
running for an elective public office pursuant to Section 40(d) of the
Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual
citizens from running for any elective public office would be thwarted
if we were to allow a person who has earlier renounced his foreign
citizenship, but who subsequently represents himself as a foreign
citizen, to hold any public office.
Arnado justifies the continued use of his US passport with the
explanation that he was not notified of the issuance of his Philippine
passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the
Portuguese national who sought naturalization as a Filipino citizen
and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not
make his use of a US passport less of an act that violated the Oath of
Renunciation he took. It was still a positive act of representation as a
US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated Yet, as
soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels
abroad.44 We cannot agree with the COMELEC. Three months from
June is September. If indeed, Arnado used his Philippine passport as
soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.
Besides, Arnados subsequent use of his Philippine passport does
not correct the fact that after he renounced his foreign citizenship and
prior to filing his certificate of candidacy, he used his US passport. In
the same way that the use of his foreign passport does not undo his
Oath of Renunciation, his subsequent use of his Philippine passport
does not undo his earlier use of his US passport.

14

Citizenship is not a matter of convenience. It is a badge of identity

that comes with attendant civil and political rights accorded by the
state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to ones flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage,
those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust.
Holding public office demands full and undivided allegiance to the
Republic and to no other.
We therefore hold that Arnado, by using his US passport after
renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May 2010
elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v.
Paredes45 which is the jurisprudential spring of the principle that a
second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once
again put to the test to address the ever-recurring issue that a secondplacer who loses to an ineligible candidate cannot be proclaimed as
the winner in the elections.
The facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of
Cavite, to fill the office of municipal president. The petitioner, Felipe Topacio,
and the respondent, Maximo Abad, were opposing candidates for that office.
Topacio received 430 votes, and Abad 281. Abad contested the election upon
the sole ground that Topacio was ineligible in that he was reelected the
second time to the office of the municipal president on June 4, 1912, without
the four years required by Act No. 2045 having intervened.46

Abad thus questioned the eligibility ofTopacio on the basis of a

statutory prohibition for seeking a second re-election absent the four
year interruption.
The often-quoted phrase in Topacio v. Paredes is that the wreath
of victory cannot be transferred from an ineligible candidate to any

other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots.47
This phrase is not even the ratio decidendi; it is a mere obiter
dictum. The Court was comparing the effect of a decision that a
candidate is not entitled to the office because of fraud or irregularities
in the elections x x x [with] that produced by declaring a person
ineligible to hold such an office.
The complete sentence where the phrase is found is part of a
comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections is quite different from that
produced by declaring a person ineligible to hold such an office. In the former
case the court, after an examination of the ballots may find that some other
person than the candidate declared to have received a plura[l]ity by the board
of canvassers actually received the greater number of votes, in which case the
court issues its mandamus to the board of canvassers to correct the returns
accordingly; or it may find that the manner of holding the election and the
returns are so tainted with fraud or illegality that it cannot be determined
who received a [plurality] of the legally cast ballots. In the latter case, no
question as to the correctness of the returns or the manner of casting and
counting the ballots is before the deciding power, and generally the only
result can be that the election fails entirely. In the former, we have a contest
in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the
board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was thereal victor, the former must retire in favor of the
latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate
to any other candidate when the sole question is the eligibility of the
one receiving a plurality of the legally cast ballots. In the one case the
question is as to who received a plurality of the legally cast ballots; in the
other, the question is confined to the personal character and circumstances of
a single individual.48 (Emphasis supplied)

Note that the sentence where the phrase is found starts with In
the other case, there is not, strictly speaking, a contest in contrast to
the earlier statement, In the former, we have a contest in the strict

15

sense of the word, because of the opposing parties are striving for
supremacy.
The Court in Topacio v. Paredes cannot be said to have held that
the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally
cast ballots.

x x x the wreath of victory cannot be transferred from an

ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of
the legally cast ballots.

A proper reading of the case reveals that the ruling therein is that
since the Court of First Instance is without jurisdiction to try a
disqualification case based on the eligibility of the person who
obtained the highest number of votes in the election, its jurisdiction
being confined to determine which of the contestants has been duly
elected the judge exceeded his jurisdiction when he declared that no
one had been legally elected president of the municipality of Imus at
the general election held in that town on 4 June 1912 where the only
question raised was whether or not Topacio was eligible to be elected
and to hold the office of municipal president.

When the issue being decided upon by the Court is the eligibility of
the one receiving a plurality of the legally cast ballots and ineligibility
is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of
votes as the winner and bestowing upon him that wreath?

The Court did not rule that Topacio was disqualified and that
Abad as the second placer cannot be proclaimed in his stead. The
Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the
respondent judge exceeded his jurisdiction in declaring in those
proceedings that no one was elect[ed] municipal president of the municipality
of Imus at the last general election; and that said order and all subsequent
proceedings based thereon are null and void and of no effect; and, although
this decision is rendered on respondents answer to the order to show cause,
unless respondents raised some new and additional issues, let judgment be
entered accordingly in 5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions

does not even have a legal basis to stand on. It was a mere
pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even
illogical.
Let us examine the statement:

What prevents the transfer of the wreath of victory from the

ineligible candidate to another candidate?

An ineligible candidate who receives the highest number of votes is

a wrongful winner. By express legal mandate, he could not even have
been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility
might not have been passed upon prior to election date. Consequently,
he may have had the opportunity to hold himself out to the electorate
as a legitimate and duly qualified candidate. However,
notwithstanding the outcome of the elections, his ineligibility as a
candidate remains unchanged. Ineligibility does not only pertain to
his qualifications as a candidate but necessarily affects his right to
hold public office. The number of ballots cast in his favor cannot cure
the defect of failure to qualify with the substantive legal requirements
of eligibility to run for public office.
The popular vote does not cure the ineligibility of a candidate.
The ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of candidates.
When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve
as elective public officials, those qualifications must be met before one
even becomes a candidate. When a person who is not qualified is voted
for and eventually garners the highest number of votes, even the will
of the electorate expressed through the ballot cannot cure the defect
in the qualifications of the candidate. To rule otherwise is to trample
upon and rent asunder the very law that sets forth the qualifications

16

and disqualifications of candidates. We might as well write off our

election laws if the voice of the electorate is the sole determinant of
who should be proclaimed worthy to occupy elective positions in our
republic.

For one, such blanket/unqualified reading may provide a way around the law
that effectively negates election requirements aimed at providing the
electorate with the basic information to make an informed choice about a
candidates eligibility and fitness for office.

This has been, in fact, already laid down by the Court in Frivaldo
v. COMELEC50when we pronounced:

The first requirement that may fall when an unqualified reading is made
is Section 39 of the LGC which specifies the basic qualifications of local
government officials. Equally susceptive of being rendered toothless is
Section 74 of the OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the resolution of the
petition to cancel or deny due course to a COC can render a Section 78
petition useless if a candidate with false COC data wins. To state the obvious,
candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election
victory then becomes a magic formula to bypass election eligibility
requirements. (Citations omitted)

x x x. 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.51 (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v.

COMELEC52 where the Court ruled that the ruling in Quizon and
Saya-ang cannot be interpreted without qualifications lest Election
victory x x x becomes a magic formula to bypass election eligibility
requirements.53
[W]e have ruled in the past that a candidates victory in the election may be
considered a sufficient basis to rule in favor of the candidate sought to be
disqualified if the main issue involves defects in the candidates certificate of
candidacy. We said that while provisions relating to certificates of candidacy
are mandatory in terms, it is an established rule of interpretation as regards
election laws, that mandatory provisions requiring certain steps before
elections will be construed as directory after the elections, to give effect to the
will of the people. We so ruled in Quizon v. COMELEC andSaya-ang v.
COMELEC:
The present case perhaps presents the proper time and opportunity to
fine-tune our above ruling. We say this with the realization that a blanket
and unqualified reading and application of this ruling can be fraught with
dangerous significance for the rule of law and the integrity of our elections.

What will stop an otherwise disqualified individual from filing a

seemingly valid COC, concealing any disqualification, and employing
every strategy to delay any disqualification case filed against him so
he can submit himself to the electorate and win, if winning the
election will guarantee a disregard of constitutional and statutory
provisions on qualifications and disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice
through the ballot by ensuring that its exercise respects the rule of
law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is
electoral anarchy. When set rules are disregarded and only the
electorates voice spoken through the ballot is made to matter in the
end, it precisely serves as an open invitation for electoral anarchy to
set in.

Maquiling is not a second-placer as he obtained the highest

number of votes from among the qualified candidates.

17

With Arnados disqualification, Maquiling then becomes the

winner in the election as he obtained the highest number of votes
from among the qualified candidates.
We
have
ruled
in
the
recent
cases
ofAratea
v.
COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot
produce any legal effect. Thus, the votes cast in favor of the ineligible
candidate are not considered at all in determining the winner of an
election.
Even when the votes for the ineligible candidate are disregarded,
the will of the electorate is still respected, and even more so. The
votes cast in favor of an ineligible candidate do not constitute the sole
and total expression of the sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part of that voice and must
also be respected.
As in any contest, elections are governed by rules that determine
the qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be
ineligible, their victory is voided and the laurel is awarded to the next
in rank who does not possess any of the disqualifications nor lacks
any of the qualifications set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v.
COMELEC56 that when the voters are well aware within the realm of
notoriety of a candidates disqualification and still cast their votes in
favor said candidate, then the eligible candidate obtaining the next
higher number of votes may be deemed elected. That rule is also a
mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorates awareness of the candidates disqualification is not
a prerequisite for the disqualification to attach to the candidate. The
very existence of a disqualifying circumstance makes the candidate
ineligible. Knowledge by the electorate of a candidates
disqualification is not necessary before a qualified candidate who
placed second to a disqualified one can be proclaimed as the winner.
The second-placer in the vote count is actually the first-placer among
the qualified candidates.
That the disqualified candidate has already been proclaimed and
has assumed office is of no moment. The subsequent disqualification

based on a substantive ground that existed prior to the filing of the

certificate of candidacy voids not only the COC but also the
proclamation.
Section 6 of R.A. No. 6646 provides:
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.

There was no chance for Arnados proclamation to be suspended

under this rule because Arnado failed to file his answer to the petition
seeking his disqualification. Arnado only filed his Answer on 15 June
2010, long after the elections and after he was already proclaimed as
the winner.
The disqualifying circumstance surrounding Arnados candidacy
involves his citizenship. It does not involve the commission of election
offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the
individual from continuing as a candidate, or if he has already been
elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship.
As earlier discussed, Arnado was both a Filipino and an American
citizen when he filed his certificate of candidacy.
He was a dual citizen disqualified to run for public office based on
Section 40(d) of the Local Government Code.
Section 40 starts with the statement The following persons are
disqualified from running for any elective local position. The
prohibition serves as a bar against the individuals who fall under any
of the enumeration from participating as candidates in the election.
With Arnado being barred from even becoming a candidate, his
certificate of candidacy is thus rendered void from the beginning. It
could not have produced any other legal effect except that Arnado
rendered it impossible to effect his disqualification prior to the

18

elections because he filed his answer to the petition when the

elections were conducted already and he was already proclaimed the
winner.
To hold that such proclamation is valid is to negate the prohibitory
character of the disqualification which Arnado possessed even prior to
the filing of the certificate of candidacy. The affirmation of Arnados
disqualification, although made long after the elections, reaches back
to the filing of the certificate of candidacy. Arnado is declared to be
not a candidate at all in the May 2010 elections.
Arnado being a non-candidate, the votes cast in his favor should
not have been counted. This leaves Maquiling as the qualified
candidate who obtained the highest number of votes. Therefore, the
rule on succession under the Local Government Code will not apply.
WHEREFORE, premises considered, the Petition is GRANTED.
The Resolution of the COMELEC En Banc dated 2 February 2011 is
hereby ANNULLED and SET ASIDE. Respondent ROMMEL
ARNADO y CAGOCO is disqualified from running for any local
elective position. CASAN MACODE MAQUILING is hereby
DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte
in the 10 May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties
and the Commission on Elections.
No pronouncement as to costs.
SO ORDERED.
Velasco, Jr., Peralta, Bersamin, Villarama, Jr., Perez,
Reyes and Perlas-Bernabe, JJ., concur.
Carpio, J., See Concurring Opinion.
Leonardo-De Castro, Del Castillo, Mendoza and Leonen, JJ., Join
the dissent of Justice Brion.
Brion, J., See: Dissent.
Abad, J., See Separate and Concurring Opinion.

19

G.R. No. 119976. September 18, 1995.

IMELDA ROMUALDEZ-MARCOS, petitioner, vs. COMMISSION ON
ELECTIONS and CIRILO ROY MONTEJO, respondents.
*

Election Law; Domicile; Residence; Words and Phrases; Residence, for

the purpose of meeting the qualification for an elective position, has a settled
meaning in our jurisdiction.A perusal of the Resolution of the COMELECS
Second Division reveals a startling confusion in the application of settled
concepts of Domicile and Residence in election law. While the COMELEC
seems to be in agreement with the general proposition that for the purposes
of election law, residence is synonymous with domicile, the Resolution reveals
a tendency to substitute or mistake the concept of domicile for actual
residence, a conception not intended for the purpose of determining a
candidates qualifications for election to the House of Representatives as
required by the 1987 Constitution. As it were, residence, for the purpose of
meeting the qualification for an elective position, has a settled meaning in
our jurisdiction.
Same; Same; Same; Same; Domicile includes the twin elements of the
fact of residing or physical presence in a fixed place and animus manendi, or
the intention of returning there permanently.Article 50 of the Civil Code
decrees that [f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual
residence. In Ong vs. Republic this court took the concept of domicile to
mean an individuals permanent home, a place to which, whenever absent
for business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent. Based on the foregoing,
domicile includes the twin elements of the fact of residing or physical
presence in a fixed place and animus manendi, or the intention of returning
there permanently.
Same; Same; Same; Same; Domicile and Residence, Distinguished.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given
area, community or country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the
purpose for which the resident has taken up his abode ends. One may seek a
place for purposes such as pleasure, business, or health. If a persons intent
be to remain, it becomes his domicile; if his intent is to leave as soon as his
purpose is established it is residence. It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person
can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice.

Same; Same; Same; Same; Same; As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.For
political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.
Same; Same; Same; Same; Same;Constitutional
Law; When
the
Constitution speaks of residence in election law, it actually means only
domicile.The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond doubt the
principle that when the Constitution speaks of residence in election law, it
actually means only domicile.
Same; Same; Same; Same; Same; Same; 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.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. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to
his or her disqualification.
Same; Same; Same; Same; Same; The honest mistake in the certificate of
candidacy regarding the period of residency does not negate the fact of
residence in a congressional district if such fact is established by means more
convincing than a mere entry on a piece of paper.Having been forced by
private respondent to register in her place of actual residence in Leyte
instead of petitioners claimed domicile, it appears that petitioner had jotted
down her period of stay in her actual residence in a space which required her
period of stay in her legal residence or domicile. The juxtaposition of entries
in Item 7 and Item 8the first requiring actual residence and the second
requiring domicilecoupled with the circumstances surrounding petitioners
registration as a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This honest mistake
should not, however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing than a mere
entry on a piece of paper.

