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G.R. No. 160869

May 11, 2007

AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR


SCHOOL TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR
GUMANGAN
CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity as
the Secretary of Justice, Respondent.
DECISION
QUISUMBING, J.:
This is an original action for prohibition under Rule 65 of the 1997 Revised
Rules of Civil Procedure.
Petitioner filed the instant petition against respondent, then Secretary of
Justice Simeon Datumanong, the official tasked to implement laws
governing citizenship.1 Petitioner prays that a writ of prohibition be issued
to stop respondent from implementing Republic Act No. 9225, entitled "An
Act Making the Citizenship of Philippine Citizens Who Acquire Foreign
Citizenship Permanent, Amending for the Purpose Commonwealth Act No.
63, As Amended, and for Other Purposes." Petitioner avers that Rep. Act
No. 9225 is unconstitutional as it violates Section 5, Article IV of the 1987
Constitution that states, "Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law."
Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August
29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as the "Citizenship
Retention and Reacquisition Act of 2003."
SEC. 2. Declaration of Policy.-It is hereby declared the policy of the State
that all Philippine citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of
this Act.
SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines who have
lost their Philippine citizenship by reason of their naturalization as citizens

of a foreign country are hereby deemed to have reacquired Philippine


citizenship upon taking the following oath of allegiance to the Republic:
"I ___________________________, solemnly swear (or affirm) that I will
support and defend the Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will maintain true faith
and allegiance thereto; and that I impose this obligation upon myself
voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship
upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who
reacquire Philippine citizenship upon effectivity of this Act shall be deemed
citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet
the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe and swear
to an oath of allegiance to the Republic of the Philippines and its
duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country
where they took that oath;

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(4) Those intending to practice their profession in the Philippines


shall apply with the proper authority for a license or permit to
engage in such practice; and
(5) That right to vote or be elected or appointed to any public office
in the Philippines cannot be exercised by, or extended to, those
who:
(a) are candidates for or are occupying any public office in the
country of which they are naturalized citizens; and/or
(b) are in the active service as commissioned or noncommissioned
officers in the armed forces of the country which they are
naturalized citizens.
SEC. 6. Separability Clause. - If any section or provision of this Act is held
unconstitutional or invalid, any other section or provision not affected
thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations
inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.
SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15) days
following its publication in the Official Gazette or two (2) newspapers of
general circulation.
In this petition for prohibition, the following issues have been raised: (1) Is
Rep. Act No. 9225 unconstitutional? (2) Does this Court have jurisdiction to
pass upon the issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship.
He avers that Sections 2 and 3 of Rep. Act No. 9225, together, allow dual
allegiance and not dual citizenship. Petitioner maintains that Section 2
allows all Filipinos, either natural-born or naturalized, who become foreign
citizens, to retain their Philippine citizenship without losing their foreign
citizenship. Section 3 permits dual allegiance because said law allows
natural-born citizens of the Philippines to regain their Philippine citizenship
by simply taking an oath of allegiance without forfeiting their foreign

allegiance.2 The Constitution, however, is categorical that dual allegiance is


inimical to the national interest.
The Office of the Solicitor General (OSG) claims that Section 2 merely
declares as a state policy that "Philippine citizens who become citizens of
another country shall be deemed not to have lost their Philippine
citizenship." The OSG further claims that the oath in Section 3 does not
allow dual allegiance since the oath taken by the former Filipino citizen is an
effective renunciation and repudiation of his foreign citizenship. The fact
that the applicant taking the oath recognizes and accepts the supreme
authority of the Philippines is an unmistakable and categorical affirmation of
his undivided loyalty to the Republic.3
In resolving the aforecited issues in this case, resort to the deliberations of
Congress is necessary to determine the intent of the legislative branch in
drafting the assailed law. During the deliberations, the issue of whether
Rep. Act No. 9225 would allow dual allegiance had in fact been the subject
of debate. The record of the legislative deliberations reveals the following:
xxxx
Pursuing his point, Rep. Dilangalen noted that under the measure, two
situations exist - - the retention of foreign citizenship, and the reacquisition
of Philippine citizenship. In this case, he observed that there are two
citizenships and therefore, two allegiances. He pointed out that under the
Constitution, dual allegiance is inimical to public interest. He thereafter
asked whether with the creation of dual allegiance by reason of retention of
foreign citizenship and the reacquisition of Philippine citizenship, there will
now be a violation of the Constitution
Rep. Locsin underscored that the measure does not seek to address the
constitutional injunction on dual allegiance as inimical to public interest. He
said that the proposed law aims to facilitate the reacquisition of Philippine
citizenship by speedy means. However, he said that in one sense, it
addresses the problem of dual citizenship by requiring the taking of an
oath. He explained that the problem of dual citizenship is transferred from
the Philippines to the foreign country because the latest oath that will be
taken by the former Filipino is one of allegiance to the Philippines and not to
the United States, as the case may be. He added that this is a matter which
the Philippine government will have no concern and competence over.
Rep. Dilangalen asked why this will no longer be the country's concern,
when dual allegiance is involved.

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

From the above excerpts of the legislative record, it is clear that the intent
of the legislature in drafting Rep. Act No. 9225 is to do away with the
provision in Commonwealth Act No. 63 5 which takes away Philippine
citizenship from natural-born Filipinos who become naturalized citizens of
other countries. What Rep. Act No. 9225 does is allow dual citizenship to
natural-born Filipino citizens who have lost Philippine citizenship by reason
of their naturalization as citizens of a foreign country. On its face, it does
not recognize dual allegiance. By swearing to the supreme authority of the
Republic, the person implicitly renounces his foreign citizenship. Plainly,
from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual
allegiance and shifted the burden of confronting the issue of whether or not
there is dual allegiance to the concerned foreign country. What happens to
the other citizenship was not made a concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress has not
yet passed any law on the matter of dual allegiance, such absence of a law
should not be justification why this Court could not rule on the issue. He
further contends that while it is true that there is no enabling law yet on
dual allegiance, the Supreme Court, through Mercado v. Manzano, 6 already
had drawn up the guidelines on how to distinguish dual allegiance from dual
citizenship.7
For its part, the OSG counters that pursuant to Section 5, Article IV of the
1987 Constitution, dual allegiance shall be dealt with by law. Thus, until a
law on dual allegiance is enacted by Congress, the Supreme Court is
without any jurisdiction to entertain issues regarding dual allegiance. 8
To begin with, Section 5, Article IV of the Constitution is a declaration of a
policy and it is not a self-executing provision. The legislature still has to
enact the law on dual allegiance. In Sections 2 and 3 of Rep. Act No. 9225,
the framers were not concerned with dual citizenship per se, but with the
status of naturalized citizens who maintain their allegiance to their countries
of origin even after their naturalization. 9 Congress was given a mandate to
draft a law that would set specific parameters of what really constitutes
dual allegiance.10 Until this is done, it would be premature for the judicial
department, including this Court, to rule on issues pertaining to dual
allegiance.
Neither can we subscribe to the proposition of petitioner that a law is not
needed since the case of Mercado had already set the guidelines for
determining dual allegiance. Petitioner misreads Mercado. That case did not
set the parameters of what constitutes dual allegiance but merely made a
distinction between dual allegiance and dual citizenship.

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Moreover, in Estrada v. Sandiganbayan,11 we said that the courts must


assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and passed laws with full knowledge of the facts and for
the purpose of promoting what is right and advancing the welfare of the
majority. Hence, in determining whether the acts of the legislature are in
tune with the fundamental law, we must proceed with judicial restraint and
act with caution and forbearance. 12 The doctrine of separation of powers
demands no less. We cannot arrogate the duty of setting the parameters of
what constitutes dual allegiance when the Constitution itself has clearly
delegated the duty of determining what acts constitute dual allegiance for
study and legislation by Congress.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 209835, September 22, 2015
ROGELIO
BATIN
CABALLERO, Petitioner, v. COMMISSION
ON
ELECTIONS AND JONATHAN ENRIQUE V. NANUD, JR., Respondents.
DECISION
PERALTA, J.:
Before us is a petition for certiorari with prayer for issuance of a temporary
restraining order seeking to set aside the Resolution 1 dated November 6,
2013 of the Commission on Elections (COMELEC) En Banc which affirmed in
toto the Resolution2 dated May 3, 2013 of the COMELEC First Division
canceling the Certificate of Candidacy (COC) of petitioner Rogelio Batin
Caballero.
Petitioner3 and private respondent Jonathan Enrique V. Nanud, Jr.4 were
both candidates for the mayoralty position of the Municipality of Uyugan,
Province of Batanes in the May 13, 2013 elections. Private respondent filed
a Petition5 to deny due course to or cancellation of petitioner's certificate of
candidacy alleging that the latter made a false representation when he
declared in his COC that he was eligible to run for Mayor of Uyugan,
Batanes despite being a Canadian citizen and a nonresident thereof.
During the December 10, 2012 conference, petitioner, through counsel,
manifested that he was not properly served with a copy of the petition and
the petition was served by registered mail not in his address in Barangay
Imnajbu, Uyugan, Batanes. He, however, received a copy of the petition

during the conference. Petitioner did not file an Answer but filed a
Memorandum controverting private respondent's substantial allegations in
his
petition.
Petitioner argued that prior to the filing of his COC on October 3, 2012, he
took an Oath of Allegiance to the Republic of the Philippines before the
Philippine Consul General in Toronto, Canada on September 13, 2012 and
became a dual Filipino and Canadian citizen pursuant to Republic Act (RA)
No. 9225, otherwise known as the Citizenship Retention and Reacquisition
Act of 2003. Thereafter, he renounced his Canadian citizenship and
executed an Affidavit of Renunciation before a Notary Public in Batanes on
October 1, 2012 to conform with Section 5(2) of RA No. 9225. 6 He claimed
that he did not lose his domicile of origin in Uyugan, Batanes despite
becoming a Canadian citizen as he merely left Uyugan temporarily to
pursue a brighter future for him and his family; and that he went back to
Uyugan during his vacation while working in Nigeria, California, and finally
in
Canada.
On May 3, 2013, the COMELEC First Division issued a Resolution finding
that petitioner made a material misrepresentation in his COC when he
declared that he is a resident of Barangay Imnajbu, Uyugan, Batanes within
one year prior to the election. The decretal portion of the resolution
reads:cralawlawlibrary
WHEREFORE, premises considered, this Commission RESOLVED, as it
hereby RESOLVES to GRANT the instant Petition. The Certificate of
Candidacy of respondent Caballero is hereby CANCELLED.7chanrobleslaw
The COMELEC First Division did not discuss the procedural deficiency raised
by petitioner as he was already given a copy of the petition and also in
consonance with the Commission's constitutional duty of determining the
qualifications of petitioner to run for elective office. It found that while
petitioner complied with the requirements of RA No. 9225 since he had
taken his Oath of Allegiance to the Philippines and had validly renounced his
Canadian citizenship, he failed to comply with the other requirements
provided under RA No. 9225 for those seeking elective office, i.e., persons
who renounced their foreign citizenship must still comply with the one year
residency requirement provided for under Section 39 of the Local
Government Code. Petitioner's naturalization as a Canadian citizen resulted
in the abandonment of his domicile of origin in Uyugan, Batanes; thus,
having abandoned his domicile of origin, it is incumbent upon him to prove
that he was able to reestablish his domicile in Uyugan for him to be eligible
to run for elective office in said locality which he failed to do.
Elections were subsequently held on May 13, 2013 and the election returns
showed that petitioner won over private respondent. 8 Private respondent
filed
an
Urgent Ex-parte Motion
to
Defer
Proclamation.9

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On May 14, 2013, petitioner was proclaimed Mayor of Uyugan, Batanes.


On May 16, 2013, petitioner filed a Motion for Reconsideration with the
COMELEC En Banc assailing the May 3, 2013 Resolution issued by the
COMELEC's
First
Division
canceling
his
COC.
On May 17, 2013,
Proclamation.10

private

respondent

filed

Petition

to

Annul

On November 6, 2013, the COMELEC En Banc issued its assailed Resolution


denying
petitioner's
motion
for
reconsideration.
Petitioner filed with us the instant petition for certiorari with prayer for the
issuance
of
a
temporary
restraining
order.
In the meantime, private respondent filed a Motion for Execution 11 of the
May 3, 2013 Resolution of the COMELEC First Division as affirmed by the En
Banc and prayed for the cancellation of petitioner's COC, the appropriate
correction of the certificate of canvas to reflect that all votes in favor of
petitioner are stray votes, declaration of nullity of petitioner's proclamation
and proclamation of private respondent as the duly-elected Mayor of
Uyugan,
Batanes
in
the
May
13,
2013
elections.
On December 12, 2013, COMELEC Chairman Sixto S. Brillantes, Jr. issued a
Writ of Execution.12Private respondent took his Oath of Office 13 on
December
20,
2013.
In the instant petition for certiorari, petitioner
assignment of errors, to wit:cralawlawlibrary

raises

the

following

THE COMELEC EN BANC GRAVELY ERRED IN DISREGARDING THE CLEAR


IMPORT OF PROCEDURAL RULES PROVIDED FOR UNDER COMELEC
RESOLUTION NO. 9523 PROMULGATED ON 25 SEPTEMBER 2012.
THE COMELEC EN BANC GRAVELY ERRED IN FINDING THAT PETITIONER
ABANDONED HIS PHILIPPINE DOMICILE WHEN HE WORKED IN SEVERAL
FOREIGN
COUNTRIES
FOR
"GREENER
PASTURE."
EVEN ASSUMING THAT PETITIONER HAS ABANDONED HIS PHILIPPINE
DOMICILE WHEN HE BECAME A CANADIAN CITIZEN, HIS REACQUISITION
OF HIS FILIPINO CITIZENSHIP, TAKING OATH OF ALLEGIANCE TO THE
PHILIPPINE GOVERNMENT NINE (9) MONTHS PRIOR TO HIS ELECTION ON
13 MAY 2013, IS A SUBSTANTIAL COMPLIANCE WITH THE LAW ON
RESIDENCY.14chanrobleslaw
Petitioner contends that when private respondent filed a petition to deny

due course or to cancel his COC with the Office of the Municipal Election
Officer of Uyugan, Batanes, a copy thereof was not personally served on
him; that private respondent later sent a copy of the petition to him by
registered mail without an attached affidavit stating the reason on why
registered mail as a mode of service was resorted to. Petitioner argues that
private respondent violated Section 4, paragraphs (1) 15 and (4),16 Rule 23 of
the COMELEC Rules of Procedure, as amended by COMELEC Resolution No.
9523, thus, his petition to deny due course or cancel petitioner's certificate
of
candidacy
should
have
been
denied
outright.
We

are

not

convinced.

While private respondent failed to comply with the above-mentioned


requirements, the settled rule, however, is that the COMELEC Rules of
Procedure are subject to liberal construction. Moreover, the COMELEC may
exercise its power to suspend its own rules as provided under Section 4,
Rule 1 of their Rules of Procedure.cralawlawlibrary
Sec. 4. Suspension of the Rules. - In the interest of justice and in order to
obtain speedy disposition of all matters pending before the Commission,
these rules or any portion thereof may be suspended by the
Commission.chanrobleslaw
Under this authority, the Commission is similarly enabled to cope with all
situations without concerning itself about procedural niceties that do not
square with the need to do justice, in any case without further loss of time,
provided that the right of the parties to a full day in court is not
substantially
impaired.17
In Hayudini v. COMELEC,18 we sustained the COMELEC's liberal treatment of
respondent's petition to deny due course or cancel petitioner's COC despite
its failure to comply with Sections 2 and 4 of Rule 23 of the COMELEC Rules
of Procedure, as amended by Resolution No. 9523, i.e., pertaining to the
period to file petition and to provide sufficient explanation as to why his
petition was not served personally on petitioner, respectively, and held
that:cralawlawlibrary
As a general rule, statutes providing for election contests are to be liberally
construed in order that the will of the people in the choice of public officers
may not be defeated by mere technical objections. Moreover, it is neither
fair nor just to keep in office, for an indefinite period, one whose right to it
is uncertain and under suspicion. It is imperative that his claim be
immediately cleared, not only for the benefit of the winner but for the sake
of public interest, which can only be achieved by brushing aside
technicalities of procedure that protract and delay the trial of an ordinary
action. This principle was reiterated in the cases of Tolentino v. Commission

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on Elections and De Castro v. Commission on Elections, where the Court


held that "in exercising its powers and jurisdiction, as defined by its
mandate to protect the integrity of elections, the COMELEC must not be
straitjacketed by procedural rules in resolving election disputes."
Settled is the rule that the COMELEC Rules of Procedure are subject to
liberal construction. The COMELEC has the power to liberally interpret or
even suspend its rules of procedure in the interest of justice, including
obtaining a speedy disposition of all matters pending before it. This
liberality is for the purpose of promoting the effective and efficient
implementation of its objectives - ensuring the holding of free, orderly,
honest, peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of every action
and proceeding brought before the COMELEC. Unlike an ordinary civil
action, an election contest is imbued with public interest. It involves not
only the adjudication of private and pecuniary interests of rival candidates,
but also the paramount need of dispelling the uncertainty which beclouds
the real choice of the electorate. And the tribunal has the corresponding
duty to ascertain, by all means within its command, whom the people truly
chose as their rightful leader.19chanrobleslaw
Here, we find that the issue raised, i.e., whether petitioner had been a
resident of Uyugan, Batanes at least one (1) year before the elections held
on May 13, 2013 as he represented in his COC, pertains to his qualification
and eligibility to run for public office, therefore imbued with public interest,
which justified the COMELEC's suspension of its own rules. We adopt the
COMELEC's s ratiocination in accepting the petition, to wit:cralawlawlibrary
This Commission recognizes the failure of petitioner to comply strictly with
the procedure for filing a petition to deny due course to or cancel certificate
of candidacy set forth in Section 4, Rule 23 of the COMELEC Rules of
Procedure as amended by COMELEC Resolution No. 9523, which requires
service of a copy of the petition to respondent prior to its filing. But then,
we should also consider the efforts exerted by petitioner in serving a copy
of his petition to respondent after being made aware that such service is
necessary. We should also take note of the impossibility for petitioner to
personally serve a copy of the petition to respondent since he was in
Canada at the time of its filing as shown in respondent's travel records.
The very purpose of prior service of the petition to respondent is to afford
the latter an opportunity to answer the allegations contained in the petition
even prior to the service of summons by the Commission to him. In this
case, respondent was given a copy of the petition during the conference
held on 10 December 2012 and was ultimately accorded the occasion to
rebut all the allegations against him. He even filed a Memorandum
containing his defenses to petitioner's allegations. For all intents and
purposes, therefore, respondent was never deprived of due process which is

the

very

essence

of

this

Commission's

Rules

of

Procedure.