20

Same; Same; Same; Same; Same; An individual does not lose his
domicile even if he has lived and maintained residences in different places.
We have stated, many times in the past, that an individual does not lose his
domicile even if he has lived and maintained residences in different places.
Residence, it bears repeating, implies a factual relationship to a given place
for various purposes. The absence from legal residence or domicile to pursue
a profession, to study or to do other things of a temporary or semi-permanent
nature does not constitute loss of residence. Thus, the assertion by the
COMELEC that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she
became a resident of many places flies in the face of settled jurisprudence in
which this Court carefully made distinctions between (actual) residence and
domicile for election law purposes.
Same; Same; Same; Same; Domicile of Origin; A minor follows the
domicile of his parents.A minor follows the domicile of his parents. As
domicile, once acquired is retained until a new one is gained, it follows that in
spite of the fact of petitioners being born in Manila, Tacloban, Leyte was her
domicile of origin by operation of law. This domicile was not established only
when she reached the age of eight years old, when her father brought his
family back to Leyte contrary to private respondents averments.
Same; Same; Same; Same; Same; Requisites for a change of domicile.
Domicile of origin is not easily lost. To successfully effect a change of
domicile, one must demonstrate: 1. An actual removal or an actual change of
domicile; 2. A bona fide intention of abandoning the former place of residence
and establishing a new one; and 3. Acts which correspond with the purpose.
Same; Same; Same; Same; Same; To effect an abandonment requires the
voluntary act of relinquishing former domicile with an intent to supplant the
former domicile with one of her own choosing (domicilium voluntarium).In
the absence of clear and positive proof based on these criteria, the residence
of origin should be deemed to continue. Only with evidence showing
concurrence of all three requirements can the presumption of continuity or
residence be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal residences at the
same time. In the case at bench, the evidence adduced by private respondent
plainly lacks the degree of persuasiveness required to convince this court that
an abandonment of domicile of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the voluntary act of
relinquishing petitioners former domicile with an intent to supplant the
former domicile with one of her own choosing (domicilium voluntarium).

Same; Same; Same; Same; Marriages;Husband

and
Wife; The
presumption that the wife automatically gains the husbands domicile by
operation of law upon marriage cannot be inferred from the use of the term
residence in Article 110 of the Civil Code because the Civil Code is one area
where the two concepts are well delineated.In this connection, it cannot be
correctly argued that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in
1952. For there is a clearly established distinction between the Civil Code
concepts of domicile and residence. The presumption that the wife
automatically gains the husbands domicile by operation of law upon
marriage cannot be inferred from the use of the term residence in Article
110 of the Civil Code because the Civil Code is one area where the two
concepts are well delineated.
Same; Same; Same; Same; Same; Same; A survey of jurisprudence yields
nothing which would suggest that the female spouse automatically loses her
domicile of origin in favor of the husbands choice of residence upon
marriage.A survey of jurisprudence relating to Article 110 or to the
concepts of domicile or residence as they affect the female spouse upon
marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husbands choice of
residence upon marriage.
Same; Same; Same; Same; Same; Same; It is illogical to conclude that
Art. 110 of the Civil Code refers to domicile and not to residence.The
duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the couple
has many residences (as in the case of petitioner). If the husband has to stay
in or transfer to any one of their residences, the wife should necessarily be
with him in order that they may live together. Hence, it is illogical to
conclude that Art. 110 refers to domicile and not to residence. Otherwise,
we shall be faced with a situation where the wife is left in the domicile while
the husband, for professional or other reasons, stays in one of their (various)
residences.
Same; Same; Same; Same; Same; Same;What petitioner gained upon
marriage was actual residenceshe did not lose her domicile of origin.
Parenthetically when Petitioner was married to then Congressman Marcos,
in 1954, petitioner was obligedby virtue of Article 110 of the Civil Codeto
follow her husbands actual place of residence fixed by him. The problem here
is that at that time, Mr. Marcos had several places of residence, among which
were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of
these places Mr. Marcos did fix as his familys residence. But assuming that

21

Mr. Marcos had fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did not lose her
domicile of origin.
Same; Same; Same; Same; Same; Same;Family Code; The common law
concept of matrimonial domicile appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code.On the other hand, the common law
concept of matrimonial domicile appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference between the
intentions of the Civil Code and the Family Code drafters, the term residence
has been supplanted by the term domicile in an entirely new provision (Art.
69) distinctly different in meaning and spirit from that found in Article 110.
The provision recognizes revolutionary changes in the concept of womens
rights in the intervening years by making the choice of domicile a product of
mutual agreement between the spouses.
Same; Same; Same; The term residence may mean one thing in civil law
(or under the Civil Code) and quite another thing in political law.Without
as much belaboring the point, the term residence may mean one thing in civil
law (or under the Civil Code) and quite another thing in political law. What
stands clear is that insofar as the Civil Code is concerned-affecting the rights
and obligations of husband and wife-the term residence should only be
interpreted to mean actual residence. The inescapable conclusion derived
from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her domicile of
origin and merely gained a new home, not a domicilium necessarium.
Same; Statutory Construction; Mandatory and directory provisions; It is
a settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory.It is a settled
doctrine that a statute requiring rendition of judgment within a specified
time is generally construed to be merely directory, so that non-compliance
with them does not invalidate the judgment on the theory that if the statute
had intended such result it would have clearly indicated it.
Same; Same; Same; The difference between a mandatory and a directory
provision is often made on grounds of necessity.The difference between a
mandatory and a directory provision is often made on grounds of necessity.
Adopting the same view held by several American authorities, this court
in Marcelino v. Cruz held that: The difference between a mandatory and
directory provision is often determined on grounds of expediency, the reason

being that less injury results to the general public by disregarding than
enforcing the letter of the law.
Same; Jurisdiction; Electoral Tribunals;The HRETs jurisdiction as the
sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of
the House of Representatives.As to the House of Representatives Electoral
Tribunals supposed assumption of jurisdiction over the issue of petitioners
qualifications after the May 8, 1995 elections, suffice it to say that HRETS
jurisdiction as the sole judge of all contests relating to the elections return
and qualifications of members of Congress begins only after a candidate has
become a member of the House of Representatives. Petitioner not being a
member of the House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question.

ROMERO, J., Separate Opinion :

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

PUNO, J., Concurring Opinion :

Husband and Wife; It is not the mere fact of marriage but the deliberate
choice of a different domicile by the husband that will change the domicile of a
wife from what it was prior to their marriage.It is not, therefore, the mere
fact of marriage but the deliberate choice of a different domicile by the
husband that will change the domicile of a wife from what it was prior to
their marriage. The domiciliary decision made by the husband in the exercise
of the right conferred by Article 110 of the Civil Code binds the wife. Any and
all acts of a wife during her coverture contrary to the domiciliary choice of the
husband cannot change in any way the domicile legally fixed by the husband.

22

These acts are void not only because the wife lacks the capacity to choose her
domicile but also because they are contrary to law and public policy.
Same; Family Code; In light of the Family Code which abrogated the
inequality between husband and wife as started and perpetuated by the
common law, there is no reason in espousing the anomalous rule that the wife
still retains the domicile of her dead husband.In light of the Family Code
which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the
anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support
for this stance has been repealed by Article 69 of the Family Code. By its
appeal, it becomes a dead-letter law, and we are not free to resurrect it by
giving it further effect in any way or manner such as by ruling that the
petitioner is still bound by the domiciliary determination of her dead
husband.
Same; Constitutional Law; Equal Protection Clause; It can hardly be
doubted that the common law imposition on a married woman of her dead
husbands domicile even beyond his grave is patently discriminatory to
womenit cannot survive a constitutional challenge.Aside from reckoning
with the Family Code, we have to consider our Constitution and its firm
guarantees of due process and equal protection of law. It can hardly be
doubted that the common law imposition on a married woman of her dead
husbands domicile even beyond his grave is patently discriminatory to
women. It is a gender-based discrimination and is not rationally related to
the objective of promoting family solidarity. It cannot survive a constitutional
challenge.
Same; Domicile; The better stance is to rule that petitioner reac-quired
her Tacloban domicile upon the death of her husband in 1989.Prescinding
from these premises, I respectfully submit that the better stance is to rule that
petitioner reacquired her Tacloban domicile upon the death of her husband in
1989.This is the necessary consequence of the view that petitioners Batac
dictated domicile did not continue after her husbands death; otherwise, she
would have no domicile and that will violate the universal rule that no person
can be without a domicile at any point of time. This stance also restores the
right of petitioner to choose her domicile before it was taken away by Article
110 of the Civil Code, a right now recognized by the Family Code and
protected by the Constitution.
Constitutional Law; Election Law;Statutory Construction; Political
Harassment;Equal Protection; There is but one Constitution for all Filipinos
petitioner cannot be adjudged by a different Constitution, and the worst way

to interpret the Constitution is to inject in its interpretation bile and

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

FRANCISCO, J., Concurring Opinion :

Husband and Wife; Domicile; Petitioner reverted to her original domicile
upon her husbands death without even signifying her intention to that
effect.Tacloban, Leyte, is petitioners domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her
marriage in 1954 with then Congressman Marcos. By legal fiction she
followed the domicile of her husband. In my view, the reason for the law is for
the spouses to fully and effectively perform their marital duties and
obligations to one another. The question of domicile, however, is not affected
by the fact that it was the legal or moral duty of the individual to reside in a
given place (28 C.J.S. 11). Thus, while the wife retains her marital domicile
so long as the marriage subsists, she automatically loses it upon the latters
termination, for the reason behind the law then ceases. Otherwise, petitioner,
after her marriage was ended by the death of her husband, would be placed
in a quite absurd and unfair situation of having been freed from all wifely
obligations yet made to hold on to one which no longer serves any meaningful
purpose. It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husbands death without even signifying
her intention to that effect. It is for the private respondent to prove, not for
petitioner to disprove, that petitioner has effectively abandoned Tacloban,
Leyte for Batac, Ilocos Norte or for some other place/s.

PADILLA, J., Dissenting Opinion :

Election Law; The one year residence period is crucial regardless of
whether or not the term residence is to be synonymous with domicilethe
candidates intent and actual presence in one district must in all situations
satisfy the length of time prescribed by the fundamental law.To my mind,
the one year residence period is crucial regardless of whether or not the term

23

residence is to be synonymous with domicile. In other words, the

candidates intent and actual presence in one district must in all situations
satisfy the length of time prescribed by the fundamental law. And this,
because of a definite Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent in Congress
and the one-year residence in said district would be the minimum period to
acquire such familiarity, if not versatility.
Same; Statutes; R.A. 6646; The Court should re-examine and
consequently abandon the doctrine in the Jun Labo case.It stands to reason
that Section 6 of RA 6646 does not make the second placer the winner simply
because a winning candidate is disqualified, but that the law considers him
as the candidate who had obtained the highest number of votes as a result of
the votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is
no reason why this Court should not re-examine and consequently abandon
the doctrine in the Jun Labo case. It has been stated that the qualifications
prescribed for elective office cannot be erased by the electorate alone. The will
of the people as expressed through the ballot cannot cure the vice of
ineligibility most especially when it is mandated by no less than the
Constitution.

REGALADO, J., Dissenting Opinion :

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

DAVIDE, JR., J., Dissenting Opinion :

Husband and Wife; Domicile; Evidence;Burden of Proof; Since the
widow is presumed to retain her deceased husbands domicile until she
exercises her revived power to acquire her own domicile, the burden is upon
her to prove that she has exercised her right to acquire her own domicile.The
majority opinion also disregards a basic rule in evidence that he who asserts
a fact or the affirmative of an issue has the burden of proving it (Imperial

Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp.
vs. Court of Appeals , 221 SCRA 19 [1993]). Having admitted marriage to the
then Congressman Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to that of her husband. The
majority opinion rules or at least concludes that [b]y operation of law
(domicilium necesarium ), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte. That conclusion is consistent with
Article 110 of the Civil Code. Since she is presumed to retain her deceased
husbands domicile until she exercises her revived power to acquire her own
domicile, the burden is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to discharge that burden.

VITUG, J., Separate Opinion :

Election
Law; Electoral
Tribunals;Commission
on
Elections; Jurisdiction; The COMELECs jurisdiction, in the case of
congressional elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins.The COMELECs jurisdiction, in the case of congressional
elections, ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been duly
proclaimed and has since become a member of the Senate or the House of
Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission
on Elections dictated solely on the number of votes cast in an election
exercise. I believe, it is not. A ministerial duty is an obligation the
performance of which, being adequately defined, does not allow the use of
further judgment or discretion. The COMELEC, in its particular case, is
tasked with the full responsibility of ascertaining all the facts and conditions
such as may be required by law before a proclamation is properly done.
Same; Same; Separation of Powers; The Court should refrain from any
undue encroachment on the ultimate exercise of authority by the Electoral
Tribunals on matters which, by no less than a constitutional fiat, are explicitly
within their exclusive domain.The Court, on its part, should, in my view at
least, refrain from any undue encroachment on the ultimate exercise of
authority by the Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the Courts peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with
its own judgment in a contest relating to the election, returns and
qualification of its members.

24

MENDOZA, J., Separate Opinion :

Election Law; Commission on Elections;Jurisdiction; The COMELEC
has no power to disqualify candidates on the ground that they lack eligibility
for the office to which they seek to be electedthe qualifications of candidates
may be questioned only in the event they are elected, by filing a petition for quo
warranto or an election protest, in the appropriate forum.In my view the
issue in this case is whether the Commission on Elections has the power to
disqualify candidates on the ground that they lack eligibility for the office to
which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are
elected, by filing a petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in
the House of Representatives Electoral Tribunal. That the parties in this case
took part in the proceedings in the COMELEC is of no moment. Such
proceedings were unauthorized and were not rendered valid by their
agreement to submit their dispute to that body.
Same; Same; Same; The Omnibus Election Code, by its silence about a
pre-proclamation remedy based on a candidates qualifications, underscores
the policy of not authorizing any inquiry into the qualifications of candidates
unless they have been elected.By providing in 253 for the remedy of quo
warranto for determining an elected officials qualifications after the results
of elections are proclaimed, while being conspicuously silent about a preproclamation remedy based on the same ground, the Omnibus Election Code,
or OEC, by its silence underscores the policy of not authorizing any inquiry
into the qualifications of candidates unless they have been elected.
Same; Same; Same; Administrative Law;The lack of provision for
declaring the ineligibility of candidates cannot be supplied by a mere rule
such an act is equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its rulemaking
power cannot do.Apparently realizing the lack of an authorized proceeding
for declaring the ineligibility of candidates, the COMELEC amended its rules
on February 15, 1993 so as to provide in Rule 25, 1 the following: Grounds
for disqualification.Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate. The lack of provision for
declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which
is a substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is

noteworthy that the Constitution withholds from the COMELEC even the
power to decide cases involving the right to vote, which essentially involves
an inquiry intoqualifications based on age, residence andcitizenship of voters.
(Art. IX, C, 2[3]).
Same; Same; Same; Proceedings for disqualification and for a
declaration of ineligibility, distinguished; The assimilation in Rule 25 of the
COMELEC rules of grounds for ineligibility into grounds for disqualification
is contrary to the evident intention of the law.The assimilation in Rule 25 of
the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for
disqualification different from those for a declaration of ineligibility.
Disqualification proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code and in 40 of the
Local Government Code and are for the purpose of barring an individual
frombecoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from
the start or during its progress. Ineligibility, on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Estelito P. Mendoza for petitioner.
Paquito N. Ochoa, Jr. and Gracelda N. Andres for private
respondent.
KAPUNAN, J.:
A constitutional provision should be construed as to give it effective
operation and suppress the mischief at which it is aimed. The 1987
Constitution mandates that an aspirant for election to the House of
Representatives be a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one year
immediately preceding the election. The mischief which this
provisionreproduced verbatim from the 1973 Constitutionseeks to
prevent is the possibility of a stranger or newcomer unacquainted
with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community.
25
1

Petitioner Imelda Romualdez-Marcos filed her Certificate of

Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item No. 8:
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:_ _ _ _
_ _ Years and seven Months
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a Petition for Cancellation and
Disqualification with the Commission on Elections alleging that
petitioner did not meet the constitutional requirement for residency.
In his petition, private respondent contended that Mrs. Marcos lacked
the Constitutions one year residency requirement for candidates to
the House of Representatives on the evidence of declarations made by
her in Voter Registration Record 94-No. 3349772 and in her
Certificate of Candidacy. He prayed that an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy.
On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry seven months to since
childhood in item No. 8 of the amended certificate. On the same day,
the Provincial Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned
Certificate of Candidacy on the ground that it is filed out of time,
the deadline for the filing of the same having already lapsed on
March 20, 1995. The Corrected/Amended Certificate of Candidacy
should have been filed on or before the March 20, 1995 deadline.
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELECs Head Office in Intramuros, Manila
on March 31, 1995. Her Answer to private respondents petition in
SPA No. 95-009 was likewise filed with the head office on the same
day. In said Answer, petitioner averred that the entry of the word
seven in her original Certificate of Candidacy was the result of an
honest misinterpretation which she sought to rectify by adding the
words since childhood in her Amended/Corrected Certificate of
Candidacy and that she has always maintained Tacloban City as her
domicile or residence. Impugning respondents motive in filing the
petition seeking her disqualification, she noted that:
4

10

11

When respondent (petitioner herein) announced that she was

intending to register as a voter in Tacloban City and run for
Congress in the First District of Leyte, petitioner immediately
opposed her intended registration by writing a letter stating that
she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte. After respondent had registered as a voter in Tolosa
following completion of her six month actual residence therein,
petitioner filed a petition with the COMELEC to transfer the town
of Tolosa from the First District to the Second District and pursued
such a move up to the Supreme Court, his purpose being to remove
respondent as petitioners opponent in the congressional election in
the First District. He also filed a bill, along with other Leyte
Congressmen, seeking the creation of another legislative district to
remove the town of Tolosa out of the First District, to achieve his
purpose. However, such bill did not pass the Senate. Having failed
on such moves, petitioner now filed the instant petition for the
same objective, as it is obvious that he is afraid to submit along
with respondent for the judgment and verdict of the electorate of
the First District of Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995.
On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1, came up with a Resolution
1) finding private respondents Petition for Disqualification in SPA 95009 meritorious; 2) striking off petitioners Corrected/Amended
Certificate of Candidacy of March 31, 1995; and 3) canceling her
original Certificate of Candidacy. Dealing with two primary issues,
namely, the validity of amending the original Certificate of Candidacy
after the lapse of the deadline for filing certificates of candidacy, and
petitioners compliance with the one year residency requirement, the
Second Division held:
12

13

14

Respondent raised the affirmative defense in her Answer that the

printed word Seven (months) was a result of an honest
misinterpretation or honest mistake on her part and, therefore,
an amendment should subsequently be allowed. She averred that
she thought that what was asked was her actual and physical
presence in Tolosa and not residence of origin or domicile in the
First Legislative District, to which she could have responded since
childhood. In an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First District, to
26

which she always intended to return whenever absent and which

she has never abandoned. Furthermore, in her memorandum, she
tried to discredit petitioners theory of disqualification by alleging
that she has been a resident of the First Legislative District of
Leyte since childhood, although she only became a resident of the
Municipality of Tolosa for seven months. She asserts that she has
always been a resident of Tacloban City, a component of the First
District, before coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her
registration in Tolosa, respondent announced that she would be
registering in Tacloban City so that she can be a candidate for the
District. However, this intention was rebuffed when petitioner
wrote the Election Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded to it by
registering in Tolosa.
This incident belies respondents claim of honest
misinterpretation or honest mistake. Besides, the Certificate of
Candidacy only asks for RESIDENCE. Since on the basis of her
Answer, she was quite aware of residence of origin which she
interprets to be Tacloban City, it is curious why she did not cite
Tacloban City in her Certificate of Candidacy. Her explanation
that she thought what was asked was her actual and physical
presence in Tolosa is not easy to believe because there is none in
the question that insinuates about Tolosa. In fact, item No. 8 in
the Certificate of Candidacy speaks clearly of Residency in the
CONSTITUENCY where I seek to be elected immediately
preceding the election, thus, the explanation of respondent fails to
be persuasive.
From the foregoing, respondents defense of an honest mistake
or misinterpretation, therefore, is devoid of merit.
To further buttress respondents contention that an amendment
may be made, she cited the case of Alialy v. COMELEC (2 SCRA
957). The reliance of respondent on the case of Alialy is misplaced.
The case only applies to the inconsequential deviations which
cannot affect the result of the election, or deviations from
provisions intended primarily to secure timely and orderly conduct

of elections. The Supreme Court in that case considered the

amendment only as a matter of form. But in the instant case, the
amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a
substantial matter which determines her qualification as a
candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects
the filer. To admit the amended certificate is to condone the evils
brought by the shifting minds of manipulating candidate, to the
detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month
period of her residency in order to prolong it by claiming it was
since childhood is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7 months
residency the respondent indicated in her certificate of candidacy
can be gleaned from her entry in her Voters Registration Record
accomplished on January 28, 1995 which reflects that she is a
resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the
said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro
Manila, dated August 24, 1994, requesting for the cancellation of
her registration in the Permanent List of Voters thereat so that
she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte.
The dates of these three (3) different documents show the
respondents consistent conviction that she has transferred her
residence to Olot, Tolosa, Leyte from Metro Manila only for such
limited period of time, starting in the last week of August 1994
which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the
respondents contention that it was an error.
xxx
Based on these reasons the Amended/Corrected Certificate of
Candidacy cannot be admitted by this Commission.
xxx
27

Anent the second issue, and based on the foregoing discussion,

it is clear that respondent has not complied with the one year
residency requirement of the Constitution.
In election cases, the term residence has always been
considered as synonymous with domicile which imports not only
the intention to reside in a fixed place but also personal presence
in that place, coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return.
(Perfecto
Faypon
v.
Eliseo
Quirino, 96
Phil.
294; Romualdez v. RTC-Tacloban, 226 SCRA 408). In respondents
case, when she returned to the Philippines in 1991, the residence
she chose was not Tacloban but San Juan, Metro Manila. Thus,
her animus revertendi is pointed to Metro Manila and not
Tacloban.
This Division is aware that her claim that she has been a
resident of the First District since childhood is nothing more than
to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face of
the facts admitted by the respondent in her affidavit. Except for
the time that she studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila. In
1959, after her husband was elected Senator, she lived and resided
in San Juan, Metro Manila where she was a registered voter. In
1965, she lived in San Miguel, Manila where she was again a
registered voter. In 1978, she served as member of the Batasang
Pambansa as the representative of the City of Manila and later on
served as the Governor of Metro Manila. She could not have served
these positions if she had not been a resident of the City of Manila.
Furthermore, when she filed her certificate of candidacy for the
office of the President in 1992, she claimed to be a resident of San
Juan, Metro Manila. As a matter of fact on August 24, 1994,
respondent wrote a letter with the election officer of San Juan,
Metro Manila requesting for the cancellation of her registration in
the permanent list of voters that she may be re-registered or
transferred to Barangay Olot, Tolosa, Leyte. These facts manifest
that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy
because she became a resident of many places, including Metro

Manila. This debunks her claim that prior to her residence in

Tolosa, Leyte, she was a resident of the First Legislative District of
Leyte since childhood.
In this case, respondents conduct reveals her lack of intention
to make Tacloban her domicile, she registered as a voter in
different places and on several occasions declared that she was a
resident of Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned such place when
she chose to stay and reside in other different places. In the case
of Romualdez v. RTC (226 SCRA 408) the Court explained how one
acquires a new domicile by choice. There must concur: (1)
residence or bodily presence in the new locality; (2) intention to
remain there; and (3) intention to abandon the old domicile. In
other words there must basically be animus manendi with animus
non revertendi. When respondent chose to stay in Ilocos and later
on in Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring that she is a
resident of that place, she is deemed to have abandoned Tacloban
City, where she spent her childhood and school days, as her place
of domicile.
Pure intention to reside in that place is not sufficient, there
must likewise be conduct indicative of such intention.
Respondents statements to the effect that she has always intended
to return to Tacloban, without the accompanying conduct to prove
that intention, is not conclusive of her choice of residence.
Respondent has not presented any evidence to show that her
conduct, one year prior the election, showed intention to reside in
Tacloban. Worse, what was evident was that prior to her residence
in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a
resident of the First District of Leyte since childhood.
To further support the assertion that she could have not been a
resident of the First District of Leyte for more than one year,
petitioner correctly pointed out that on January 28, 1995;
respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter Registration
Record that she resided in the municipality of Tolosa for a period
28

of six months. This may be inconsequential as argued by the

respondent since it refers only to her residence in Tolosa, Leyte.
But her failure to prove that she was a resident of the First
District of Leyte prior to her residence in Tolosa leaves nothing but
a convincing proof that she had been a resident of the district for
six months only.
In a Resolution promulgated a day before the May 8, 1995 elections,
the COMELEC en banc denied petitioners Motion for
Reconsideration of the April 24, 1995 Resolution declaring her not
qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte. The
Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the
Commission RESOLVED to DENY it, no new substantial matters
having been raised therein to warrant re-examination of the
resolution granting the petition for disqualification.

I. The Issue of Petitioners qualifications

On May 11, 1995, the COMELEC issued a Resolution allowing

petitioners proclamation should the results of the canvass show that
she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second Resolution directing
that the proclamation of petitioner be suspended in the event that she
obtains the highest number of votes.
In a Supplemental Petition dated 25 May, 1995, petitioner averred
that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from
running for the congressional seat of the First District of Leyte and
the public respondents Resolution suspending her proclamation,
petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:

Whether or not the House of Representatives Electoral Tribunal

assumed exclusive jurisdiction over the question of petitioners
qualifications after the May 8, 1995 elections.

Whether or not petitioner was a resident, for election purposes, of

the First District of Leyte for a period of one year at the time of the
May 9, 1995 elections.

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16

17

18

19

II. The Jurisdictional Issue

1. a)Prior to the elections
Whether or not the COMELEC properly exercised its
jurisdiction in disqualifying petitioner outside the period
mandated by the Omnibus Election Code for disqualification cases
under Article 78 of the said Code.
1. b)After the Elections

I. Petitioners qualification
A perusal of the Resolution of the COMELECs Second Division
reveals a startling confusion in the application of settled concepts of
Domicile and Residence in election law. While the COMELEC
seems to be in agreement with the general proposition that for the
purposes of election law, residence is synonymous with domicile, the
Resolution reveals a tendency to substitute or mistake the concept of
domicile for actual residence, a conception not intended for the
purpose of determining a candidates qualifications for election to the
House of Representatives as required by the 1987 Constitution. As it
were, residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that [f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence. In Ong vs. Republic this
court took the concept of domicile to mean an individuals permanent
home, a place to which, whenever absent for business or for
29
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pleasure, one intends to return, and depends on facts and

circumstances in the sense that they disclose intent. Based on the
foregoing, domicile includes the twin elements of the fact of residing
or physical presence in a fixed place and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a persons intent be
to remain, it becomes his domicile; if his intent is to leave as soon as
his purpose is established it is residence. It is thus, quite perfectly
normal for an individual to have different residences in various
places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of
another domicile of choice. In Uytengsu vs. Republic, we laid this
distinction quite clearly:
There is a difference between domicile and residence. Residence
is used to indicate a place of abode, whether permanent or
temporary; domicile denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man
may have a residence in one place and a domicile in another.
Residence is not domicile, but domicile is residence coupled with
the intention to remain for an unlimited time. A man can have but
one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so
since no length of residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.

conduct indicative of such intention. Larena vs. Teves reiterated the

same doctrine in a case involving the qualifications of the respondent
therein to the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino, held that the absence from residence to
pursue studies or practice a profession or registration as a voter other
than in the place where one is elected does not constitute loss of
residence. So settled is the concept (of domicile) in our election law
that in these and other election law cases, this Court has stated that
the mere absence of an individual from his permanent residence
without the intention to abandon it does not result in a loss or change
of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond doubt
the principle that when the Constitution speaks of residence in
election law, it actually means only domicile to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately
preceding the day of the elections. So my question is: What is the
Committees concept of residence of a candidate for the legislature?
Is it actual residence or is it the concept of domicile or constructive
residence?
Mr. Davide: Madame President, insofar as the regular members of the
National Assembly are concerned, the proposed section merely
provides, among others, and a resident thereof, that is, in the
district for a period of not less than one year preceding the day of
the election. This was in effect lifted from the 1973 Constitution,
the interpretation given to it was domicile.
xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that resident
has been interpreted at times as a matter of intention rather than
actual residence.
Mr. De los Reyes: Domicile
Ms. Rosario Braid: Yes, So, would the gentleman consider at the
proper time to go back to actual residence rather than mere
intention to reside?

In Nuval vs. Guray, the Court held that the term residence . . . is
synonymous with domicile which imports not only intention to reside
in a fixed place, but also personal presence in that place, coupled with

Mr.
De
los
Reyes: But
we
might
encounter
some
difficulty especially considering that a provision in the Constitution

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25

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in the Article on Suffrage says that Filipinos living abroad may vote
as enacted by law. So, we have to stick to the original concept that it
should be by domicile and not physical residence.
In Co vs. Electoral Tribunal of the House of Representatives, this
Court concluded that the framers of the 1987 Constitution obviously
adhered to the definition given to the term residence in election law,
regarding it as having the same meaning as domicile.
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated by
Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the
questioned entry in petitioners Certificate of Candidacy stating her
residence in the First Legislative District of Leyte as seven (7)
months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or not
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. It would be
plainly ridiculous for a candidate to deliberately and knowingly make
a statement in a certificate of candidacy which would lead to his or
her disqualification.
It stands to reason therefore, that petitioner merely committed an
honest mistake in jotting down the word seven in the space provided
for the residency qualification requirement. The circumstances
leading to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First District, which was since childhood in the
space provided. These circumstances and events are amply detailed in
the COMELECs Second Divisions questioned resolution, albeit with
a different interpretation. For instance, when herein petitioner
announced that she would be registering in Tacloban City to make her
eligible to run in the First District, private respondent Montejo
opposed the same, claiming that petitioner was a resident of Tolosa,
not Tacloban City. Petitioner then registered in her place of actual
residence in the First District, which was Tolosa, Leyte, a fact which
she subsequently noted down in her Certificate of Candidacy. A close
look at said certificate would reveal the possible source of the
confusion: the entry for residence (Item No. 7) is followed immediately

by the entry for residence in the constituency where a candidate seeks

election thus:

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1. 7.RESIDENCE (complete Address):Brgy. Olot, Tolosa,

Leyte POST
OFFICE
ADDRESS
FOR
ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
2. 8.RESIDENCE IN THE CONSTITUENCY WHERE I SEEK
TO BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_ _ _ _ _ _ _ Years and Seven Months.
Having been forced by private respondent to register in her place of
actual residence in Leyte instead of petitioners claimed domicile, it
appears that petitioner had jotted down her period of stay in her
actual residence in a space which required her period of stay in her
legal residence or domicile. The juxtaposition of entries in Item 7 and
Item 8the first requiring actual residence and the second requiring
domicilecoupled with the circumstances surrounding petitioners
registration as a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This honest
mistake should not, however, be allowed to negate the fact of
residence in the First District if such fact were established by means
more convincing than a mere entry on a piece of paper.
We now proceed to the matter of petitioners domicile.
In support of its asseveration that petitioners domicile could not
possibly be in the First District of Leyte, the Second Division of the
COMELEC, in its assailed Resolution of April 24, 1995 maintains that
except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in
Manila. The Resolution additionally cites certain facts as indicative
of the fact that petitioners domicile ought to be any place where she
lived in the last few decades except Tacloban, Leyte. First, according
to the Resolution, petitioner, in 1959, resided in San Juan, Metro
Manila where she was also registered voter. Then, in 1965, following
the election of her husband to the Philippine presidency, she lived in
San Miguel, Manila where she registered as a voter in 1978 and
thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. She could not, have served these positions
if she had not been a resident of Metro Manila, the COMELEC
stressed. Here is where the confusion lies.