Even the Supreme Court acknowledges the need for procedural rules to bow
to substantive considerations "through a liberal construction aimed at
promoting their objective of securing a just, speedy and inexpensive
disposition
of
every
action
and
proceeding,
x
x
x
x

When a case is impressed with public interest, a relaxation of the


application
of
the
rules
is
in
order,
x
x
x.
Unquestionably, the instant case is impressed with public interest which
warrants the relaxation of the application of the [R]ules of [P]rocedure,
consistent with the ruling of the Supreme Court in several
cases.20chanrobleslaw
Petitioner next claims that he did not abandon his Philippine domicile. He
argues that he was born and baptized in Uyugan, Batanes; studied and had
worked therein for a couple of years, and had paid his community tax
certificate; and, that he was a registered voter and had exercised his right
of suffrage and even built his house therein. He also contends that he
usually comes back to Uyugan, Batanes during his vacations from work
abroad, thus, his domicile had not been lost. Petitioner avers that the
requirement of the law in fixing the residence qualification of a candidate
running for public office is not strictly on the period of residence in the place
where he seeks to be elected but on the acquaintance by the candidate on
his constituents' vital needs for their common welfare; and that his nine
months of actual stay in Uyugan, Batanes prior to his election is a
substantial compliance with the law. Petitioner insists that the COMELEC
gravely
abused
its
discretion
in
canceling
his
COC.
We

are

not

persuaded.

RA No. 9225, which is known as the Citizenship Retention and Reacquisition


Act of 2003, declares that natural-born citizens of the Philippines, who have
lost their Philippine citizenship by reason of their naturalization as citizens
of a foreign country, can re-acquire or retain his Philippine citizenship under
the conditions of the law.21 The law does not provide for residency
requirement for the reacquisition or retention of Philippine citizenship; nor
does it mention any effect of such reacquisition or retention of Philippine
citizenship on the current residence of the concerned natural-born Filipino. 22
RA No. 9225 treats citizenship independently of residence. 23 This is only
logical and consistent with the general intent of the law to allow for dual
citizenship. Since a natural-born Filipino may hold, at the same time, both
Philippine and foreign citizenships, he may establish residence either in the

CONFLICTS | JAN14| 7

Philippines or in the foreign country of which he is also a citizen. 24 However,


when a natural-born Filipino with dual citizenship seeks for an elective
public office, residency in the Philippines becomes material. Section 5(2) of
FLA No. 9225 provides:cralawlawlibrary
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
x
x
x
x
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.
chanrobleslaw
Republic Act No. 7160, which is known as the Local Government Code of
1991, provides, among others, for the qualifications of an elective local
official. Section 39 thereof states:cralawlawlibrary
SEC. 39. Qualifications. - (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.chanrobleslaw
Clearly, the Local Government Code requires that the candidate must be a
resident of the place where he seeks to be elected at least one year
immediately preceding the election day. Respondent filed the petition for
cancellation of petitioner's COC on the ground that the latter made material
misrepresentation when he declared therein that he is a resident of Uyugan,
Batanes for at least one year immediately preceeding the day of elections.
The term "residence" is to be understood not in its common acceptation as
referring to "dwelling" or "habitation," but rather to "domicile" or legal
residence,25 that is, "the place where a party actually or constructively has
his permanent home, where he, no matter where he may be found at any
given time, eventually intends to return and remain (animus manendi)."26 A
domicile of origin is acquired by every person at birth. It is usually the place
where the child's parents reside and continues until the same is abandoned
by acquisition of new domicile (domicile of choice). It consists not only in
the intention to reside in a fixed place but also personal presence in that

place,

coupled

with

conduct

indicative

of

such

intention. 27

Petitioner was a natural born Filipino who was born and raised in Uyugan,
Batanes. Thus, it could be said that he had his domicile of origin in Uyugan,
Batanes. However, he later worked in Canada and became a Canadian
citizen. In Coquilla v. COMELEC28 we ruled that naturalization in a foreign
country may result in an abandonment of domicile in the Philippines. This
holds true in petitioner's case as permanent resident status in Canada is
required for the acquisition of Canadian citizenship. 29 Hence, petitioner had
effectively abandoned his domicile in the Philippines and transferred his
domicile of choice in Canada. His frequent visits to Uyugan, Batanes during
his vacation from work in Canada cannot be considered as waiver of such
abandonment.
The next question is what is the effect of petitioner's retention of his
Philippine citizenship under RA No. 9225 on his residence or domicile?
In Japzon v. COMELEC,30 wherein respondent Ty reacquired his Philippine
citizenship under RA No. 9225 and run for Mayor of General Macarthur,
Eastern Samar and whose residency in the said place was put in issue, we
had the occasion to state, thus:cralawlawlibrary
[Petitioner's] reacquisition of his Philippine citizenship under
Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he
did not necessarily regain his domicile in the Municipality of General
Macarthur, Eastern Samar, Philippines. Ty merely had the option to again
establish his domicile in the Municipality of General Macarthur, Eastern
Samar, Philippines, said place becoming his new domicile of choice. The
length of his residence therein shall be determined from the time he made
it his domicile of choice, and it shall not retroact to the time of his
birth.31chanrobleslaw
Hence, petitioner's retention of his Philippine citizenship under RA No. 9225
did not automatically make him regain his residence in Uyugan, Batanes.
He must still prove that after becoming a Philippine citizen on September
13, 2012, he had reestablished Uyugan, Batanes as his new domicile of
choice which is reckoned from the time he made it as such.
The COMELEC found that petitioner failed to present competent evidence to
prove that he was able to reestablish his residence in Uyugan within a
period of one year immediately preceding the May 13, 2013 elections. It
found that it was only after reacquiring his Filipino citizenship by virtue of
RA No. 9225 on September 13, 2012 that petitioner can rightfully claim that
he re-established his domicile in Uyugan, Batanes, if such was accompanied
by physical presence thereat, coupled with an actual intent to reestablish
his domicile there. However, the period from September 13, 2012 to May

CONFLICTS | JAN14| 8

12, 2013 was even less than the one year residency required by law.
Doctrinally entrenched is the rule that in a petition for certiorari, findings of
fact of administrative bodies, such as respondent COMELEC in the instant
case, are final unless grave abuse of discretion has marred such factual
determinations/~ Clearly, where there is no proof of grave abuse of
discretion, arbitrariness, fraud or error of law in the questioned Resolutions,
we may not review the factual findings of COMELEC, nor substitute its own
findings
on
the
sufficiency
of
evidence. 33
Records indeed showed that petitioner failed to prove that he had been a
resident of Uyugan, Batanes for at least one year immediately preceding
the day of elections as required under Section 39 of the Local Government
Code.
Petitioner's argument that his nine (9) months of actual stay in Uyugan,
Batanes, prior to the May 13, 2013 local elections is a substantial
compliance with the law, is not persuasive. In Aquino v. Commission on
Elections,34 we held:cralawlawlibrary
x x x A democratic government is necessarily a government of laws. In a
republican government those laws are themselves ordained by the people.
Through their representatives, they dictate the qualifications necessary for
service in government positions. And as petitioner clearly lacks one of the
essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of
the Second District of Makati City would substitute for a requirement
mandated by the fundamental law itself.35chanrobleslaw
Petitioner had made a material misrepresentation by stating in his COC that
he is a resident of Uyugan, Batanes for at least one (1) year immediately
proceeding the day of the election, thus, a ground for a petition under
Section 78 of the Omnibus Election Code. Section 74, in relation to Section
78, of the OEC governs the cancellation of, and grant or denial of due
course to COCs, to wit:cralawlawlibrary
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.
x

SEC. 78. Petition to deny due course to or cancel a certificate of


candidacy. - A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than
fifteen days before the election.chanrobleslaw
We have held that in order to justify the cancellation of COC under Section
78, it is essential that the false representation mentioned therein pertains
to a material matter for the sanction imposed by this provision would affect
the substantive rights of a candidate - the right to run for the elective post
for which he filed the certificate of candidacy.36 We concluded that material
representation contemplated by Section 78 refers to qualifications for
elective office, such as the requisite residency, age, citizenship or any other
legal qualification necessary to run for a local elective office as provided for
in the Local Government Code. 37 Furthermore, aside from the requirement
of materiality, the misrepresentation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible.38 We, therefore, find no grave abuse of discretion
committed by the COMELEC in canceling petitioner's COC for material
misrepresentation.
WHEREFORE, the petition for certiorari is DISMISSED. The Resolution
dated May 3, 2013 of the COMELEC First Division and the Resolution dated
November 6, 2013 of the COMELEC En Banc and are hereby AFFIRMED.
SO ORDERED.

CONFLICTS | JAN14| 9

Private respondent Editha A. Agbay opposed the application on the ground


that petitioner, a Canadian citizen, is disqualified to own land. She also filed
a criminal complaint for falsification of public documents under Article 172
of the Revised Penal Code (RPC) (I.S. No. 08-6463) against the petitioner.
Meanwhile, petitioner
provisions of Republic
Identification Certificate
the
Philippines

G.R. No. 199113, March 18, 2015


RENATO M. DAVID, Petitioner, v. EDITHA A. AGBAY AND PEOPLE OF
THE PHILIPPINES, Respondents.

VILLARAMA, JR., J.:


This is a petition for review under Rule 45 seeking to reverse the
Order1 dated October 8, 2011 of the Regional Trial Court (RTC) of
Pinamalayan, Oriental Mindoro, which denied the petition for certiorari filed
by Renato M. David (petitioner). Petitioner assailed the Order 2 dated March
22, 2011 of the Municipal Trial Court (MTC) of Socorro, Oriental Mindoro
denying
his
motion
for
redetermination
of
probable
cause.
factual

In his defense, petitioner averred that at the time he filed his application,
he had intended to re-acquire Philippine citizenship and that he had been
assured by a CENRO officer that he could declare himself as a Filipino. He
further alleged that he bought the property from the Agbays who
misrepresented to him that the subject property was titled land and they
have the right and authority to convey the same. The dispute had in fact
led to the institution of civil and criminal suits between him and private
respondents
family.
On January 8, 2008,6 the Office of the Provincial Prosecutor issued its
Resolution7 finding probable cause to indict petitioner for violation of Article
172 of the RPC and recommending the filing of the corresponding
information in court. Petitioner challenged the said resolution in a petition
for review he filed before the Department of Justice (DOJ).