31

We have stated, many times in the past, that an individual does

not lose his domicile even if he has lived and maintained residences in
different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from
legal residence or domicile to pursue a profession, to study or to do
other things of a temporary or semipermanent nature does not
constitute loss of residence. Thus, the assertion by the COMELEC
that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because
she became a resident of many places flies in the face of settled
jurisprudence in which this Court carefully made distinctions between
(actual) residence and domicile for election law purposes. InLarena vs.
Teves, supra, we stressed:
[T]his court is of the opinion and so holds that a person who has
his own house wherein he lives with his family in a municipality
without having ever had the intention of abandoning it, and
without having lived either alone or with his family in another
municipality, has his residence in the former municipality,
notwithstanding his having registered as an elector in the other
municipality in question and having been a candidate for various
insular and provincial positions, stating every time that he is a
resident of the latter municipality.
More significantly, in Faypon vs. Quirino, we explained that:
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34

A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot, and that, of
course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to
his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from
his professional or business activities; so there he registers himself
as voter as he has the qualifications to be one and is not willing to
give up or lose the opportunity to choose the officials who are to
run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other than
his residence of origin has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds justification in the

natural desire and longing of every person to return to his place of

birth. This strong feeling of attachment to the place of ones birth
must be overcome by positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible to
run for the position of Representative of the First District of Leyte,
the COMELEC was obviously referring to petitioners various places
of (actual) residence, not her domicile. In doing so, it not only ignored
settled jurisprudence on residence in election law and the
deliberations of the constitutional commission but also the provisions
of the Omnibus Election Code (B.P. 881).
What is undeniable, however, are the following set of facts which
establish the fact of petitioners domicile, which we lift verbatim from
the COMELECs Second Divisions assailed Resolution:
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1949
when she graduated from high school. She pursued her college
studies in St. Pauls College, now Divine Word University in
Tacloban, where she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese School, still in Tacloban City. In
1952 she went to Manila to work with her cousin, the late speaker
Daniel Z. Romualdez in his office in the House of Representatives.
In 1954, she married ex-President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte and registered there as a
voter. When her husband was elected Senator of the Republic in
1959, she and her husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she lived with him in
Malacaang Palace and registered as a voter in San Miguel,
Manila.
[I]n February 1986 (she claimed that) she and her family were
abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and registered voter of
San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC,
what is inescapable is that petitioner held various residences for
different purposes during the past four decades. None of these
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36

purposes unequivocally point to an intention to abandon her domicile

of origin in Tacloban, Leyte. Moreover, while petitioner was born in
Manila, as a minor she naturally followed the domicile of her parents.
She grew up in Tacloban, reached her adulthood there and eventually
established residence in different parts of the country for various
reasons. Even during her husbands presidency, at the height of the
Marcos Regimes powers, petitioner kept her close ties to her domicile
of origin by establishing residences in Tacloban, celebrating her
birthdays and other important personal milestones in her home
province, instituting well-publicized projects for the benefit of her
province and hometown, and establishing a political power base
where her siblings and close relatives held positions of power either
through the ballot or by appointment, always with either her
influence or consent. These well-publicized ties to her domicile of
origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the
COMELECs Resolutions, or the majority of the COMELEC did not
know what the rest of the country always knew: the fact of petitioners
domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was
not petitioners domicile of origin because she did not live there until
she was eight years old. He avers that after leaving the place in 1952,
she abandoned her residency (sic) therein for many years and . . .
(could not) re-establish her domicile in said place by merely
expressing her intention to live there again. We do not agree.
First, a minor follows the domicile of his parents. As domicile, once
acquired is retained until a new one is gained, it follows that in spite
of the fact of petitioners being born in Manila, Tacloban, Leyte was
her domicile of origin by operation of law. This domicile was not
established only when she reached the age of eight years old, when
her father brought his family back to Leyte contrary to private
respondents averments.
Second, domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate:
37

1. 1.An actual removal or an actual change of domicile;

2. 2.A bona fide intention of abandoning the former place of
residence and establishing a new one; and
3. 3.Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires
an actual and deliberate abandonment, and one cannot have two legal
residences at the same time. In the case at bench, the evidence
adduced by private respondent plainly lacks the degree of
persuasiveness required to convince this court that an abandonment
of domicile of origin in favor of a domicile of choice indeed occurred. To
effect an abandonment requires the voluntary act of relinquishing
petitioners former domicile with an intent to supplant the former
domicile with one of her own choosing (domicilium voluntarium ).
In this connection, it cannot be correctly argued that petitioner lost
her domicile of origin by operation of law as a result of her marriage
to the late President Ferdinand E. Marcos in 1952. For there is a
clearly established distinction between the Civil Code concepts of
domicile and residence. The presumption that the wife
automatically gains the husbands domicile by operation of law upon
marriage cannot be inferred from the use of the term residence in
Article 110 of the Civil Code because the Civil Code is one area where
the two concepts are well delineated. Dr. Arturo Tolentino, writing on
this specific area explains:
In the Civil Code, there is an obvious difference between domicile
and residence. Both terms imply relations between a person and a
place; but in residence, the relation is one of fact while in domicile
it is legal or juridical, independent of the necessity of physical
presence.
Article 110 of the Civil Code provides:
Article 110.The husband shall fix the residence of the family.
But the court may exempt the wife from living with the husband if
he should live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of
domicile or residence as they affect the female spouse upon marriage
yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husbands
choice of residence upon marriage.
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39

40

Article 110 is a virtual restatement of Article 58 of the Spanish Civil

Code of 1889 which states:

33

La mujer esta obligada a seguir a su marido donde quiera que fije

su residencia. Los Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o a pais extranjero.
Note the use of the phrase donde quiera su fije de residencia in the
aforequoted article, which means wherever (the husband) wishes to
establish residence . This part of the article clearly contemplates only
actual residence because it refers to a positive act of fixing a family
home or residence. Moreover, this interpretation is further
strengthened by the phrase cuando el marido translade su
residencia in the same provision which means, when the
husband shall transferhis residence, referring to another positive act
of relocating the family to another home or place of actual residence.
The article obviously cannot be understood to refer to domicile which
is a fixed, fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another not only once, but
as often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony
with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for the
sake of family unity, be reconciled only by allowing the husband to fix
a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under
Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:
Article 109. The husband and wife are obligated to live together,
observe mutual respect and fidelity and render mutual help and
support.
The duty to live together can only be fulfilled if the husband and wife
are physically together. This takes into account the situations where
the couple has many residences (as in the case of petitioner). If the
husband has to stay in or transfer to any one of their residences, the
wife should necessarily be with him in order that they may live
together. Hence, it is illogical to conclude that Art. 110 refers to
domicile and not to residence. Otherwise, we shall be faced with a
situation where the wife is left in the domicile while the husband, for

professional or other reasons, stays in one of their (various)

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

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

In fact, even the matter of a common residence between the

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

45

34

Upon examination of the authorities, we are convinced that it is

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

other; and that was in a case where a wife was ordered to follow
and live with her husband, who had changed his domicile to the
City of New Orleans. The decision referred to (Bahn vs. Darby, 36
La. Ann., 70) was based on a provision of the Civil Code of
Louisiana similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the
American Union the idea of enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain
appears to have affirmed an order of the Audiencia Territorial de
Valladolid requiring a wife to return to the marital domicile, and
in the alternative, upon her failure to do so, to make a particular
disposition of certain money and effects then in her possession and
to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her
from the property which she had brought to the marriage. (113
Jur. Civ., pp. 1, 11). But it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any
other penalty than the consequences that would be visited upon
her in respect to the use and control of her property; and it does
not appear that her disobedience to that order would necessarily
have been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obligedby virtue of Article 110 of
the Civil Codeto follow her husbands actual place of residence fixed
by him. The problem here is that at that time, Mr. Marcos had several
places of residence, among which were San Juan, Rizal and Batac,
Ilocos Norte. There is no showing which of these places Mr. Marcos
did fix, as his familys residence. But assuming that Mr. Marcos had
fixed any of these places as the conjugal residence, what petitioner
gained upon marriage was actual residence. She did not lose her
domicile of origin.
On the other hand, the common law concept of matrimonial
domicile appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code

35

drafters, the term residence has been supplanted by the term domicile
in an entirely new provision (Art. 69) distinctly different in meaning
and spirit from that found in Article 110. The provision recognizes
revolutionary changes in the concept of womens rights in the
intervening years by making the choice of domicile a product of
mutual agreement between the spouses.
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as the
Civil Code is concernedaffecting the rights and obligations of
husband and wifethe term residence should only be interpreted to
mean actual residence. The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner
married the former President in 1954, she kept her domicile of origin
and merely gained a new home, not a domicilium necessarium .
Even assuming for the sake of argument that petitioner gained a
new domicile after her marriage and only acquired a right to choose
a new one after her husband died, petitioners acts following her
return to the country clearly indicate that she not only impliedly but
expressly chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This choice was unequivocally
expressed in her letters to the Chairman of the PCGG when petitioner
sought the PCGGs permission to rehabilitate (our) ancestral house
in Tacloban and Farm in Olot, Leyte . . . to make them livable for the
Marcos family to have a home in our homeland. Furthermore,
petitioner obtained her residence certificate in 1992 in Tacloban,
Leyte, while living in her brothers house, an act which supports the
domiciliary intention clearly manifested in her letters to the PCGG
Chairman. She could not have gone straight to her home in San Juan,
as it was in a state of disrepair, having been previously looted by
vandals. Her homes and residences following her arrival in various
parts of Metro Manila merely qualified as temporary or actual
residences, not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse
either reverts to her domicile of origin or chooses a new one during the
subsistence of the marriage, it would be highly illogical for us to
assume that she cannot regain her original domicile upon the death of
her husband absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage itself where
the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile

enunciated by this court up to this point, we are persuaded that the
facts established by the parties weigh heavily in favor of a conclusion
supporting petitioners claim of legal residence or domicile in the First
District of Leyte.

46

47

II. The jurisdictional issue

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

It is a settled doctrine that a statute requiring rendition of

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

50

51

The difference between a mandatory and directory provision is

often determined on grounds of expediency, the reason being that
less injury results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation of thirty (30)
days within which a decree may be entered without the consent of
counsel, it was held that the statutory provisions which may be
thus departed from with impunity, without affecting the validity of
statutory proceedings, are usually those which relate to the mode
or time of doing that which is essential to effect the aim and
purpose of the Legislature or some incident of the essential act.
36

Thus, in said case, the statute under examination was construed

merely to be directory.
The mischief in petitioners contending that the COMELEC should
have abstained from rendering a decision after the period stated in
the Omnibus Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies would then refuse
to render judgments merely on the ground of having failed to reach a
decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646
in relation to Section 78 of B.P. 881, it is evident that the respondent
Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the
elections.
52

As to the House of Representatives Electoral Tribunals supposed

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

1995 are hereby SET ASIDE. Respondent COMELEC is hereby

directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of
Leyte.
SO ORDERED.
Narvasa (C.J.), I join Justice Mendoza in his separate opinion
and, for the reasons therein stated, vote to grant the petition.
Feliciano, J., On official leave.
Padilla, J., See dissenting opinion.
Regalado, J., See dissenting opinion.
Davide, Jr., J., I respectfully dissent. Please see dissenting
opinion.
Romero, J., Please see separate opinion.
Bellosillo, J., I join Justice Puno in his concurring opinion.
Melo, J., I join Justice Puno in his separate concurring
opinion.
Puno, J., Please see Concurring Opinion.
Vitug, J., Please see separate opinion.
Mendoza, J., See separate opinion.
Francisco, J., See concurring opinion.
Hermosisima, Jr., J., I join Justice Padillas dissent.

It would be an abdication of many of the ideals enshrined in the

1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a petitioner
in a case. Obviously a distinction was made on such a ground here.
Surely, many established principles of law, even of election laws were
flouted for the sake of perpetuating power during the pre-EDSA
regime. We renege on these sacred ideals, including the meaning and
spirit of EDSA by ourselves bending established principles of law to
deny an individual what he or she justly deserves in law. Moreover, in
doing so, we condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELECs
questioned Resolutions dated April 24, May 7, May 11, and May 25,

37

G.R. No. 135083. May 26, 1999.

ERNESTO S. MERCADO, petitioner, vs.EDUARDO BARRIOS
MANZANO and theCOMMISSION ON ELECTIONS, respondents.
*

Remedial Law; Election Law; Parties;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, reiterated in several
cases, 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.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 vice-mayoralty 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,reiterated in several cases,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.
Same; Same; Same; That petitioner had a right to intervene at that stage
of the proceedings for the disqualification against private respondent is clear
from 6 of Republic Act No. 6646, otherwise known as the Electoral Reforms
Law of 1987.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 Lawof 1987.
Same; Same; Same; Intervention may be allowed in proceedings for
disqualification even after election if there has yet been no final judgment
rendered.Intervention may be allowed in proceedings for disqualification
even after election if there has yet been no final judgment rendered.
Same; Same; Same; 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.The failure of
the COMELEC enbanc 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 enbanc 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.
Constitutional Law; Citizenship; Dual citizenship is different from dual
allegiance.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.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 factoand without any voluntary act on his part, is concurrently
considered a citizen of both states.
Same; Same; Instances where it is possible for certain classes of citizens
of the Philippines to possess dual citizenship.Considering the
citizenshipclause (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. 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

38

citizenship is involuntary, dual allegiance is the result of an individuals

volition.
Same; Same; The phrase dual citizenship in Republic Act No. 7160,
40(d) and in Republic Act No. 7854, 20 must be understood as referring to
dual allegiance.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 person with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different
states.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Balane, Tamase, Alampay Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.
Raul A. Daza collaborating counsel for private respondent.
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

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, the Second Division of the
COMELEC granted the petition of Mamaril and ordered the
2

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, 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. 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. Petitioners motion was opposed by private
respondent.
3

39

The motion was not resolved. Instead, on August 31, 1998, the
COMELEC enbancrendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC enbanc 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. The pertinent portions of the resolution of the
COMELEC enbanc read:
5

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 jussoli.
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 enbanchereby 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 vicemayor of Makati City.

Pursuant to the resolution of the COMELEC enbanc, 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 enbanc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City. Petitioner
contends that
[T]he COMELEC enbanc ERRED in holding that:
1. A.Under Philippine law, Manzano was no longer a U.S. citizen when
he:
1. 1.He renounced his U.S. citizenship when he attained the age of
majority when he was already 37 years old; and,
2. 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.
1. B.Manzano is qualified to run for and or hold the elective office of
Vice-Mayor of the City of Makati;
2. 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 Manzanowhether 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. PETITIONERS 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:

40

SECTION 1. Whenproper 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 vice-mayoralty 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, reiterated in several cases, 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,
6

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 Lawof 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 enbanc 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
COMELECen 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
DISQUALIFICATION

AS

GROUND

FOR

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

41

position: . . . (d) Those with dual citizenship. This provision is

incorporated in the Charter of the City of Makati.
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. 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 citizenshipclause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the
Philippines to possess dual citizenship:
8

1. (1)Those born of Filipino fathers and/or mothers in foreign

countries which follow the principle of jus soli;
2. (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. (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 allegianceand I reiterate a dual allegianceis
larger and more threatening than that of mere double citizenship which is
seldom intentional and, perhaps, never insidious. That is often a function of
the accident of mixed marriages or of birth on foreign soil. And so, I do not
question double citizenship at all.
What we would like the Committee to consider is to take constitutional
cognizance of the problem of dual allegiance. For example, we all know what
happens in the triennial elections of the Federation of Filipino-Chinese
Chambers of Commerce which consists of about 600 chapters all over the
country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact that the Filipino-Chinese community is represented in the
Legislative Yuan of the Republic of China in Taiwan. And until recently, the
sponsor might recall, in Mainland China in the Peoples Republic of China,
they have the Associated Legislative Council for overseas Chinese wherein all
of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but who,
by their acts, may be said to be bound by a second allegiance, either to Peking
or Taiwan. I also took close note of the concern expressed by some
Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and
especially Commissioner Concepcion who has always been worried about
minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of the
great commercial places in downtown Taipei are Filipino-owned, owned by
Filipino-Chineseit 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.

42

And so, this is exactly what we askthat 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.
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:
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.
12

13

43

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 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, it
was held:
14

15

[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.
PETITIONERS
CITIZENSHIP

ELECTION

OF

PHILIPPINE

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 enbanc 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 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:
16

44

1. 6.I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR

NATURALIZED)
NATURAL-BORN
....
2. 10.I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,
BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR.
3. 11.I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT
TO, A FOREIGN COUNTRY.
4. 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
citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the
interimwhen he abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December 19,
1995:

Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath
of allegiance to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the Commission are conclusive
upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.

There is, therefore, no merit in petitioners contention that the

oath of allegiance contained in private respondents certificate of
candidacy is insufficient to constitute renunciation of his American
citizenship. Equally without merit is petitioners contention that, to be
effective, such renunciation should have been made upon private
respondent reaching the age of majority since no law requires the
election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted
that he is registered as an American citizen in the Bureau of
Immigration and Deportation and that he holds an American passport
which he used in his last travel to the United States on April 22,
1997. There is no merit in this. Until the filing of his certificate of
candidacy on March 21, 1998, he had dual citizenship. The acts
attributed to him can be considered simply as the assertion of his
American nationality before the termination of his American
citizenship.
What
this
Court
said
in Aznar
v.
COMELEC applies mutatis mutandis to private respondent in the
case at bar:
18

. . . 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 notstill 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.

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

45

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.

Note.Ineligibility refers to the lack of the qualifications

prescribed in the Constitution on the statutes for holding public office.
(Garvida vs. Sales, Jr., 271 SCRA 767 [1997])
o0o

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. DefensorSantiago, 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 anyone
who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation
of his Philippine citizenship.
19

WHEREFORE, the petition for certiorari is DISMISSED for lack

of merit.
SO ORDERED.
Davide,
Jr. (C.J.), Romero,Bellosillo, Melo, Puno, Vitug, Kapunan,Quisumbing
, Buena, Gonzaga-Reyes andYnares-Santiago, JJ., concur.
Panganiban and Purisima, JJ., On leave.
Pardo, J., No part.
Petition dismissed.

46

G.R. No. 136351. July 28, 1999.

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the
COMMISSION ON ELECTIONS, respondents.
*

Election Law; Election Code; While Section 78 of the Code 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.Petitioner
capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe
Miranda in the May 5, 1998 resolution and he heavily relies upon the abovequoted provision allowing substitution of a candidate who has been
disqualified for any cause. 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.
Same; Same; Only an official candidate of a registered or accredited
political party may be substituted; A cancelled certificate does not give rise to
a valid candidacy.More importantly, under the express provisions of
Section 77 of the Code, not just any person, but only an official candidate of
a registered or accredited political party may be substituted. In Bautista vs.
Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled
that a cancelled certificate does not give rise to a valid candidacy (p. 13). 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.
Same; Same; A person who filed no certificate of candidacy at all and a
person who filed it out of time, a person whose certificate of candidacy is
cancelled or denied due course is no candidate at all.By its express
language, the foregoing provision of law is absolutely mandatory. It is but

logical to say that any person who attempts to run for an elective office but
does not file a certificate of candidacy, is not a candidate at all. No amount of
votes would catapult him into office. In Gador vs. Comelec(95 SCRA 431
[1980]), the Court held that a certificate of candidacy filed beyond the period
fixed by law is void, and the person who filed it is not, in law, a candidate.
Much in the same manner as a person who filed no certificate of candidacy at
all and a person who filed it out of time, a person whose certificate of
candidacy is cancelled or denied due course is no candidate at all. No amount
of votes should entitle him to the elective office aspired for.
Same; Same; A valid certificate of candidacy is likewise an
indispensable requisite in the case of a substitution of a disqualified candidate
under the provisions of Section 77 of the Code.A deceased candidate is
required to have duly filed a valid certificate of candidacy, otherwise his
political party would not be allowed to field a substitute candidate in his
stead under Section 77 of the Code. In the case of withdrawal of candidacy,
the withdrawing candidate is required to have duly filed a valid certificate of
candidacy in order to allow his political party to field a substitute candidate
in his stead. Most reasonable it is then, under the foregoing rule, to hold that
a valid certificate of candidacy is likewise an indispensable requisite in the
case of a substitution of a disqualified candidate under the provisions of
Section 77 of the Code, just as it is in the two previous instances.
Remedial Law; Certiorari; Certiorari lies where a court has acted
without or in excess of jurisdiction or with grave abuse of discretion.
Generally, certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion. Without jurisdiction refers to
an absolute want of jurisdiction; excess of jurisdiction refers to the case
where the court has jurisdiction, but it transcended the same or acted
without any statutory authority; grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction.
Same; Same; An act of a court or tribunal may only be considered to
have been done in grave abuse of discretion when the same was performed in a
capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction.It is well-settled that an act of a court or tribunal may only be
considered to have been done in grave abuse of discretion when the same was
performed in a capricious or whimsical exercise of judgment which is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform a duty enjoined or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion

47

or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate

Appellate Court, 170 SCRA 246 [1989]; Litton Mills, Inc. vs. Galleon Trader
Inc., 163 SCRA 489 [1988]; Butuan Bay Wood Export Corp. vs. Court of
Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the
exercise of its legitimate jurisdiction is not the same as grave abuse of
discretion. An abuse of discretion is not sufficient by itself to justify the
issuance of a writ of certiorari. The abuse must be grave and patent, and it
must be shown that the discretion was exercised arbitrarily and despotically.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Pete Quirino Quadra for petitioner.
Ruben E. Agpalo and Jovelyn G. Grepo-de Luna for respondent
Antonio M. Abaya.
MELO, J.:
Before us is a petition for certiorari with prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction
questioning the resolution of the Comelec En Banc dated December 8, 1998 in
SPA Case No. 98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:
1. 1.AMEND and RECTIFY the dispositive portion of the Resolution of the
Commission (First Division) in SPA No. 98-019 promulgated on May 5,
1998, to read as follows:
WHEREFORE, in view of the foregoing, the Commission (First Division)
GRANTS the Petition. Respondent JOSE PEMPE MIRANDAs certificate of
candidacy for the position of mayor of Santiago City in the May 11, 1998 national
and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.
SO ORDERED.
2. 2.ANNUL the election and proclamation of respondent JOEL G. MIRANDA

winning candidate among those voted upon as the duly elected mayor of
Santiago City in the May 11, 1998 election; and
4. 4.DIRECT the Clerk of Court of the Commission to furnish copies of this
Decision to the Office of the President of the Philippines; the Department of
Interior and Local Government; the Department of Finance, and the
Secretary of the Sangguniang Panglunsod of Santiago City.
SO ORDERED.
(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set

aside the earlier resolution of the First Division of the Comelec dated May 16,
1998, dismissing private respondents petition to declare the substitution of
Jose Pempe Miranda by petitioner as candidate for the City of Santiagos
mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of
Santiago City, Isabela, filed his certificate of candidacy for the same
mayoralty post for the synchronized May 11, 1998 elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a
Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp.
26-33, Rollo), which was docketed as SPA No. 98-019. The petition was
GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43,
Rollo). The Comelec further ruled to DISQUALIFY Jose Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of
candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the
mayoralty post, supposedly as a substitute for his father, Jose Pempe
Miranda.
During the May 11, 1998 elections, petitioner and private respondent
vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666
more votes than private respondent who got only 20,336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null
and Void Substitution with Prayer for Issuance of Writ of Preliminary
Injunction and/or Temporary Restraining Order, which was docketed as SPA
No. 98-288. He prayed for the nullification of petitioners certificate of
candidacy for being void ab initiobecause the certificate of candidacy of

as mayor of Santiago City in the May 11, 1998 election and CANCEL the

622

Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;

3. 3.DIRECT THE City board of Canvassers of Santiago City to RECONVENE,

PREPARE a new certificate of canvass & proclamation and PROCLAIM the

22

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya
48

Jose Pempe Miranda, whom petitioner was supposed to substitute,

had already been cancelled and denied due course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98288 motu proprio (pp. 57-61, Rollo). Private respondent moved for
reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En
Banc rendered the assailed decision aforequoted, resolving to GRANT the
motion for reconsideration, thus nullifying the substitution by petitioner Joel
G. Miranda of his father as candidate for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a
petition forcertiorari, with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction. On December 11, 1998, the Court
resolved to issue a temporary restraining order and to require respondents to
comment on the petition. On December 14, 1998, private respondent filed his
Comment (pp. 140-187 and 188234, Rollo) and on February 16, 1999, the
Comelec, through its counsel, the Solicitor General, filed its Comment (pp.
254265, Rollo). The Court required petitioner to file a consolidated reply
within 10 days from notice, but petitioner twice asked for an extension of the
period. Without granting the motions for extension of time to file consolidated
reply, the Court decided to resolve the controversy in favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:

regularity of the exercise of that power or upon the rightfulness of the decision made.
Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The
authority to decide a cause at all, and not the decision rendered therein, is what makes
up jurisdiction. Where there is jurisdiction over the subject matter, as we have said
before, the decision of all other questions arising in the case is but an exercise of that
jurisdiction.
(p. 251)

On the issue of soundness of the disposition in SPA No. 98288, the

Court finds that the Comelecs action nullifying the substitution by and
proclamation of petitioner for the mayoralty post of Santiago City, Isabela is
proper and legally sound. Petitioner insists that the substitution at bar is
allowed under Section 77 of the Omnibus Election Code which provides:
SEC. 77. Candidates in case of death, disqualification or withdrawal.If after
the last day for the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by, the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew or was
disqualified. The substitute candidate nominated by the political party concerned may
file his certificate of candidacy for the office affected in accordance with the preceding
sections not later than mid-day of the day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of

1. 1.Whether the annulment of petitioners substitution and

proclamation was issued without jurisdiction and/or with grave
abuse of discretion amounting to lack of jurisdiction; and
2. 2.Whether the order of the Comelec directing the proclamation of the
private respondent was issued with grave abuse of discretion
amounting to lack of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion
attended the annulment of the substitution and proclamation of petitioner.
623

VOL. 311, JULY 28, 1999

6
23

Miranda vs. Abaya

On the matter of jurisdiction, there is no question that the case at hand
is within the exclusive original jurisdiction of the Comelec. As early as
in Herrera vs. Barretto (25 Phil. 245 [1913]), this Court had occasion to apply
the following principles:
Jurisdiction is the authority to hear and determine a causethe right to act in a
case. Since it is the power to hear and determine, it does not depend either upon the

election day, said certificate may be filed with any board of election inspectors in the
political subdivision where he is a can624

6
24

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

didate, or, in the case of candidates to be voted for by the entire electorate of the
country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify

Jose Pempe Miranda in the May 5, 1998 resolution and he heavily relies
upon the above-quoted provision allowing substitution of a candidate who has
been disqualified for any cause.
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

49

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.
More importantly, under the express provisions of Section 77 of the
Code, not just any person, but only an official candidate of a registered or
accredited political party may be substituted. In Bautista vs. Comelec (G.R.
No. 133840, November 13, 1998) this Court explicitly ruled that a cancelled
certificate does not give rise to a valid candidacy (p. 13).
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.
The law clearly provides:
625

VOL. 311, JULY 28, 1999

6
25

Miranda vs. Abaya

SEC. 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.

By its express language, the foregoing provision of law is absolutely

mandatory. It is but logical to say that any person who attempts to run for an
elective office but does not file a certificate of candidacy, is not a candidate at
all. No amount of votes would catapult him into office. In Gador vs.
Comelec (95 SCRA 431[1980]), the Court held that a certificate of candidacy
filed beyond the period fixed by law is void, and the person who filed it is not,
in law, a candidate. Much in the same manner as a person who filed no
certificate of candidacy at all and a person who filed it out of time, a person
whose certificate of candidacy is cancelled or denied due course is no
candidate at all. No amount of votes should entitle him to the elective office
aspired for.
The evident purposes of the law in requiring the filing of certificates of
candidacy and in fixing the time limit therefor are: (a) to enable the voters to
know, at least sixty days before the regular election, the candidates among
whom they are to make the choice, and (b) to avoid confusion and

inconvenience in the tabulation of the votes cast. For if the law did not
confine the choice or election by the voters to the duly registered candidates,
there might be as many persons voted for as there are voters, and votes
might be cast even for unknown or fictitious persons as a mark to identify the
votes in favor of a candidate for another office in the same election. (Monsale
vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of
candidacy rests at the very core of the electoral process. It cannot be taken
lightly, lest there be anarchy and chaos. Verily, this explains why the law
provides for grounds for the cancellation and denial of due course to
certificates of candidacy.
After having considered the importance of a certificate of candidacy, it
can be readily understood why in Bautista we ruled that a person with a
cancelled certificate is no candidate
626

6
26

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

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.
Also, under ejusdem generis rule, where a general word or phrase (such
as disqualification for any cause in this case) follows an enumeration of
particular and specific words of the same class (such as the words dies and
withdraws in the instant case) or where the latter follow the former, the
general word or phrase is to be construed to include, or to be restricted to
persons, things or cases akin to, resembling, or of the same kind or class as
those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A
deceased candidate is required to have duly filed a valid certificate of
candidacy, otherwise his political party would not be allowed to field a
substitute candidate in his stead under Section 77 of the Code. In the case of
withdrawal of candidacy, the withdrawing candidate is required to have duly
filed a valid certificate of candidacy in order to allow his political party to
field a substitute candidate in his stead. Most reasonable it is then, under the
foregoing rule, to hold that a valid certificate of candidacy is likewise an
indispensable requisite in the case of a substitution of a disqualified
candidate under the provisions of Section 77 of the Code, just as it is in the
two previous instances.

50

Furthermore, interpretatio talis in ambiguis semper freinda est, ut

eviatur inconveniens et absurdum, meaning, where there is ambiguity, such
interpretation as will avoid inconvenience and absurdity shall in all cases be
adopted. To include those disqualified candidates whose certificate of
candidacy had likewise been denied due course and/or cancelled among those
who may be substituted under Section 77 of the Omnibus Election Code,
leads to the absurdity where a substitute is allowed to take the place of
somebody who had not been a candidate in the first placea person who did
not have a valid certificate of candidacy prior to substitution. Nemo dat
627

VOL. 311, JULY 28, 1999

6
27

Miranda vs. Abaya

quod non habet. What right can a non-candidate pass on to his
substitute? Clearly, there is none because no one can give what he does not
have.
Even on the most basic and fundamental principles, it is readily
understood that the concept of a substitute presupposes the existence of the
person to be substituted, for how can a person take the place of somebody
who does not exist or who never was. The Court has no other choice but to
rule that in all the instances enumerated in Section 77 of the Omnibus
Election Code, the existence of a validcertificate of candidacy seasonably filed
is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had
a valid certificate of candidacy in the first place because, if the disqualified
candidate did not have a valid and seasonably filed certificate of candidacy,
he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. Besides, if we were to
allow the so-called substitute to file a new and original certificate of
candidacy beyond the period for the filing thereof, it would be a crystalline
case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand
is not a simple case of hair-splitting. A candidate may not be qualified to run
for election but may have filed a valid certificate of candidacy. Another
candidate may likewise be not qualified and at the same time not have a
valid certificate of candidacy, for which reason, said certificate of candidacy is
also cancelled and/or denied due course. Or, a third candidate may be
qualified but, his certificate of candidacy may be denied due course and/or
cancelled. This is possible because the grounds for disqualification (see:
Omnibus Election Code, Section 68Disqualifications) are totally separate

and distinct from the grounds for cancellation and/or denying due course to a
certificate of candidacy (Ibid., Section 69nuisance candidates; and Section
78material misrepresentation). Only the candidate who had a valid
certificate of candidacy may be substituted.
628

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

28

The question to settle next is whether or not aside from Joel Pempe
Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his
certificate of candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for
the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed
by respondent for the position of Mayor for the City of Santiago be not given due course
and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed
for.
(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very

particular relief, the Comelec ruled favorably in the following manner:
WHEREFORE,

in

view

of

the

foregoing,

the

Commission

(FIRST

DIVISION) GRANTS the Petition. Respondent JOSE Pempe MIRANDA is hereaby

DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in
the May 11, 1998 national and local elections.
SO ORDERED.
(p. 43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec

resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the
prayer specifically and particularly sought in the petition was GRANTED,
there being no qualification on the matter whatsoever. The disqualification
was simply ruled over and above the granting of the specific prayer for denial
of due course and cancellation of the certificate of candidacy. It may be
stressed at this instance that the legal consequences of this May 5, 1998
resolution are independent of the issue of whether or not the Comelec was
cor629

VOL. 311, JULY 28, 1999

6
29
51

Miranda vs. Abaya

rect in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288
in its December 8, 1998 resolution.
As regards the procedural matter in the present petition
for certiorari, the following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme
Court over decisions of the Constitutional Commissions, in general, and the
Commission on Elections, in particular, were rather particularly defined and
limited by the 1987 Constitution, as they were also circumscribed in the
1973 Constitution, to a petition for review on certiorari under Rule 65.
In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:
. . . We affirm the teaching of Aratuc vs. Commission on Elections, 88 SCRA 251
[1979])as regards recourse to this Court with respect to rulings of the Civil Service
Commissionwhich is that judgments of the Commission may be brought to the
Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc, we declared:
It is at once evident from these constitutional and statutory modifications that there is a
definite tendency to enhance and invigorate the role of the Commission on Elections as the
independent constitutional body charged with the safeguarding of free, peaceful and honest
elections. The framers of the new Constitution must be presumed to have definite knowledge of
what it means to make the decisions, orders and rulings of the Commission subject to review by
the Supreme Court. And since instead of maintaining that provision intact, it ordained that the
Commissions actuations be instead brought to the Supreme Court on certiorari, We cannot
insist that there was no intent to change the nature of the remedy, considering that the limited
scope of certiorari, compared to a review, is well known in remedial law.