DECISION

The

re-acquired his Filipino citizenship under the


Act No. 9225, 4 (R.A. 9225) as evidenced by
No. 266-10-075 issued by the Consulate General of
(Toronto)
on
October
11,
2007.

antecedents:chanRoblesvirtualLawlibrary

In 1974, petitioner migrated to Canada where he became a Canadian


citizen by naturalization. Upon their retirement, petitioner and his wife
returned to the Philippines. Sometime in 2000, they purchased a 600square meter lot along the beach in Tambong, Gloria, Oriental Mindoro
where they constructed a residential house. However, in the year 2004,
they came to know that the portion where they built their house is public
land
and
part
of
the
salvage
zone.
On April 12, 2007, petitioner filed a Miscellaneous Lease Application 3 (MLA)
over the subject land with the Department of Environment and Natural
Resources (DENR) at the Community Environment and Natural Resources
Office (CENRO) in Socorro. In the said application, petitioner indicated that
he
is
a
Filipino
citizen.

On June 3, 2008, the CENRO issued an order rejecting petitioners MLA. It


ruled that petitioners subsequent re-acquisition of Philippine citizenship did
not
cure
the
defect
in
his
MLA
which
was
void ab
initio.8chanroblesvirtuallawlibrary
In the meantime, on July 26, 2010, the petition for review filed by
petitioner was denied by the DOJ which held that the presence of the
elements of the crime of falsification of public document suffices to warrant
indictment of the petitioner notwithstanding the absence of any proof that
he gained or intended to injure a third person in committing the act of
falsification.9 Consequently, an information for Falsification of Public
Document was filed before the MTC (Criminal Case No. 2012) and a warrant
of
arrest
was
issued
against
the
petitioner.
On February 11, 2011, after the filing of the Information and before his
arrest, petitioner filed an Urgent Motion for Re-Determination of Probable
Cause10 in the MTC. Interpreting the provisions of the law relied upon by
petitioner, the said court denied the motion, holding that R.A. 9225 makes a
distinction between those who became foreign citizens during its effectivity,
and those who lost their Philippine citizenship before its enactment when
the governing law was Commonwealth Act No. 63 11(CA 63). Since the crime
for which petitioner was charged was alleged and admitted to have been

CONFLICTS | JAN14| 10

committed on April 12, 2007 before he had re-acquired his Philippine


citizenship, the MTC concluded that petitioner was at that time still a
Canadian citizen. Thus, the MTC ordered:chanRoblesvirtualLawlibrary
WHEREFORE, for lack of jurisdiction over the person of the accused, and
for
lack
of
merit,
the
motion
is DENIED.

fact that petitioner is a natural-born Filipino citizen, and


that by re-acquiring the same status under R.A. No. 9225
he was by legal fiction deemed not to have lost it at the
time of his naturalization in Canada and through the time
when he was said to have falsely claimed Philippine
citizenship.

SO ORDERED.12
In his motion for reconsideration, 13 petitioner questioned the foregoing
order denying him relief on the ground of lack of jurisdiction and insisted
that the issue raised is purely legal. He argued that since his application
had yet to receive final evaluation and action by the DENR Region IV-B
office in Manila, it is academic to ask the citizenship of the applicant
(petitioner) who had re-acquired Philippine citizenship six months after he
applied for lease of public land. The MTC denied the motion for
reconsideration.14chanroblesvirtuallawlibrary

B. By compelling petitioner to first return from his legal


residence in Canada and to surrender or allow himself to be
arrested under a warrant for his alleged false claim to
Philippine citizenship, the lower court has pre-empted the
right of petitioner through his wife and counsel to question
the validity of the said warrant of arrest against him before
the same is implemented, which is tantamount to a denial
of due process.18

Dissatisfied, petitioner elevated the case to the RTC via a petition 15 for
certiorari under Rule 65, alleging grave abuse of discretion on the part of
the MTC. He asserted that first, jurisdiction over the person of an accused
cannot be a pre-condition for the re-determination of probable cause by the
court that issues a warrant of arrest; and second, the March 22, 2011 Order
disregarded the legal fiction that once a natural-born Filipino citizen who
had been naturalized in another country re-acquires his citizenship under
R.A. 9225, his Filipino citizenship is thus deemed not to have been lost on
account
of
said
naturalization.

In his Comment, the Solicitor General contends that petitioners argument


regarding the retroactivity of R.A. 9225 is without merit. It is contended
that
this
Courts
rulings
in Frivaldo
v.
Commission
on
Elections19 and Altarejos v. Commission on Elections 20 on the retroactivity of
ones re-acquisition of Philippine citizenship to the date of filing his
application therefor cannot be applied to the case of herein petitioner. Even
assuming for the sake of argument that such doctrine applies in the present
situation, it will still not work for petitioners cause for the simple reason
that he had not alleged, much less proved, that he had already applied for
reacquisition of Philippine citizenship before he made the declaration in the
Public Land Application that he is a Filipino. Moreover, it is stressed that in
falsification of public document, it is not necessary that the idea of gain or
intent to injure a third person be present. As to petitioners defense of good
faith, such remains to be a defense which may be properly raised and
proved
in
a
full-blown
trial.

In his Comment and Opposition, 16 the prosecutor emphasized that the act
of falsification was already consummated as petitioner has not yet reacquired his Philippine citizenship, and his subsequent oath to re-acquire
Philippine citizenship will only affect his citizenship status and not his
criminal act which was long consummated prior to said oath of allegiance.
On October 8, 2011, the RTC issued the assailed Order denying the petition
for certiorari after finding no grave abuse of discretion committed by the
lower court, thus:chanRoblesvirtualLawlibrary
ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not
left without any remedy or recourse because he can proceed to trial where
he can make use of his claim to be a Filipino citizen as his defense to be
adjudicated in a full blown trial, and in case of conviction, to appeal such
conviction.
SO ORDERED.17
Petitioner is now before us arguing that
A. By supporting the prosecution of the petitioner for
falsification, the lower court has disregarded the undisputed

On the issue of jurisdiction over the person of accused (petitioner), the


Solicitor General opines that in seeking an affirmative relief from the MTC
when he filed his Urgent Motion for Re-determination of Probable Cause,
petitioner is deemed to have submitted his person to the said courts
jurisdiction by his voluntary appearance. Nonetheless, the RTC correctly
ruled that the lower court committed no grave abuse of discretion in
denying the petitioners motion after a judicious, thorough and personal
evaluation of the parties arguments contained in their respective pleadings,
and
the
evidence
submitted
before
the
court.
In sum, the Court is asked to resolve whether (1) petitioner may be
indicted for falsification for representing himself as a Filipino in his Public
Land Application despite his subsequent re-acquisition of Philippine
citizenship under the provisions of R.A. 9225; and (2) the MTC properly
denied petitioners motion for re-determination of probable cause on the

CONFLICTS | JAN14| 11

ground of lack of jurisdiction over the person of the accused (petitioner).


R.A. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, was signed into law by President Gloria MacapagalArroyo on August 29, 2003. Sections 2 and 3 of said law
read:chanRoblesvirtualLawlibrary
SEC. 2. Declaration of Policy.It is hereby declared the policy of the State
that all Philippine citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the
conditions
of
this
Act.
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines who have
lost their Philippine citizenship by reason of their naturalization as citizens
of a foreign country are hereby deemed to have reacquired Philippine
citizenship upon taking the following oath of allegiance to the
Republic:chanRoblesvirtualLawlibrary
I ______________________, solemnly swear (or affirm) that I will
support and defend the Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will maintain true faith
and allegiance thereto; and that I impose this obligation upon myself
voluntarily without mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this
Act, become citizens of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos who have become
citizens of another country shall be deemed not to have lost their
Philippine citizenship, such is qualified by the phrase under the conditions
of this Act. Section 3 lays down such conditions for two categories of
natural-born Filipinos referred to in the first and second paragraphs. Under
the first paragraph are those natural-born Filipinos who have lost their
citizenship by naturalization in a foreign country who shall re-acquire their
Philippine citizenship upon taking the oath of allegiance to the Republic of
the Philippines. The second paragraph covers those natural-born Filipinos
who became foreign citizens after R.A. 9225 took effect, who shall retain
their Philippine citizenship upon taking the same oath. The taking of oath of
allegiance is required for both categories of natural-born Filipino citizens
who became citizens of a foreign country, but the terminology used is
different, re-acquired for the first group, and retain for the second
group.
The law thus makes a distinction between those natural-born Filipinos who
became foreign citizens before and after the effectivity of R.A. 9225.
Although the heading of Section 3 is Retention of Philippine Citizenship,

the authors of the law intentionally employed the terms re-acquire and
retain to describe the legal effect of taking the oath of allegiance to the
Republic of the Philippines. This is also evident from the title of the law
using
both
re-acquisition
and
retention.
In fine, for those who were naturalized in a foreign country, they shall be
deemed to have re-acquired their Philippine citizenship which was lost
pursuant to CA 63, under which naturalization in a foreign country is one of
the ways by which Philippine citizenship may be lost. As its title declares,
R.A. 9225 amends CA 63 by doing away with the provision in the old law
which takes away Philippine citizenship from natural-born Filipinos who
become naturalized citizens of other countries and allowing dual
citizenship,21 and also provides for the procedure for re-acquiring and
retaining Philippine citizenship. In the case of those who became foreign
citizens after R.A. 9225 took effect, they shall retain Philippine citizenship
despite having acquired foreign citizenship provided they took the oath of
allegiance
under
the
new
law.
Petitioner insists we should not distinguish between re-acquisition and
retention in R.A. 9225. He asserts that in criminal cases, that interpretation
of the law which favors the accused is preferred because it is consistent
with the constitutional presumption of innocence, and in this case it
becomes more relevant when a seemingly difficult question of law is
expected to have been understood by the accused, who is a non-lawyer, at
the time of the commission of the alleged offense. He further cites the
letter-reply dated January 31, 2011 22 of the Bureau of Immigration (BI) to
his query, stating that his status as a natural-born Filipino will be governed
by
Section
2
of
R.A.
9225.
These

contentions

have

no

merit.