To emphasize this procedural point, then Commissioner, later to become

a distinguished Member of this Court, Mr. Justice Florenz Regalado
responded to Commissioner Bernas query during the deliberations of the
1987 Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the
Committee? What are the grounds for certiorari?
MR. REGALADO. The Committee refers specifically to a technical term of
review by certiorariwould be relying on the provision of Rule XLV [Should be LXV] of
the Rules of Court that laid down the three grounds.
(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in
Bernas,

S.J, The

1987

Constitution

Republic

of

the

Philippines:

Thus, we have to be guided by jurisprudence relating to review

by certiorariunder Rule 65. Generally, certiorari lies where a court has acted
without or in excess of jurisdiction or with grave abuse of discretion. Without
jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction
refers to the case where the court has jurisdiction, but it transcended the
same or acted without any statutory authority; grave abuse of discretion
implies such capricious and whimsical exercise of judgment as is equivalent
to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed
an error in the exercise of its jurisdiction in the present case, such is not
within the province of certiorari, as a remedial measure, to correct. The only
issue that may be taken cognizance of in the present case is whether or not
the

It should also be noted that under the new Constitution, as under the 1973

VOL. 311, JULY 28, 1999

Charter, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari, which, as Aratuc tells us, technically connotes
something less than saying that the same shall be subject to review by the Supreme
630

30

the

631

xxx

of

Commentary, 1996 Edition, p. 903.)

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

Court, which in turn suggests an appeal by review by petition for review under
Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service
Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of
discretion tantamount to lack or excess of jurisdiction, complaints that justify
certiorari under Rule 65.
(pp. 111-112)

6
31

Miranda vs. Abaya

Comelec committed grave abuse of discretion in rendering the assailed
decision.
It is well-settled that an act of a court or tribunal may only be
considered to have been done in grave abuse of discretion when the same was
performed in a capricious or whimsical exercise of judgment which is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform a duty enjoined or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion
or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate
Appellate Court, 170 SCRA 246[1989]; Litton Mills, Inc. vs. Galleon Trader

52

Inc., 163 SCRA 489 [1988]; Butuan Bay Wood Export Corp. vs. Court of
Appeals, 97 SCRA 297[1980]). An error of judgment committed in the exercise
of its legitimate jurisdiction is not the same as grave abuse of discretion. An
abuse of discretion is not sufficient by itself to justify the issuance of a writ of
certiorari. The abuse must be grave and patent, and it must be shown that
the discretion was exercised arbitrarily and despotically (Soriano vs.
Atienza, 171 SCRA 284[1989]).
Petitioner posits that the Comelec committed grave abuse of discretion
when it annulled the substitution by and proclamation of petitioner, who
under Section 77 of the Omnibus Election Code, was allowed to substitute for
disqualified the candidate Jose Pempe Miranda. Petitioner also contends
that it was an act of grave abuse of discretion for the Comelec to direct the
proclamation of private respondent as the winning candidate in the May 11,
1998 election.
Petitioner further faults the Comelec for amending the dispositive
portion of its resolution in SPA No. 98-019, which was not elevated to it on
review, the same having already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted
in excess of its jurisdiction when it motu proprio took cognizance of SPA No.
98-019, the decision in which was by then already final, it does not
necessarily follow that the Comelec also committed grave abuse of discretion
in
632

6
32

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

resolving to grant private respondents motion for reconsideration by

nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is
under review before us in this certiorari proceedings is SPA No. 98-288, and
not SPA No. 98019.
The question to answer is: will the Comelecs act which may constitute
an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave
abuse of discretion in its judgment in the separate and distinct case of SPA
No. 98-288 as well? Clearly, non sequitur.SPA No. 98-288 should be judged on
its own accord, and not under the shadow of SPA No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No.
98-288 in favor of private respondent. As earlier pointed out, the result in the
dispositive portion of the December 8, 1998 resolution pertaining to the
issues involved in SPA No. 98-288 is correct insofar as it annulled the
election and proclamation of Joel G. Miranda. But even assuming for the sake

of argument that it is not, still, this supposed error does not constitute grave
abuse of discretion which may be annulled and reversed in the present
petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA
No. 98-288 is the fact that former candidate Jose Pempe Mirandas
certificate of candidacy was denied due course and cancelled. There is no
dispute that the complaint or petition filed by private respondent in SPA No.
98-019 is one to deny due course and to cancel the certificate of candidacy of
Jose Pempe Miranda (Rollo, pp. 26-31). There is likewise no question that
the said petition was GRANTED without any qualification whatsoever. It is
rather clear, therefore, that whether or not the Comelec granted any further
relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that
the said petition was granted and that the certificate of candidacy of Jose
Pempe Miranda was denied due course and cancelled.In fact, it was not
even necessary for the Comelec to reiterate this in its December 8, 1998
resolution. At best, the Comelecs motu proprio act of resurrecting SPA No.
98-019 should be treated as a mere surplus633

VOL. 311, JULY 28, 1999

6
33

Miranda vs. Abaya

age. The fact that the certificate of candidacy of Joel Pempe Miranda
was denied due course and cancelled did not depend on the en bancresolution
dated December 8, 1998 of the Comelec. It stems from the fact that the May
5, 1998 resolution GRANTED private respondents Petition to Deny Due
Course to and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant
misrepresentation in the instant case and that it was a valid ground for the
granting of the petition in SPA No. 98019. Also, there appears to be sound
basis to rule that a certificate of candidacy which has been denied due course
on account of misrepresentation is, in every legal contemplation, no
certificate at all. Ergo, there is nothing to substitute. If this judgment,
rendered in the Comelecs rightful exercise of its jurisdiction in SPA No. 98288 may, at all, be considered flawed, this blemish would only constitute an
error of judgment and definitely not grave abuse of discretion. And, of course,
errors of judgment may not be corrected bycertiorari.
It may be noted that Commissioner Flores raised this supposed error in
her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to
convince the majority of the collegiate body and was not adopted by the
Commission en banc. This Court in the presentcertiorari proceedings cannot

53

substitute its judgment for that of the Comelec without violating the
Constitution and the Rules of Court on the matter. The Comelecs decision is
not subject to appeal to this Court. We may only strike out a Comelec
decision if it was rendered without jurisdiction, in excess thereof, or with
grave abuse of discretion amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now
acquiesce and submit to the sovereign will of the electorate, as expressed by
their votes. We should always be reminded that ours is a government of laws
not of men. If this Court should fold its arms and refuse to apply the law at
every clamor of the majority of the supposed constituency, where shall order
and justice lie? Without the least intention to degrade, where shall people
power end, and where shall law and justice begin? Would the apparent
results of the
634

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

34

canvassing of votes justify this Court in refusing to apply the law

instead? The answers to the foregoing are obvious. The Court cannot choose
otherwise but to exercise its sacred duty to uphold the Constitution and the
laws of the Republic for and under which it exists. Besides, only history will
discern whether Jose Pempe Mirandas filing of a certificate of candidacy for
a 4th term and the intended substitution by his son was a ploy to perpetrate
the Mirandas in power by way of a political dynasty disdained and abhorred
by our Constitution which declared:
SEC. 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.
(Article II, 1987 Constitution)

The invalidation of petitioners supposed substitution of Jose Pempe

Miranda brings about the disqualification of petitioner in the mayoralty race.
In this regard, what was said inNolasco vs. Commission on Elections (275
SCRA 763 [1997]) may be recalled:
Our case law is now settled that in a mayoralty election, the candidate
who obtained the second highest number of votes, in this case Alarilla, cannot
be proclaimed winner in case the winning candidate is disqualified. Thus, we
reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA
514 [1996]), viz.:
x x x

xxx

xxx

disqualification of Renato U. Reyes. That the candidate who obtains the second highest
number of votes may not be proclaimed winner in case the winning candidate is
disqualified is now settled. The doctrinal instability caused by seesawing rulings has
since been removed. In the latest ruling on the question, this Court said:
To simplistically assume that the second placer would have received the other
votes would be to substitute our judgment for the mind of the voter. The second placer
is just that, a second placer. He
635

VOL. 311, JULY 28, 1999

6
35

Miranda vs. Abaya

lost the elections. He was repudiated by either a majority or plurality of voters.
He could not be considered the first among qualified candidates because in a field
which excludes the disqualified candidate, the conditions would have substantially
changed. We are not prepared to extrapolate the results under the circumstances.
Garcias plea that the votes case for Reyes be invalidated is without merit. The
votes cast for Reyes are presumed to have been cast in the belief that Reyes was
qualified and for that reason can be treated as stray, void and meaningless. The
subsequent finding that he is disqualified cannot retroact to the date of the elections
as to invalidate the votes cast for him.
Consequently, respondent Comelec committed grave abuse of discretion insofar
as it failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec
(176 SCRA 1 [1989]). (pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it

failed to follow the above-cited settled ruling consistently applied by this
Court since the case of Labo, Jr. vs. Comelec (176 SCRA 1 [1989]); Aquino vs.
Comelec, 248 SCRA 400 [1995]; Reyes vs. Comelec (254 SCRA 514 [1996]);
and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the
election results pointing to petitioner as the electors choice for the mayoralty
post, we should now close our eyes to the pertinent provisions of the Omnibus
Election Code on the matter, nevertheless, the Court duly notes that the said
election results point to the fact that private respondent was not then the
choice of the people of Santiago City, Isabela. This Court has no authority
under any law to impose upon and compel the people of Santiago City to
accept private respondent as their mayor. The law on succession under
Section 44 of Republic Act 7160, otherwise known as the Local Government
Code, would then apply. Said provision relevantly states:

We likewise find no grave abuse of discretion on the part of the Comelec in

denying petitioner Julius O. Garcias petition to be proclaimed mayor in view of the

54

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

37

Mayor, and Vice Mayor.(a) If a permanent vacancy occurs in the office of the

Miranda vs. Abaya

governor or mayor, the vice-governor or

Vitug, J., I join the dissenting view of Justice Romero.

Kapunan, J., No part in view of my relationship to one of the parties.
Panganiban, J., Please see dissenting opinion.
Pardo, J., No part. Was Comelec chairman at the time.

636

6
36

SUPREME COURT
REPORTS ANNOTATED
Miranda vs. Abaya

DISSENTING OPINION

vice-mayor concerned shall become the governor or mayor. If a permanent

vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the
highest ranking sanggunian member, or, in case of his permanent disability, the
second highest ranking sanggunian member, shall become governor, vice governor,
mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall
be filled automatically by the other sanggunian members according to their ranking as
defined herein.
x x x.
For purposes of this Chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the
sanggunian shall be determined on the basis of the proportion of votes obtained by
each winning candidate to the total number of registered voters in each district in the
immediately preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the

Comelec ruling to ANNUL the election and proclamation of petitioner is
being AFFIRMED. The petition is, however, hereby GRANTED so as to
MODIFY the resolution of the Comelec in SPA No. 98-288 by DELETING the
portion directing the city board of canvassers to reconvene and proclaim the
winning candidate from among those voted upon during the May 11, 1998
elections. The law on succession should be enforced. Accordingly, the
restraining order issued in this case is forthwith LIFTED.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing,Purisima, Buena, GonzagaReyes and Ynares-Santiago, JJ., concur.
Davide, Jr. (C.J.), On leave.
Romero, J., Please see my dissenting opinion.
Puno, J., I join the dissent of J. Romero.
637

VOL. 311, JULY 28, 1999

ROMERO, J.:
As we turn a new leaf in our countrys history, we should brace
ourselves to meet the challenges that continue to threaten our
sovereignty and our enjoyment of the blessings of democracy. It is in
this light that the free and unfettered exercise of the right of suffrage,
which is the instrument through which the people express their
sovereign will, should be defended at all costs. So too, should we strive
to give full effect to the true will of the sovereign people as expressed
in their ballots.
In view of the above reasons, I beg to differ from the majority
position.
For a better understanding of the points I wish to raise in this
opinion, a review of the factual milieu is in order:
On March 24, 1998, Jose Pempe C. Miranda, then incumbent city
mayor of Santiago, Isabela, filed his certificate of candidacy for the
same mayoralty post in view of the synchronized elections of May 11,
1998. Among others, Jose Pempe C. Miranda declared the following
in his certificate of candidacy, viz.:
1

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
___________________
1

Rollo, p. 34.

638

638

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya
55

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.

On March 29, 1998, Antonio M. Abaya, private respondent herein,

filed a Petition to Deny Due Course to and/or Cancel Certificate of
Candidacy docketed as SPA No. 98-019, against Jose Pempe C.
Miranda, who was then the official candidate of the Laban ng
Makabayang Masang Pilipino (LAMMP). Private respondent alleged
that Jose Pempe C. Miranda made a false material
representation in his certificate of candidacy, pointing out that Jose
Pempe C. Miranda is ineligible for re-election as city mayor of
Santiago, Isabela, by virtue of the limitation stated in Section 8,
Article X of the 1987 Constitution and in Section 43(b) of Republic Act
No. 7160, otherwise known as the Local Government Code of
2

____________________

In a resolution dated May 5, 1998, the Commission on Elections

(COMELEC) First Division resolved to disqualify Jose Pempe C.
Miranda on the ground that he has already served the maximum
three (3) consecutive terms for the same position, hence rendering
him ineligible to run for the same position in the May 11, 1998
elections. The dispositive portion of the May 5, 1998 resolution reads:
6

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION)

GRANTS the Petition. Respondent JOSE Pempe MIRANDA is hereby
DISQUALIFIED from running for the position of mayor of Santiago City,
Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
9

Since neither Jose Pempe C. Miranda nor private respondent

Antonio M. Abaya moved for the reconsideration of the COMELEC
Resolution dated May 5, 1998, said resolution became final and
executory.
On May 6, 1998, Joel G. Miranda, petitioner herein, filed his
certificate of candidacy for the mayoralty post, as a sub10

11

Entitled Antonio M. Abaya v. Jose Pempe Miranda, Rollo, pp. 26-33.

Sec. 78, Omnibus Election Code of the Philippines, provides:

____________________

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

Petition, Annex B, Rollo, pp. 36-43.

seeking to deny due course or to cancel a certificate of candidacy may be filed by any person

Composed of Hon. Manolo B. Gorospe, presiding commissioner; Hon. Teresita Dy-

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 (25)
days from the time of filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis ours)
4

Sec. 8. The term of office of elective local officials which shall be determined by

Liacco Flores and Hon. Evalyn I. Fetalino, commissioners.

8

His first term was by virtue of his election on January 18, 1988; his second, by his

re-election on May 11, 1992; and his third, also by re-election on May 8, 1995.
9
10

Supra, note 6, p. 43.

Section 13 (c), Rule 18 of the COMELEC Rules of Procedure provides:

law, shall be three years and no such official shall serve for more than three consecutive

(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division

terms. x x x (Emphasis supplied)

shall become final and executory after the lapse of five (5) days in Special actions and Special

xxx

Sec. 43. Term of Office.

xxx

cases and after fifteen (15) days in all other actions or proceedings, following its promulgation.

xxx

11

Petition, Annex C, Rollo, p. 44.

640
1. b)No local elective official shall serve for more than three (3) consecutive terms in the
same position. x x x. (Emphasis supplied)

639

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

639

1991, which prohibits elective local officials from seeking a fourth

consecutive term for the same elective post.

640

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

stitute candidate for his father, Jose Pempe C. Miranda, who was
earlier declared disqualified by the COMELEC. Petitioners certificate
of candidacy was accompanied by a certificate of nomination from the
same political party, the LAMMP. The substitution is in accordance
with Section 77 of the Omnibus Election Code which provides that a
12

13

56

candidate disqualified for any cause may be substituted by the same

political party to which the disqualified candidate is affiliated. The
substitution of Joel G. Miranda was sanctioned by the COMELECEn
Banc, as it in fact included petitioners name in the certified list of
candidates for the position of mayor of Santiago City, Isabela.
Meanwhile, on May 11, 1998, elections were held. In Santiago
City, Isabela, where only two (2) candidates vied for the mayoralty
seat, petitioner garnered 22,002 votes as against private respondent,
who obtained 20,336 votes. Thus, petitioner won with a margin of
1,666 votes.
On May 13, 1998, private respondent filed a Petition to Declare
Null and Void Substitution with Prayer for Issuance of a Writ of
Preliminary Injunction and/or Temporary Restraining Order. Said
petition, docketed as SPA No. 98-288, prays for the nullification of
petitioners certificate of candidacy as substitute candidate for being
void ab initio on the ground that since the certificate of candidacy of
Jose Pempe C. Miranda has been cancelled and/or denied due
course, there was no certificate of candidacy to be substituted or
replaced by the certificate of candidacy of petitioner. Private
respondent ar-

candidacy is not one of the grounds for substitution under Section 77

of the Omnibus Election Code.
In an Amended Petition to Declare Null and Void Substitution
with Prayer for Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order filed on May 14, 1998, private
respondent further argues that the substitution of petitioner was not
valid considering that the latters certificate of candidacy was hastily
and prematurely filed. Private respondent asserts that a substitution,
when allowed, should take place only after the lapse of the five-day
period within which to file a motion for reconsideration. In this case,
since the resolution declaring Jose Pempe C. Miranda disqualified
was promulgated on May 5, 1998, then the substitute candidate can
file his certificate of candidacy only on May 11, 1998. Private
respondent further contends that, even assuming that substitution is
allowed, the certificate of nomination, which should accompany
petitioners certificate of candidacy, was not attested under oath by
the party president, chairman, secretary-general, or any other party
officer duly authorized in writing to do so, in contravention of the
requirements of Section 5 of COMELEC Resolution No. 2977, dated
January 15, 1998.

___________________

_________________

14

15

16

17

18

19

20

12

Petition, Annex C-1, Rollo, p. 45.

16

Supra, note 14, p. 47.

13

Sec. 77. Candidates in case of death, DISQUALIFICATION or withdrawal of

17

Petition, Annex D-1, Rollo, pp. 51-56.

another.If after the last day for filing of certificate of candidacy, an official candidate

18

Ibid., p. 53.

of a registered or accredited political party dies, withdraws or is DISQUALIFIED for

19

Id.

any cause, only a person belonging to, and certified by, the same political party may

20

Sec. 5. Certificate of nomination of official candidates by political party, and

file a certificate of candidacy to replace the candidate who died, withdrew or was

nomination of party list representatives.The certificates of nomination by registered

disqualified. x x x. (Italics supplied)

political parties, organizations or coalitions of their official candidates shall be filed

14

Petition, Annex D, Rollo, pp. 46-50.

with the certificates of candidacy not later than the last day for filing of certificates of

15

Entitled Antonio M. Abaya v. Joel G. Miranda.

candidacy as specified in Section 4 hereof, duly signed

641

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

642

641

gues that the substitution of candidacy presupposes the existence, at

the time of substitution, of a certificate of candidacy to be replaced or
substituted by the substitute certificate of candidacy. Private
respondent further avers that the substitution should be nullified
since the cancellation of and/or denial of due course to a certificate of

642

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

In both the original and amended petitions, private respondent

prayed that the proclamation of the petitioner as duly elected mayor
of Santiago City, Isabela, be enjoined. However, no temporary
restraining order or writ of preliminary injunction was issued by the

57

COMELEC and consequently, the petitioner was proclaimed duly

elected city mayor.
On May 16, 1998, the COMELEC First Division dismissed motu
proprio the Amended Petition to Declare Null and Void Substitution
with Prayer for Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order. In its resolution dated May 16,
1998, the COMELEC First Division ruled in this wise:
21

22

I. There was valid substitution.

The petition in SPA No. 98-019 was anchored essentially on the
ineligibility of the respondent to run for the fourth (4th) time for the
mayorship of Santiago City. In substance, it was a petition to disqualify. Even
the Resolution of the Commission (First Division) promulgated on May 5,
1998 and a copy of which was attached to the petition herein is clear that
respondent therein was disqualified by this Commission. Said ruling on the
DISQUALIFICATION of Jose Pempe Miranda was accepted by herein
petitioner, a fact that is conclusive on him, by reason of his failure to appeal
said Resolution.Jose Pempe Miranda, being a disqualified candidate may,
therefore, be substituted.
II. No premature substitution.
While it may be true that a period of five (5) days to appeal is allowed
under the Comelec Rules of Procedure, the option to consider the Resolution
final and executory without waiting for the expiration of the period to appeal
belongs to the aggrieved party. Thereupon, the winning party has no cause for
complaint. An express waiver of the
____________________
and attested under oath by the party president, chairman, secretarygeneral or any other party

Chairman. The party nomination as well as the Certificate of candidacy of

the substituted candidate, both dated May 6, 1998, cannot be made infirm by
Jose Mirandas decision to accept the ruling as final within the appeal period.
III. A party nomination signed by the District Chairman of the party
concerned is valid.
Petitioner contends that the party nomination issued to herein
respondent by the LAMMP Chairman for the Fourth District of Isabela, to
which Santiago City belongs, is flawed for two reasons:
1. a.The authority in writing for the LAMMP Chairman to nominate is
not attached to the nomination;
2. b.The Certificate of Nomination is not under oath.
Section 5 of Comelec Resolution No. 2977 relied on by the petitioner does
not require that the written authority to nominate granted by the LAMMP to
its District Chairman must be attached to the nomination. Hence, the
nomination issued by the District Chairman in this case cannot be challenged
on that ground. (Italics supplied.)
23

On May 21, 1998, private respondent filed a Motion for

Reconsideration of the COMELEC resolution dated May 16, 1998,
raising the following errors for consideration, to wit:
24

25

I. The action or remedy instituted by petitioner in SPA No. 98-019 captioned

Antonio M. Abaya vs. Jose Pempe Miranda was purely a petition to deny
due course to and/or cancel the certificate of candidacy of respondent therein
pursuant to Section 78 of the Omnibus Election Code and not a petition for
disqualification.
____________________

officer duly authorized in writing to do so. x x x (Italics ours)

21

Rollo, p. 11.

23

Ibid., p. 59.

22

Petition, Annex E, Rollo, pp. 57-61.

24

Petition, Annex F, Rollo, pp. 62-72. Petitioner Miranda was not furnished a copy

643

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

of the Motion for Reconsideration.

643

right to appeal by the losing party is not necessary to the validity of his
subsequent acts.
It must also be remembered that the respondent Jose Miranda in SPA 98019 was wearing two hats: one, in his capacity as respondent in said case and
two, as District Chairman in the 4th District of Isabela for LAMMP. Personal
acts or omissions of respondent cannot vitiate his official acts as District

25

Ibid., pp. 2 and 7.

644

644

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

II. The certificate of candidacy filed by herein respondent in substitution for

the certificate of candidacy filed by his father and which was denied due

58

course and/or canceled in SPA No. 98-019, is fatally defective and void ab
initio. (All caps in the original)

On December 8, 1998, the COMELEC En Banc, public respondent

herein, issued a resolution resolving jointly the petitions docketed as
SPA No. 98-288 and SPA No. 98-019. The Commission En
Bancresolved to grant the Motion for Reconsideration in SPA No. 98288 thereby nullifying the substitution of petitioner as mayoralty
candidate. Curiously, the COMELEC En Banc resolution altered and
amended the dispositive portion of the resolution dated May 5, 1998
in SPA No. 98-019, which has already become final and executory. It
deleted the phrase Jose Pe[m]pe Miranda is hereby DISQUALIFIED
from running for the position of mayor of Santiago City, Isabela, in
the May 11, 1998 national and local elections, and in lieu thereof,
amended and rectified the dispositive portion thereof to read as:
26

27

WHEREFORE, in view of the foregoing, the Commission (First Division)

GRANTS the Petition. Respondent JOSE PEMPE MIRANDAs certificate of
candidacy for the position of mayor of Santiago City in the May 11, 1998
national and local elections is hereby DENIED DUE COURSE AND/OR
CANCELLED.
SO ORDERED.
28

The COMELEC En Banc resolution likewise annulled the election

and proclamation of the petitioner as mayor of Santiago City, Isabela
and cancelled his certificate of canvass and proclamation; and,
ordered the proclamation of the private respondent as duly elected
mayor of Santiago City, Isabela. The CommissionEn Banc disposed
thus:
2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA
as mayor of Santiago City in the May 11, 1998
_________________

3. DIRECT the City of board of Canvassers of Santiago City to

RECONVENE, PREPARE a new certificate of canvass & proclamation and
PROCLAIM the winning candidate those voted upon as the duly elected
mayor of Santiago City in the May 11, 1998 election.
29

The COMELEC En Banc ruled that the resolution dated May 5, 1998
in SPA No. 98-019 did not disqualify petitioners father, Jose Pempe
C. Miranda, but that his certificate of candidacy was denied due
course and cancelled. Hence, Jose Pempe C. Miranda, ceased to be a
candidate and thus, cannot be substituted by anybody, petitioner
included. The Commission En Basic distinguished between Section
78 of the Onmibus Election Code in relation to Section 74, whereon
SPA No. 98-019 is based, and Section 68 of the same Code. The
substitution of petitioner being null and void ab initio, he did not
become a candidate in the May 11, 1998 elections and therefore, the
votes petitioner garnered should be considered stray or invalid and
his election and consequent proclamation non-existent. It follows that
private respondent was the sole candidate for the office of mayor of
Santiago City, and in the absence of any candidate who may have
obtained the greater number of votes, the right to be proclaimed is
legally vested upon private respondent.
Hence, this special civil action for certiorari under Rules 64 and
65 of the 1997 Rules of Civil Procedure of the COMELEC En
Banc resolution promulgated on December 8, 1998, in SPA No. 98288, which reversed and set aside the earlier resolution dated May 16,
1998 of the COMELEC First Divi30

31

32

33

34

_____________________
29

Id., p. 91.

30

Petition to deny due course to or cancel a certificate of candidacy.

31

Contents of certificate of candidacy.

26

Petition, Annex H, Rollo, pp. 85-92.

32

Disqualifications.

27

Ibid., p. 85.

33

Supra, note 26, pp. 89-90.

28

Id., p. 90.

34

Rollo, pp. 3-25.

645

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

646

645

election and CANCEL the Certificate of Canvass and Proclamation (C.E.

form 25) issued therefor;

646

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

59

sion in SPA No. 98-019, dismissing the petition to declare void the
substitution of petitioner as candidate for city mayor of Santiago City,
Isabela.
In view of petitioners assertion that the people of Santiago City,
Isabela would suffer great and irreparable injury unless a temporary
restraining order is issued, the Court had caused the issuance of a
temporary restraining order on December 11, 1998, to take effect
immediately and to continue until further orders, upon the filing of
the required bond.
From the foregoing factual and procedural antecedents which gave
rise to and form part of the circumstances attendant to this petition,
the following issues have been aptly formulated by the majority:
35

1. 1.Whether the annulment of the substitution and

proclamation of the petitioner was issued without jurisdiction
and/or with grave abuse of discretion amounting to lack of
jurisdiction; and
2. 2.Whether the order of the COMELEC directing the
proclamation of the private respondent was issued with grave
abuse of discretion amounting to lack of jurisdiction.
36

The prevailing principle in this jurisdiction on petitions for certiorari

is, only where there is a clear showing of grave abuse of discretion
would this Court be warranted in reversing the resolution or decision
of the respondent tribunal.
After a thorough and judicious review of the circumstances
obtaining in the instant case, it is my considered view that the
resolution dated December 8, 1998, of the COMELEC En Banc was
issued capriciously, whimsically and in grave abuse of discretion. I,
therefore, find for the petitioner.
At the outset, I note the patent and palpable error committed by
the
public
respondent
COMELEC En
Banc when
itmotu
proprio joined the cases in SPA No. 98-019 and SPA No. 98-288, on
the tenuous basis of identity of parties and issues involved. The
resolution now assailed as having been rendered with grave abuse of
discretion, was supposed to address
___________________
35

Rollo, pp. 105-106.

36

Rollo, pp. 15 and 18.

647

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

647

only the issues as they were presented in the motion for

reconsideration filed by private respondent. The public respondent,
instead of confining itself only with the instant case, erroneously
included the issues posed in SPA No. 98-019, which issues had long
been resolved and had become final and executory.
I am perplexed by the sudden resurrection of the issues in SPA No.
98-019, which have long been laid to rest in the resolution dated May
5, 1998, of the COMELEC First Division. Since no motion for
reconsideration was filed by the parties, the resolution became final
and executory. It is a rule of longstanding that a judgment which has
become final and executory, can no longer be reviewed, amended or
corrected by the Court, except for clerical errors or mistakes. This
being the case, the public respondent did not acquire jurisdiction over
SPA No. 98-019, and accordingly, should not have consolidated or
jointly resolved the two cases. What is even more disturbing is the
fact that public respondent has caused the amendment of the
dispositive portion of the resolution dated May 5, 1998, in the
resolution dated December 8, 1998, of the Commission En Banc. This
is a blatant and unprecedented deviation from the principle that once
a decision becomes final, even the Court which rendered it cannot
lawfully alter or modify the same, especially where the alteration or
modification is material and substantial.
While the resolution of the instant petition can be arrived at by
confining the discussion to the issues raised in SPA No. 98-288, I
shall, nevertheless, explain why the issues in SPA No. 98-019 bear
upon the instant petition. This should not, however, mislead one into
thinking that this Court can motu proprio take cognizance of and
acquire jurisdiction over SPA No. 98-019 despite the fact that the
resolution therein had never been appealed to the Commission En
Banc nor had been subject of a motion for reconsideration; or that this
37

38

___________________
37

Maramba v. Lozano, 20 SCRA 474 (1967).

38

Samson v. Montejo, 9 SCRA 419 (1963).