That the law distinguishes between re-acquisition and retention of Philippine


citizenship was made clear in the discussion of the Bicameral Conference
Committee on the Disagreeing Provisions of House Bill No. 4720 and Senate
Bill No. 2130 held on August 18, 2003, where Senator Franklin Drilon was
responding
to
the
query
of
Representative
Exequiel
Javier:chanRoblesvirtualLawlibrary
REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of
the Senate version, Any provision of law on the contrary notwithstanding,
natural-born citizens of the Philippines who, after the effectivity of this Act,
shall and so forth, ano, shall retain their Philippine citizenship.
Now in the second paragraph, natural-born citizens who have lost their
citizenship by reason of their naturalization after the effectivity of this Act
are
deemed
to
have
reacquired
THE

CHAIRMAN

(SEN.

DRILON).

Prior

to

the

effectivity.

CONFLICTS | JAN14| 12

REP. JAVIER. Well, you have two kinds of natural-born citizens here.
Natural-born citizens who acquired foreign citizenship after the effectivity of
this act are considered to have retained their citizenship. But natural-born
citizens who lost their Filipino citizenship before the effectivity of this act
are considered to have reacquired. May I know the distinction? Do you
mean to say that natural-born citizens who became, lets say, American
citizens after the effectivity of this act are considered natural-born?
Now in the second paragraph are the natural-born citizens who lost their
citizenship before the effectivity of this act are no longer natural born
citizens because they have just reacquired their citizenship. I just want to
know
this
distinction,
Mr.
Chairman.
THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely
retention and reacquisition. The reacquisition will apply to those who
lost their Philippine citizenship by virtue of Commonwealth Act
63. Upon the effectivity -- assuming that we can agree on this, upon the
effectivity of this new measure amending Commonwealth Act 63, the
Filipinos who lost their citizenship is deemed to have reacquired their
Philippine
citizenship
upon
the
effectivity
of
the
act.
The second aspect is the retention of Philippine citizenship applying
to
future
instances. So
thats
the
distinction.
REP. JAVIER. Well, Im just asking this question because we are here
making distinctions between natural-born citizens. Because this is very
important for certain government positions, no, because natural-born
citizens
are
only
qualified
for
a
specific
THE

CHAIRMAN

(SEN.

DRILON).

That

is

correct.

REP. JAVIER. ...positions under the Constitution and under the law.
THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. Its one of
the provisions, yes. But just for purposes of the explanation, Congressman
Javier, that is our conceptualization. Reacquired for those who
previously lost [Filipino citizenship] by virtue of Commonwealth Act
63, and retention for those in the future. (Emphasis supplied)
Considering that petitioner was naturalized as a Canadian citizen prior to
the effectivity of R.A. 9225, he belongs to the first category of natural-born
Filipinos under the first paragraph of Section 3 who lost Philippine
citizenship by naturalization in a foreign country. As the new law allows dual
citizenship, he was able to re-acquire his Philippine citizenship by taking the
required
oath
of
allegiance.
For the purpose of determining the citizenship of petitioner at the time of

filing his MLA, it is not necessary to discuss the rulings


in Frivaldo and Altarejos on the retroactivity of such reacquisition because
R.A. 9225 itself treats those of his category as having already lost Philippine
citizenship, in contradistinction to those natural-born Filipinos who became
foreign citizens after R.A. 9225 came into force. In other words, Section 2
declaring the policy that considers Filipinos who became foreign citizens as
not to have lost their Philippine citizenship, should be read together with
Section 3, the second paragraph of which clarifies that such policy governs
all
cases
after
the
new
laws
effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without
any reference to Section 3 on the particular application of reacquisition and
retention to Filipinos who became foreign citizens before and after the
effectivity
of
R.A.
9225.
Petitioners plea to adopt the interpretation most favorable to the accused is
likewise misplaced. Courts adopt an interpretation more favorable to the
accused following the time-honored principle that penal statutes are
construed strictly against the State and liberally in favor of the
accused.23R.A.
9225,
however,
is
not
a
penal
law.
Falsification of documents under paragraph 1, Article 172 24 in relation to
Article 17125 of the RPC refers to falsification by a private individual, or a
public officer or employee who did not take advantage of his official
position, of public, private, or commercial documents. The elements of
falsification of documents under paragraph 1, Article 172 of the RPC
are:chanRoblesvirtualLawlibrary
(1) that the offender is a private individual or a public officer or employee
who did not take advantage of his official position;
(2) that he committed any of the acts of falsification enumerated in Article
171 of the RPC; and
(3) that the falsification was committed in a public, official or commercial
document.26
Petitioner made the untruthful statement in the MLA, a public document,
that he is a Filipino citizen at the time of the filing of said application, when
in fact he was then still a Canadian citizen. Under CA 63, the governing law
at the time he was naturalized as Canadian citizen, naturalization in a
foreign country was among those ways by which a natural-born citizen loses
his Philippine citizenship. While he re-acquired Philippine citizenship under
R.A. 9225 six months later, the falsification was already a consummated
act, the said law having no retroactive effect insofar as his dual citizenship
status is concerned. The MTC therefore did not err in finding probable cause
for falsification of public document under Article 172, paragraph 1.
The MTC further cited lack of jurisdiction over the person of petitioner

CONFLICTS | JAN14| 13

accused as ground for denying petitioners motion for re-determination of


probable cause, as the motion was filed prior to his arrest. However,
custody of the law is not required for the adjudication of reliefs other than
an application for bail.27 In Miranda v. Tuliao,28 which involved a motion to
quash warrant of arrest, this Court discussed the distinction between
custody of the law and jurisdiction over the person, and held that
jurisdiction over the person of the accused is deemed waived when he files
any pleading seeking an affirmative relief, except in cases when he invokes
the special jurisdiction of the court by impugning such jurisdiction over his
person. Thus:chanRoblesvirtualLawlibrary
In arguing, on the other hand, that jurisdiction over their person was
already acquired by their filing of the above Urgent Motion, petitioners
invoke our pronouncement, through Justice Florenz D. Regalado,
in Santiago v. Vasquez:chanRoblesvirtualLawlibrary
The voluntary appearance of the accused, whereby the court acquires
jurisdiction over his person, is accomplished either by his pleading to the
merits (such as by filing a motion to quash or other pleadings requiring the
exercise of the courts jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is
intended to obtain the provisional liberty of the accused, as a rule the same
cannot be posted before custody of the accused has been acquired by the
judicial authorities either by his arrest or voluntary surrender.cralawred

affirmative relief in court, whether in civil or criminal proceedings,


constitutes
voluntary
appearance.

Our pronouncement in Santiago shows a distinction between custody of the


law and jurisdiction over the person. Custody of the law is required before
the court can act upon the application for bail, but is not required for the
adjudication of other reliefs sought by the defendant where the mere
application therefor constitutes a waiver of the defense of lack of
jurisdiction over the person of the accused. Custody of the law is
accomplished either by arrest or voluntary surrender, while jurisdiction over
the person of the accused is acquired upon his arrest or voluntary
appearance. One can be under the custody of the law but not yet subject to
the jurisdiction of the court over his person, such as when a person
arrested by virtue of a warrant files a motion before arraignment to quash
the warrant. On the other hand, one can be subject to the jurisdiction of the
court over his person, and yet not be in the custody of the law, such as
when an accused escapes custody after his trial has commenced. Being in
the custody of the law signifies restraint on the person, who is thereby
deprived of his own will and liberty, binding him to become obedient to the
will of the law. Custody of the law is literally custody over the body of the
accused.
It
includes,
but
is
not
limited
to,
detention.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of


the Regional Trial Court of Pinamalayan, Oriental Mindoro in Civil Case No.
SCA-07-11 (Criminal Case No. 2012) is hereby AFFIRMED and UPHELD.

While we stand by our above pronouncement in Pico insofar as it concerns


bail, we clarify that, as a general rule, one who seeks an affirmative
relief is deemed to have submitted to the jurisdiction of the court.
As we held in the aforecited case of Santiago, seeking an

To recapitulate what we have discussed so far, in criminal cases,


jurisdiction over the person of the accused is deemed waived by the
accused when he files any pleading seeking an affirmative relief,
except in cases when he invokes the special jurisdiction of the court
by impugning such jurisdiction over his person. Therefore, in narrow
cases involving special appearances, an accused can invoke the processes
of the court even though there is neither jurisdiction over the person nor
custody of the law. However, if a person invoking the special jurisdiction of
the court applies for bail, he must first submit himself to the custody of the
law.29 (Emphasis supplied)
Considering that petitioner sought affirmative relief in filing his motion for
re-determination of probable cause, the MTC clearly erred in stating that it
lacked jurisdiction over his person. Notwithstanding such erroneous ground
stated in the MTCs order, the RTC correctly ruled that no grave abuse of
discretion was committed by the MTC in denying the said motion for lack of
merit.

With
SO ORDERED.

costs

against

the

petitioner.

CONFLICTS | JAN14| 14

Citizenship is a treasured right conferred on those whom the


state believes are deserving of the privilege. It is a precious
heritage, as well as an inestimable acquisition, [1] that cannot be
taken lightly by anyone - either by those who enjoy it or by those
who dispute it.
Before the Court are three consolidated cases, all of which raise a
single question of profound importance to the nation. The issue of
citizenship is brought up to challenge the qualifications of a presidential
candidate to hold the highest office of the land. Our people are waiting for
the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero
of silver screen, and now one of the main contenders for the presidency, a
natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and
American colonial roots and reminds us of the rich heritage of civil law and
common law traditions, the fusion resulting in a hybrid of laws and
jurisprudence that could be no less than distinctly Filipino.

[G.R. No. 161434. March 3, 2004]

MARIA

JEANETTE C. TECSON and FELIX B. DESIDERIO,


JR., petitioners, vs. The COMMISSION ON ELECTIONS,
RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and
VICTORINO X. FORNIER, respondents.

[G.R. No. 161634. March 3, 2004]

ZOILO

ANTONIO VELEZ, petitioner, vs. RONALD ALLAN


POE, a.k.a. FERNANDO POE, JR., respondent.

KELLEY

[G. R. No. 161824. March 3, 2004]

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON


ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN
AS FERNANDO POE JR., respondents.
DECISION
VITUG, J.:

Antecedent Case Settings


On 31 December 2003, respondent Ronald Allan Kelly Poe, also known
as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for
the position of President of the Republic of the Philippines under the
Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national
elections. In his certificate of candidacy, FPJ, representing himself to be a
natural-born citizen of the Philippines, stated his name to be "Fernando Jr.,"
or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place
of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino
X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan
Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09
January 2004, a petition docketed SPA No. 04-003 before the Commission
on Elections ("COMELEC") to disqualify FPJ and to deny due course or to
cancel his certificate of candidacy upon the thesis that FPJ made a material
misrepresentation in his certificate of candidacy by claiming to be a naturalborn Filipino citizen when in truth, according to Fornier, his parents were
foreigners; his mother, Bessie Kelley Poe, was an American, and his father,
Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish
subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino
citizen, he could not have transmitted his Filipino citizenship to FPJ, the
latter being an illegitimate child of an alien mother. Petitioner based the
allegation of the illegitimate birth of respondent on two assertions - first,
Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before
his marriage to Bessie Kelley and, second, even if no such prior marriage

CONFLICTS | JAN14| 15

had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.
In the hearing before the Third Division of the COMELEC on 19 January
2004, petitioner, in support of his claim, presented several documentary
exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy
of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her
having filed a case for bigamy and concubinage against the father of
respondent, Allan F. Poe, after discovering his bigamous relationship with
Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a
certified photocopy of the certificate of birth of Allan F. Poe, 5) a
certification issued by the Director of the Records Management and Archives
Office, attesting to the fact that there was no record in the National
Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of
the Archives Division of the National Archives to the effect that no available
information could be found in the files of the National Archives regarding
the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of
evidence, the more significant ones being - a) a certification issued by
Estrella M. Domingo of the Archives Division of the National Archives that
there appeared to be no available information regarding the birth of Allan F.
Poe in the registry of births for San Carlos, Pangasinan, b) a certification
issued by the Officer-In-Charge of the Archives Division of the National
Archives that no available information about the marriage of Allan F. Poe
and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan
Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for
the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax
Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name
of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a
copy of the purported marriage contract between Fernando Pou and Bessie
Kelley, and h) a certification issued by the City Civil Registrar of San Carlos
City, Pangasinan, stating that the records of birth in the said office during
the period of from 1900 until May 1946 were totally destroyed during World
War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack
of merit. Three days later, or on 26 January 2004, Fornier filed his motion
for reconsideration. The motion was denied on 06 February 2004 by the
COMELEC en banc. On 10 February 2004, petitioner assailed the decision of
the COMELEC before this Court conformably with Rule 64, in relation to Rule
65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No.
161824, likewise prayed for a temporary restraining order, a writ of
preliminary injunction or any other resolution that would stay the finality
and/or execution of the COMELEC resolutions.

The other petitions, later consolidated with G. R. No. 161824, would


include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B.
Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe
(a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other, docketed
G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley
Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the
COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of
the 1987 Constitution, only the Supreme Court had original and exclusive
jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court


In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the
COMELEC deny due course to or cancel FPJs certificate of candidacy for
alleged misrepresentation of a material fact (i.e., that FPJ was a naturalborn citizen) before the COMELEC, petitioner Fornier invoked Section 78 of
the Omnibus Election Code
Section 78. Petition to deny due course to or cancel a certificate of
candidacy. --- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52
of the Omnibus Election Code Section 52. Powers and functions of the Commission on Elections. In
addition to the powers and functions conferred upon it by the Constitution,
the Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose
of ensuring free, orderly and honest elections and in relation to Article 69 of the Omnibus Election Code which would
authorize "any interested party" to file a verified petition to deny or cancel
the certificate of candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed
by the Supreme Court per Rule 64 [2] in an action for certiorari under Rule
65[3] of the Revised Rules of Civil Procedure. Section 7, Article IX, of the
1987 Constitution also reads

CONFLICTS | JAN14| 16

"Each Commission shall decide by a majority vote of all its Members any
case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last pleading, brief, or
memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides
that judicial power is vested in one Supreme Court and in such lower courts
as may be established by law which power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
It is sufficiently clear that the petition brought up in G. R. No. 161824
was aptly elevated to, and could well be taken cognizance of by, this
Court. A contrary view could be a gross denial to our people of their
fundamental right to be fully informed, and to make a proper choice, on
who could or should be elected to occupy the highest government post in
the land.
In G. R. No. 161434 and G. R. No. 161634

Vice-President-Elect of the Philippines and Providing for the Manner of


Hearing the Same." Republic Act 1793 designated the Chief Justice and the
Associate Justices of the Supreme Court to be the members of the
tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected
Republic Act No. 1793, the statutory set-up, nonetheless, would now be
deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Ordinary usage would characterize a "contest" in reference to a postelection scenario. Election contests consist of either an election protest or
a quo warranto which, although two distinct remedies, would have one
objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of
the Presidential Electoral Tribunal," promulgated by the Supreme Court en
banc on 18 April 1992, would support this premise Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or VicePresident of the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an
election protest or a petition for quo warranto against the President or VicePresident. An election protest shall not include a petition for quo
warranto. A petition for quo warranto shall not include an election protest.

Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No.


161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the
1987 Constitution in assailing the jurisdiction of the COMELEC when it took
cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional
provision cited reads:

Rule 14. Election Protest. - Only the registered candidate for President or
for Vice-President of the Philippines who received the second or third
highest number of votes may contest the election of the President or the
Vice-President, as the case may be, by filing a verified petition with the
Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.

"The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose."

The rules categorically speak of the jurisdiction of the tribunal over


contests relating to the election, returns and qualifications of the
"President" or "Vice-President", of the Philippines, and not of "candidates"
for President or Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps, intrudes into, or
unlawfully holds or exercises a public office. [5] In such context, the election
contest can only contemplate a post-election scenario. In Rule 14, only a
registered candidate who would have received either the second or third
highest number of votes could file an election protest. This rule again
presupposes a post-election scenario.

The provision is an innovation of the 1987 Constitution. The omission in the


1935 and the 1973 Constitution to designate any tribunal to be the sole
judge of presidential and vice-presidential contests, has constrained this
Court to declare, in Lopez vs. Roxas,[4] as not (being) justiciable
controversies or disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The constitutional lapse
prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An
Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear
and Decide Protests Contesting the Election of the President-Elect and the

It is fair to conclude that the jurisdiction of the Supreme Court, defined


by Section 4, paragraph 7, of the 1987 Constitution, would not include
cases directly brought before it, questioning the qualifications of a

CONFLICTS | JAN14| 17

candidate for the presidency or vice-presidency before the elections are


held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et
al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled
"Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr."
would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief
historical background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by
Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer
to a man who shared in the administration of justice and in the holding of
an office.[6] Aristotle saw its significance if only to determine the
constituency of the "State," which he described as being composed of such
persons who would be adequate in number to achieve a self-sufficient
existence.[7] The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty
could be expected. Citizenship was seen to deal with rights and
entitlements, on the one hand, and with concomitant obligations, on the
other.[8] In its ideal setting, a citizen was active in public life and
fundamentally willing to submit his private interests to the general interest
of society.
The concept of citizenship had undergone changes over the
centuries. In the 18th century, the concept was limited, by and large,
to civil citizenship, which established the rights necessary for individual
freedom, such as rights to property, personal liberty and justice. [9] Its
meaning expanded during the 19th century to include political citizenship,
which encompassed the right to participate in the exercise of political
power.[10] The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic wellbeing and social security.[11] The idea of citizenship has gained expression in
the modern welfare state as it so developed in Western Europe. An ongoing
and final stage of development, in keeping with the rapidly shrinking global
village, might well be the internationalization of citizenship.[12]