648

60

648

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

Court can re-open a decided case that has long become final and
executory.
The pivotal issue posed in SPA No. 98-019 is: Whether Jose
Pempe C. Mirandas certificate of candidacy should be denied due
course and/or cancelled, by virtue of his having served the maximum
legal limit of three (3) consecutive terms for the same position.
The COMELEC First Division found that, indeed, Jose Pempe C.
Miranda had already served three (3) consecutive terms as mayor of
Santiago City, Isabela, and hence, is ineligible to run for the same
position in the May 11, 1998 elections. Note that in the decretal
portion of the said resolution, the Commission used the word
DISQUALIFIED. It bears stressing that neither of the parties
moved for reconsideration, thereby making said resolution final and
executory. As a result of the disqualification of Jose Pempe C.
Miranda as official mayoralty candidate of the LAMMP, the party was
constrained to field herein petitioner as substitute candidate.
Elections were held, and substitute candidate Joel G. Miranda,
petitioner herein, obtained the highest number of votes. It appears
that, only after the canvassing of votes showing petitioner in the lead
did private respondent, too late in the day, questioned the resolution
dated May 5, 1998, through a petition to declare null and void the
substitution of petitioner as official mayoralty candidate of the
LAMMP. It should be pointed out that from the time petitioner filed
his certificate of candidacy up until the counting of ballots and
canvassing of votes, private respondent did nothing to impugn the
validity of petitioners substitution and his certificate of candidacy.
In seeking to nullify petitioners certificate of candidacy as
substitute candidate for being void ab initio, private respondent
asserts that since his petition was denominated as a Petition to Deny
Due Course to and/or Cancel Certificate of Candidacy, the
COMELEC First Division, in resolving to
39

__________________
39

Petition, Annex H-1, Rollo, pp. 93-99.

649

VOL. 311, JULY 28, 1999

649

Miranda vs. Abaya

grant said petition, actually denied due course to and/or cancelled the
certificate of candidacy filed by Jose Pempe C. Miranda.
The COMELEC En Banc upheld private respondents contention
and criticized its First Division for having unwittingly committed a
serious error in semantics by using the term DISQUALIFIED,
instead of the more appropriate word CANCELLED. It ruled that
the erroneous word, notwithstanding, the certificate of candidacy of
Jose Pempe C. Miranda was deemed cancelled and/or denied due
course, and thus, there was no certificate of candidacy to be
substituted or replaced by the certificate of candidacy of
petitioner. The Commission En Bancdeduced that since the
cancellation of and/or denial of due course to a certificate of candidacy
is not one of the grounds for substitution under Section 77 of the
Omnibus Election Code, the substitution of petitioner is null and
void ab initio. Further, the Commission En Banc inferred that since
petitioner never acquired the status and personality of a registered
candidate, private respondent became the sole candidate for the
mayoralty post in Santiago City, Isabela. Therefore, when there is a
showing that private respondent obtained the requisite majority vote,
he should be proclaimed as duly elected mayor of Santiago City,
Isabela.
Turning now to the nexus or vinculum of SPA No. 98-019 to the
instant case, I have here occasion to discuss the disqualification of
Jose Pempe C. Miranda and the substitution of Joel G. Miranda as
mayoralty aspirant.
I am in total conformity with the choice of remedy of private
respondent in challenging the eligibility of Jose Pempe C.
Miranda. For when a material representation required by law to be
stated in a certificate of candidacy is false, the eligibility of the
candidate concerned may be impugned only through a petition to deny
due course to or cancel
40

41

42

43

__________________
40

Supra, note 26, pp. 85-86.

41

Ibid., p. 86.

42

Id., p. 89.

43

Id., p. 90.

650

61

650

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

47

651

certificate of candidacy. Section 78 of the Omnibus Election Code, in

relation to Section 74 of the same Code, operates to deny due course
and/or to cancel certificates of candidacy that contain material
representations that are false.
In his certificate of candidacy, Jose Pempe C. Miranda falsely
represented himself to be eligible for the office of mayor of Santiago
City, Isabela, when in fact, he had already served the maximum legal
limit of three (3) consecutive terms for the same position. The
ineligibility or disqualification of Jose Pempe C. Miranda from
seeking a fourth consecutive term finds justification in statutory and
constitutional law. But because he made a material representation in
his certificate of candidacy that is false, in violation of Section 74 of
the Omnibus Election Code, the proper recourse against the candidate
is via a petition to deny due course to or cancel a certificate of
candidacy under Section 78 of the same Code. This is not to say,
however, that the ineligibility of Jose Pempe C. Miranda merely or
solely stems from his false statement in his certificate of candidacy,
such that, if he omits said representa44

45

46

47

____________________
44

Section 1, Rule 23, COMELEC Rules of Procedure.

45

Sec. 74. Contents of certificate of candidacy.The certificate of candidacy shall

state that the person filing it is announcing his candidacy for the office stated therein
and that he is eligible for said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or district or sector
which he seeks to represent; the political party to which he belongs; civil status; his
date of birth; residence; his post office address for all election purposes; his profession
or occupation; that he will support and defend the Constitution of the Philippines and
will maintain true faith and allegiance thereto; that he will obey the laws, legal orders,
and decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation imposed by
his oath is assumed voluntarily, without mental reservation or purpose of evasion; and
that the facts stated in the certificate of candidacy are true to the best of his
knowledge. (Italics supplied)
46

Section 43(b), Republic Act No. 7160, otherwise known as the 1991 Local

Government Code.

Section 8, Article X, 1987 Philippine Constitution.

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

651

tion or, if he admits his ineligibility to seek the public office, then he
can run and be voted for in the May 11, 1998 elections. For even absent
the false material representation referred to in Section 78, in relation
to Section 74 of the Omnibus Election Code, Jose Pempe C. Miranda
is disqualified or ineligible to seek another consecutive term for the
same office ipso jure.
Stated differently, even if the petition filed by private respondent
was denominated as a Petition to Deny Due Course to and/or Cancel
Certificate of Candidacy, the fact remains that Jose Pempe C.
Miranda, in view of the term limits fixed under Section 8, Article X of
the Constitution and Section 43(b) of the Local Government Code, is
DISQUALIFIED to seek the mayoralty post a fourth time.
In fine, even if the petition was filed pursuant to Section 78, in
relation to Section 74 of the Omnibus Election Code,the COMELEC
First Division correctly found Jose Pempe C. Miranda to be
DISQUALIFIED, since the false material representation is
essentially based on his disqualification under relevant statutory and
constitutional provisions.
Indeed, the assertion of private respondent that there is a world of
difference between disqualified and denied due course and/or
canceled for purposes of substitution, is untenable. The hair-splitting
distinction which private respondent arduously explained, and to
which the majority subscribes, cannot, by any stretch of legal
hermeneutics, be construed as sanctioning a conclusion that a petition
to deny due course to and/or cancel a certificate of candidacy, when
granted, excludes a finding that the candidate concerned is
disqualified by virtue of his ineligibility as prescribed under statutory
and constitutional law.
The disqualification of Jose Pempe C. Miranda having been
established, I now proceed to determine the validity of the
substitution of Joel G. Miranda.
Private respondent, as sustained by the Commission En
Banc, makes capital of the argument that the substitute certificate of
candidacy filed by petitioner to replace the cancelled certificate of
candidacy of his father Jose Pempe C. Miranda, is fatally defective
for lack of legal basis, and as

62

652

652

653

SUPREME COURT REPORTS

ANNOTATED
Miranda vs. Abaya

such, the same is necessarily void ab initioand petitioner who filed the
same is not, in law, a candidate.
When, as in the instant case, an official mayoralty aspirant of a
political party has been declared disqualified for any reason to seek
said public office, Section 77 of the Omnibus Election Code operates to
authorize a substitute to file a certificate of candidacy, to replace the
candidate who was disqualified. Section 77 of the Omnibus Election
Code provides that x x xonly a person belonging to, and certified by,
the same political party may file a certificate of candidacy to replace
the candidate who died, withdrew or was disqualified x x x.
The term SUBSTITUTION ordinarily means replacement, or
turning to an alternative. Applying the evident intention of the law,
as literally expressed in Section 77 of the Omnibus Election Code, that
which is sought to be replaced is not the certificate of candidacy
previously filed, but to replace the candidate who died, withdrew or
was disqualified. The provision on substitution outlined under Section
77 of the Omnibus Election Code, enables the registered or accredited
political party to field a substitute candidate to replace the candidate
who died, withdrew or was disqualified. Private respondents
assertion that it is the certificate of candidacy which is to be
substituted or replaced by the substitute certificate of candidacy of
herein petitioner, is grossly inaccurate and logically flawed. What is
crystal clear from a reading of Section 77 of the Omnibus Election
Code, is that it authorizes a person (petitioner) belonging to and
nominated by the same political party (LAMMP) to replace the
candidate who was disqualified (Jose Pempe C. Miranda). In the
instant case, petitioner, who has filed the requisite certificate of
candidacy and certificate of nomination, is found to have validly
substituted or replaced Jose Pempe C. Miranda as official mayoralty
aspirant of the LAMMP in the May 11, 1998 elections, in Santiago
City, Isabela.
48

49

___________________

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

653

Private respondent, in challenging the validity of the substitution of

petitioner, alleges that petitioners certificate of candidacy was hastily
and prematurely filed. Private respondent further contends that,
there could not have been a valid substitution since the certificate of
nomination, which should accompany petitioners certificate of
candidacy, was not attested under oath by the party president,
chairman, secretarygeneral, or any other party officer duly authorized
in writing to do so, in contravention of the requirements of Section 5
of COMELEC Resolution No. 2977.
With respect to the contention that the substitution of petitioner
was done in haste and that his certificate of candidacy was
prematurely filed, I invite attention to the fact that the resolution
declaring Jose Pempe C. Miranda disqualified was promulgated on
May 5, 1998. If we were to follow the fiveday reglementary period
before a substitute candidate can file his certificate of candidacy, then
petitioner can only file his certificate of candidacy on May 11, 1998.
Considering that the purpose of filing a certificate of candidacy is to
apprise the voting public of ones candidacy for a particular elective
post, the petitioner and his party cannot certainly be faulted for filing
the substitute certificate of candidacy immediately after the
disqualification or before May 11, 1998. Since the resolution was
promulgated only on May 5, 1998, to strictly enforce the five-day
reglementary period on petitioner, as to permit him to file his
certificate of candidacy only on May 11, 1998, election day, would be
to effectively deprive him of the opportunity to make known publicly
his candidacy for the mayoralty post of Santiago City, Isabela.
With respect to the allegation that the petitioners certificate of
candidacy is fatally defective owing to the failure of the certificate of
nomination to bear an attestation under oath of the party president,
chairman, secretary-general, or any other party officer duly
authorized in writing to do so, it is my wellconsidered view that the
absence of an attestation under oath in the certificate of nomination,
does not render said certificate invalid. It is a rule of long-standing
that departure from
654

48

Supra, note 24, p. 68.

49

Supra, note 17, p. 52.

6
54

SUPREME COURT REPORTS

ANNOTATED
63

Miranda vs. Abaya

the formal requirements prescribed under the election laws, when
not used as a means for fraudulent practice, will be considered a
harmless irregularity. This irregularity, cannot invalidate the
certificate nor the election itself for the fundamental reason that,
after the people have expressed their sovereign choice, it being proven
that petitioner Joel G. Miranda obtained the majority of the legal
votes, the will of the people cannot be frustrated by a mere
technicality. It is judicially accepted that election rules, while
mandatory before the election, are merely directory after such election
and it is not just to nullify the will of the electorate by purely
technical reasons. In a long line of cases, this Court ruled that laws
governing election cases must be liberally construed, and that
technical and procedural barriers should not be allowed to stand if
they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials.
Finally, I cannot agree with public respondents ruling that private
respondent should be proclaimed as the winning candidate among
those voted upon as the duly elected Mayor of Santiago City in the
May 11, 1998 elections.
As records prove, petitioner Joel G. Miranda obtained the highest
number of votes, leading by 1,666 votes over private
respondent. Having been chosen and elected by the majority of the
voting populace of Santiago City, Isabela, petitioner is legally entitled
to serve in the capacity of city mayor.
Even on the assumption that Jose Pempe C. Miranda was
declared disqualified, private respondent, being the candidate who
obtained the second highest number of votes, cannot occupy the office
that was vacated as a result of the disqualification of petitioner, who
obtained the highest number of votes. By any mathematical
formulation, the runner-up cannot be construed to have obtained a
majority or plurality of votes cast where an ineligible candidate has
garnered either a majority or plurality of the votes. To simplistically
assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The
second placer is just that, a second placer. This is not to say that he
is bereft of any other recourse.
In view of the foregoing, it is my opinion that the Court should
GRANT the instant petition for certiorari and REVERSE and SET
ASIDE the resolution of public respondent COMELEC En Banc dated
50

51

52

53

54

55

56

57

58

December 8, 1998 for having been rendered with grave abuse of

discretion amounting to lack or excess of jurisdiction, as well as to
REINSTATE the resolution of the COMELEC First Division dated
May 16, 1998.
DISSENTING OPINION
PANGANIBAN, J.:
I appreciate the scholarly disquisition of the majority led by my
distinguished brother, Justice Jose A. R. Melo, explaining the
difference between the disqualification of a candidate and the
cancellation of his certificate of candidacy. The majority holds that,
under Section 77 of the Omnibus Election Code, there are only three
instances in which a candidate may be substituted, and these are
death, withdrawal or disqualification of such candidate. Inasmuch
as the certificate of candidacy of petitioners father, Jose Pempe
Miranda, was merely cancelled, he could not be legally substituted
by reason of the rule on statutory construction, expressio unius est
exclusio alterius.
I agree that there is some legal logic in this conclusion. However,
as the eminent Justice Oliver Wendell Holmes, Jr. has aptly said,
The life of the law has not been logic; it has been experience. With
due respect, may I point out that the problem with the majoritys
position is that it totally scuttles the result of the election for the
position of mayor and, instead, unceremoniously installs the elected
vice mayor to the said position.
There is no doubt that the petitioner was the peoples choice for
mayor. He garnered the highest number of votes in the election for
mayor of the City of Santiago. Why should this Court, in the name of
hair-splitting logic, obliterate the popular will and impose upon the
electorate a person whom nobody voted for the position of mayor?
Experience and common sense rebel against this proposition.
To start with, by virtue of the Comelec Resolution of May 5, 1998,
petitioners father was DISQUALIFIED from running for the
position of mayor of Santiago City, Isabela. However, Mr. Justice
Melo contends that he was not really disqualified; rather, the Comelec
GRANTED the petition of private re1

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The express mention of the things included excludes those not included.

German G. Lee, Jr.,Handbook of Legal Maxims, 2nd revised ed. (1998), p. 183.
2

The dispositive portion of the Resolution reads: WHEREFORE, in view of the

foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent

JOSE Pe[m]pe MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
657

VOL. 311, JULY 28, 1999

Miranda vs. Abaya

657

spondent who had prayed for the cancellation of Jose Pempe

Mirandas certificate of candidacy.
I can concede that the Comelec Resolution is less than perfect; in
fact, it may even be termed as confusing or contradictory. I submit,
however, that such confusion should not be used to thwart the will of
the electorate. I believe that in every 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 people, for it is but sound public policy to cause
electoral offices to be filled by the choice of the electorate. We must
liberally construe election laws and jurisprudence to give fullest effect
to the manifest will of our people and to give life and meaning to their
mandate. In every election, the peoples choice is the paramount
consideration and their expressed will must, in every way possible, be
given effect.
In the recent case Loong v. Comelec, the Court strongly exhorted
once more that the will of the people should not be kick[ed] away x x
x by giving a literal interpretation to [the law]. When the
sovereignty of the people is at stake, it is not enough for this Court to
make a statement but it should do everything to have that
sovereignty obeyed by all.
To buttress my Dissent, I hereby quote our en banc Decision
in Frivaldo v. Comelec:

sovereignty than to be right in complex but little understood legalisms.

[Emphasis supplied.]

Indeed, to inflict upon the electorate of Santiago City a person (the

vice mayor) whom they never voted for the position of mayor
constitutes, in my humble opinion, an unwarranted imposition on the
people and unacceptable assault to the judicial conscience.
WHEREFORE, I vote to GRANT the Petition.
Petition partly denied and partly granted.
Note.Jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc.
(Garvida vs. Sales, Jr., 271 SCRA 767 [1997])
o0o

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

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