The Local Setting - from Spanish


Times to the Present
There was no such term as "Philippine citizens" during the Spanish
regime but "subjects of Spain" or "Spanish subjects."[13] In church records,
the natives were called 'indios', denoting a low regard for the inhabitants of

the archipelago. Spanish laws on citizenship became highly codified during


the 19th century but their sheer number made it difficult to point to one
comprehensive law. Not all of these citizenship laws of Spain however, were
made to apply to the Philippine Islands except for those explicitly extended
by Royal Decrees.[14]
Spanish laws on citizenship were traced back to the Novisima
Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the
law was extended to the Philippines remained to be the subject of differing
views among experts;[15] however, three royal decrees were undisputably
made applicable to Spaniards in the Philippines - the Order de la
Regencia of 14 August 1841,[16] the Royal Decree of 23 August 1868
specifically defining the political status of children born in the Philippine
Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870,
which was expressly made applicable to the Philippines by the Royal Decree
of 13 July 1870.[18]
The Spanish Constitution of 1876 was never extended to the Philippine
Islands because of the express mandate of its Article 89, according to which
the provisions of the Ultramar among which this country was included,
would be governed by special laws.[19]
It was only the Civil Code of Spain, made effective in this jurisdiction
on 18 December 1889, which came out with the first categorical
enumeration of who were Spanish citizens. (a) Persons born in Spanish territory,
(b) Children of a Spanish father or mother, even if they were born
outside of Spain,
(c) Foreigners who have obtained naturalization papers,
(d) Those who, without such papers, may have become domiciled
inhabitants of any town of the Monarchy.[20]
The year 1898 was another turning point in Philippine history. Already
in the state of decline as a superpower, Spain was forced to so cede her
sole colony in the East to an upcoming world power, the United States. An
accepted principle of international law dictated that a change in sovereignty,
while resulting in an abrogation of all political laws then in force, would
have no effect on civil laws, which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between
Spain and the United States. [21] Under Article IX of the treaty, the civil rights
and political status of the native inhabitants of the territories ceded to the
United States would be determined by its Congress -

CONFLICTS | JAN14| 18

"Spanish subjects, natives of the Peninsula, residing in the territory over


which Spain by the present treaty relinquishes or cedes her sovereignty
may remain in such territory or may remove therefrom, retaining in either
event all their rights of property, including the right to sell or dispose of
such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect
thereof to such laws as are applicable to foreigners. In case they remain in
the territory they may preserve their allegiance to the Crown of Spain by
making, before a court of record, within a year from the date of the
exchange of ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they shall be held
to have renounced it and to have adopted the nationality of the territory in
which they reside.
Thus
"The civil rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be determined by the
Congress."[22]
Upon the ratification of the treaty, and pending legislation by the United
States Congress on the subject, the native inhabitants of the Philippines
ceased to be Spanish subjects.Although they did not become American
citizens, they, however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the Philippines
entitled to the protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time
in the Philippine Bill of 1902, also commonly referred to as the Philippine
Organic Act of 1902, the first comprehensive legislation of the Congress of
the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside
therein, who were Spanish subjects on the 11th day of April, 1891, and
then resided in said Islands, and their children born subsequent thereto,
shall be deemed and held to be citizens of the Philippine Islands and as
such entitled to the protection of the United States, except such as shall
have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United
States and Spain, signed at Paris, December tenth eighteen hundred and
ninety eight."[23]
Under the organic act, a citizen of the Philippines was one who was an
inhabitant of the Philippines, and a Spanish subject on the 11 th day of April
1899. The term inhabitant was taken to include 1) a native-born inhabitant,

2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant


who obtained Spanish papers on or before 11 April 1899. [24]
Controversy arose on to the status of children born in the Philippines
from 11 April 1899 to 01 July 1902, during which period no citizenship law
was extant in the Philippines.Weight was given to the view, articulated in
jurisprudential writing at the time, that the common law principle of jus
soli, otherwise also known as the principle of territoriality, operative in the
United States and England, governed those born in the Philippine
Archipelago within that period.[25] More about this later.
In 23 March 1912, the Congress of the United States made the
following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by
law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the
natives of other insular possession of the United States, and such other
persons residing in the Philippine Islands who would become citizens of the
United States, under the laws of the United States, if residing therein." [26]
With the adoption of the Philippine Bill of 1902, the concept of
"Philippine citizens" had for the first time crystallized. The word "Filipino"
was used by William H. Taft, the first Civil Governor General in the
Philippines when he initially made mention of it in his slogan, "The
Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also
known as the Jones Law restated virtually the provisions of the Philippine
Bill of 1902, as so amended by the Act of Congress in 1912 That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninetynine, and then resided in said Islands, and their children born
subsequently thereto, shall be deemed and held to be citizens of
the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris
December tenth, eighteen hundred and ninety-eight and except such others
as have since become citizens of some other country; Provided, That the
Philippine Legislature, herein provided for, is hereby authorized to provide
for the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of the
insular possessions of the United States, and such other persons residing in
the Philippine Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States, if
residing therein."

CONFLICTS | JAN14| 19

Under the Jones Law, a native-born inhabitant of the Philippines was


deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a
subject of Spain on 11 April 1899, 2) residing in the Philippines on said
date, and, 3) since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or
not jus soli was a mode of acquiring citizenship, the 1935 Constitution
brought to an end to any such link with common law, by adopting, once and
for all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship Section 1, Article III, 1935 Constitution. The following are citizens of the
Philippines (1) Those who are citizens of the Philippine Islands at the time of the
adoption of this Constitution
(2) Those born in the Philippines Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the
Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and upon reaching
the age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
Subsection (4), Article III, of the 1935 Constitution, taken together
with existing civil law provisions at the time, which provided that women
would automatically lose their Filipino citizenship and acquire that of their
foreign husbands, resulted in discriminatory situations that effectively
incapacitated the women from transmitting their Filipino citizenship to their
legitimate children and required illegitimate children of Filipino mothers to
still elect Filipino citizenship upon reaching the age of majority. Seeking to
correct this anomaly, as well as fully cognizant of the newly found status of
Filipino women as equals to men, the framers of the 1973 Constitution
crafted the provisions of the new Constitution on citizenship to reflect such
concerns Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution.

(2) Those whose fathers or mothers are citizens of the Philippines.


(3) Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
(4) Those who are naturalized in accordance with law.

that

For good measure, Section 2 of the same article also further provided

"A female citizen of the Philippines who marries an alien retains her
Philippine citizenship, unless by her act or omission she is deemed, under
the law to have renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973
Constitution, except for subsection (3) thereof that aimed to correct the
irregular situation generated by the questionable proviso in the 1935
Constitution.
Section I, Article IV, 1987 Constitution now provides:
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those born before January 17, 1973 of Filipino mothers, who
elect Philippine citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.

The Case Of FPJ


Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen
of the Philippines, a registered voter, able to read and write, at least forty
years of age on the day of the election, and a resident of the Philippines for
at least ten years immediately preceding such election."

CONFLICTS | JAN14| 20

The term "natural-born citizens," is defined to include "those who are


citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship." [27]

5. At the time of his death on 11 September 1954, Lorenzo Poe


was 84 years old.

The date, month and year of birth of FPJ appeared to be 20 August


1939 during the regime of the 1935 Constitution. Through its history, four
modes of acquiring citizenship - naturalization, jus soli, res judicata and jus
sanguinis[28] had been in vogue. Only two, i.e., jus soli and jus sanguinis,
could qualify a person to being a natural-born citizen of the Philippines. Jus
soli, per Roa vs. Collector of Customs[29] (1912), did not last long. With the
adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs.
Secretary of Labor[30] (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.

Would the above facts be sufficient or insufficient to establish the fact


that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F.
Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate
of Lorenzo Pou are documents of public record in the custody of a public
officer. The documents have been submitted in evidence by both contending
parties during the proceedings before the COMELEC.

Documentary evidence adduced by petitioner would tend to indicate


that the earliest established direct ascendant of FPJ was his paternal
grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F.
Poe. While the record of birth of Lorenzo Pou had not been presented in
evidence, his death certificate, however, identified him to be a Filipino, a
resident of San Carlos, Pangasinan, and 84 years old at the time of his
death on 11 September 1954. The certificate of birth of the father of FPJ,
Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father,
Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by
petitioner was an uncertified copy of a supposed certificate of the alleged
marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage
certificate of Allan F. Poe and Bessie Kelley reflected the date of their
marriage to be on 16 September 1940. In the same certificate, Allan F. Poe
was stated to be twenty-five years old, unmarried, and a Filipino citizen,
and Bessie Kelley to be twenty-two years old, unmarried, and an American
citizen. The birth certificate of FPJ, would disclose that he was born on 20
August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to
Bessie Kelly, an American citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of
some of the entries on the birth certificate of respondent and the marriage
certificate of his parents, the only conclusions that could be drawn with
some degree of certainty from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie Kelley;

The birth certificate of FPJ was marked Exhibit "A" for petitioner and
Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie
Kelley was submitted as Exhibit "21" for respondent. The death certificate
of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the
last two documents were submitted in evidence for respondent, the
admissibility thereof, particularly in reference to the facts which they
purported to show, i.e., the marriage certificate in relation to the date of
marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to
the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan,
were all admitted by petitioner, who had utilized those material statements
in his argument. All three documents were certified true copies of the
originals.
Section 3, Rule 130, Rules of Court states that Original document must be produced; exceptions. - When the subject of
inquiry is the contents of a document, no evidence shall be admissible other
than the original document itself, except in the following cases:
xxxxxxxxx
(d) When the original is a public record in the custody of a public office or is
recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage
certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of
FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of
the Rules of Court provides:

2. FPJ was born to them on 20 August 1939;


3. Allan F. Poe and Bessie Kelley were married to each other on 16
September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and

Entries in official records. Entries in official records made in the


performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.

CONFLICTS | JAN14| 21

The trustworthiness of public documents and the value given to the


entries made therein could be grounded on 1) the sense of official duty in
the preparation of the statement made, 2) the penalty which is usually
affixed to a breach of that duty, 3) the routine and disinterested origin of
most such statements, and 4) the publicity of record which makes more
likely the prior exposure of such errors as might have occurred. [31]
The death certificate of Lorenzo Pou would indicate that he died on 11
September 1954, at the age of 84 years, in San Carlos, Pangasinan. It
could thus be assumed that Lorenzo Pou was born sometime in the year
1870 when the Philippines was still a colony of Spain. Petitioner would
argue that Lorenzo Pou was not in the Philippines during the crucial period
of from 1898 to 1902 considering that there was no existing record about
such fact in the Records Management and Archives Office. Petitioner,
however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo
Pou was stated to be San Carlos, Pangasinan. In the absence of any
evidence to the contrary, it should be sound to conclude, or at least to
presume, that the place of residence of a person at the time of his death
was also his residence before death. It would be extremely doubtful if the
Records Management and Archives Office would have had complete records
of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation


Under Civil Law.
Petitioner submits, in any case, that in establishing filiation
(relationship or civil status of the child to the father [or mother]) or
paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to
petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines
from 08 December 1889 up until the day prior to 30 August 1950 when the
Civil Code of the Philippines took effect, acknowledgment was required to
establish filiation or paternity. Acknowledgment was either judicial
(compulsory) or voluntary. Judicial or compulsory acknowledgment was
possible only if done during the lifetime of the putative parent; voluntary
acknowledgment could only be had in a record of birth, a will, or a public
document.[32]Complementary to the new code was Act No. 3753 or the Civil
Registry Law expressing in Section 5 thereof, that In case of an illegitimate child, the birth certificate shall be signed and
sworn to jointly by the parents of the infant or only by the mother if the
father refuses. In the latter case, it shall not be permissible to state or

reveal in the document the name of the father who refuses to acknowledge
the child, or to give therein any information by which such father could be
identified.
In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be
signed or sworn to by the father.The failure of such requirement rendered
the same useless as being an authoritative document of recognition.
[33]
In Mendoza vs. Mella,[34] the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the
question here really is whether or not his birth certificate (Exhibit 1), which
is merely a certified copy of the registry record, may be relied upon as
sufficient proof of his having been voluntarily recognized. No such reliance,
in our judgment, may be placed upon it. While it contains the names of
both parents, there is no showing that they signed the original, let alone
swore to its contents as required in Section 5 of Act No. 3753. For all that
might have happened, it was not even they or either of them who furnished
the data to be entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document wherein voluntary
recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear
statement in the document that the parent recognizes the child as his or
her own."
In the birth certificate of respondent FPJ, presented by both parties,
nowhere in the document was the signature of Allan F. Poe found. There
being no will apparently executed, or at least shown to have been executed,
by decedent Allan F. Poe, the only other proof of voluntary recognition
remained to be "some other public document." In Pareja vs. Pareja,[35] this
Court defined what could constitute such a document as proof of voluntary
acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents,
those executed by private individuals which must be authenticated
by notaries, and those issued by competent public officials by reason of
their office. The public document pointed out in Article 131 as one of the
means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of
illegitimate children into voluntary, legal or compulsory. Voluntary
recognition was required to be expressedly made in a record of birth, a will,
a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an

CONFLICTS | JAN14| 22

illegitimate child who was recognized or judicially declared as


natural. Compulsory acknowledgment could be demanded generally in
cases when the child had in his favor any evidence to prove filiation. Unlike
an action to claim legitimacy which would last during the lifetime of the
child, and might pass exceptionally to the heirs of the child, an action to
claim acknowledgment, however, could only be brought during the lifetime
of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument,
"authentic writing," so as to be an authentic writing for purposes of
voluntary recognition, simply as being a genuine or indubitable writing of
the father. The term would include a public instrument (one duly
acknowledged before a notary public or other competent official) or a
private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article
173, and Article 175 provide:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 173. The action to claim legitimacy may be brought by the child during
his or her lifetime and shall be transmitted to the heirs should the child die
during minority or in a state of insanity. In these cases, the heirs shall have
a period of five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding
the death of either or both of the parties.
x x x x x x x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
The provisions of the Family Code are retroactively applied; Article 256
of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals, [36] the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child
should be decided under Article 278 of the Civil Code of the
Philippines. Article 2260 of that Code provides that 'the voluntary
recognition of a natural child shall take place according to this Code, even if
the child was born before the effectivity of this body of laws' or before
August 30, 1950. Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the
acknowledgment or recognition of illegitimate children is an attempt to
break away from the traditional idea of keeping well apart legitimate and
non-legitimate relationships within the family in favor of the greater interest
and welfare of the child. The provisions are intended to merely govern the
private and personal affairs of the family. There is little, if any, to indicate
that the legitimate or illegitimate civil status of the individual would also
affect his political rights or, in general, his relationship to the State. While,
indeed, provisions on "citizenship" could be found in the Civil Code, such
provisions must be taken in the context of private relations, the domain of
civil law; particularly "Civil Law is that branch of law which has for its double purpose the
organization of the family and the regulation of property. It has thus [been]
defined as the mass of precepts which determine and regulate the relations
of assistance, authority and obedience among members of a family, and
those which exist among members of a society for the protection of private
interests."[37]
In Yaez de Barnuevo vs. Fuster,[38] the Court has held:

CONFLICTS | JAN14| 23

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws
relating to family rights and duties, or to the status, condition and legal
capacity of persons, govern Spaniards although they reside in a foreign
country; that, in consequence, 'all questions of a civil nature, such as those
dealing with the validity or nullity of the matrimonial bond, the domicile of
the husband and wife, their support, as between them, the separation of
their properties, the rules governing property, marital authority, division of
conjugal property, the classification of their property, legal causes for
divorce, the extent of the latter, the authority to decree it, and, in general,
the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national
law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best
exemplified in Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad" that explains the need to incorporate in the code a reiteration of the
Constitutional provisions on citizenship. Similarly, citizenship is significant in
civil relationships found in different parts of the Civil Code, [39] such as on
successional rights and family relations. [40] In adoption, for instance, an
adopted child would be considered the child of his adoptive parents and
accorded the same rights as their legitimate child but such legal fiction
extended only to define his rights under civil law [41] and not his political
status.
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and property
laws, which, while defining proprietary and successional rights of members
of the family, provided distinctions in the rights of legitimate and
illegitimate children. In the monarchial set-up of old Spain, the distribution
and inheritance of titles and wealth were strictly according to bloodlines and
the concern to keep these bloodlines uncontaminated by foreign blood was
paramount.
These distinctions between legitimacy and illegitimacy were codified in
the Spanish Civil Code, and the invidious discrimination survived when the
Spanish Civil Code became the primary source of our own Civil Code. Such
distinction, however, remains and should remain only in the sphere of civil
law and not unduly impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his
citizenship status should thus be deemed independent from and not
inextricably tied up with that prescribed for civil law purposes. The Civil

Code or Family Code provisions on proof of filiation or paternity, although


good law, do not have preclusive effects on matters alien to personal and
family relations. The ordinary rules on evidence could well and should
govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code
provisions.
Section 39, Rule 130, of the Rules of Court provides Act or Declaration about pedigree. The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word
`pedigree includes relationship, family genealogy, birth, marriage, death,
the dates when and the places where these facts occurred, and the names
of the relatives. It embraces also facts of family history intimately
connected with pedigree.
For the above rule to apply, it would be necessary that (a) the
declarant is already dead or unable to testify, (b) the pedigree of a person
must be at issue, (c) the declarant must be a relative of the person whose
pedigree is in question, (d) declaration must be made before the
controversy has occurred, and (e) the relationship between the declarant
and the person whose pedigree is in question must be shown by evidence
other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas,
sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC,
might be accepted to prove the acts of Allan F. Poe, recognizing his own
paternal relationship with FPJ, i.e, living together with Bessie Kelley and his
children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing
in Stockton, California, U.S.A., after being sworn in accordance with law do
hereby declare that:
1. I am the sister of the late Bessie Kelley Poe.
2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
3. Fernando and Bessie Poe had a son by the name of Ronald
Allan Poe, more popularly known in the Philippines as
`Fernando Poe, Jr., or `FPJ.

CONFLICTS | JAN14| 24

4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St.
Luke's Hospital, Magdalena Street, Manila.
xxxxxxxxx
7. Fernando Poe Sr., and my sister Bessie, met and became
engaged while they were students at the University of the
Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.
8. Fernando Poe, Sr., and my sister Bessie had their first child in
1938.
9. Fernando Poe, Sr., my sister Bessie and their first three
children, Elizabeth, Ronald, Allan and Fernando II, and
myself lived together with our mother at our family's house
on Dakota St. (now Jorge Bocobo St.), Malate until the
liberation of Manila in 1945, except for some months
between 1943-1944.
10. Fernando Poe, Sr., and my sister, Bessie, were blessed with
four (4) more children after Ronald Allan Poe.
xxxxxxxxx
18. I am executing this Declaration to attest to the fact that my
nephew, Ronald Allan Poe is a natural born Filipino, and that
he is the legitimate child of Fernando Poe, Sr.
Done in City of Stockton, California, U.S.A., this 12th day of
January 2004.
Ruby Kelley Mangahas
Declarant

DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to. A positive

match would clear up filiation or paternity. In Tijing vs. Court of Appeals,


[42]
this Court has acknowledged the strong weight of DNA testing "Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have now
the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy from
the mother and the other from the father. The DNA from the mother, the
alleged father and the child are analyzed to establish parentage. Of course,
being a novel scientific technique, the use of DNA test as evidence is still
open to challenge. Eventually, as the appropriate case comes, courts should
not hesitate to rule on the admissibility of DNA evidence. For it was said,
that courts should apply the results of science when competently obtained
in aid of situations presented, since to reject said result is to deny
progress."

Petitioners Argument For


Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen,
he could not have transmitted his citizenship to respondent FPJ, the latter
being an illegitimate child.According to petitioner, prior to his marriage to
Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a
certain Paulita Gomez, making his subsequent marriage to Bessie Kelley
bigamous and respondent FPJ an illegitimate child. The veracity of the
supposed certificate of marriage between Allan F. Poe and Paulita Gomez
could be most doubtful at best. But the documentary evidence introduced
by no less than respondent himself, consisting of a birth certificate of
respondent and a marriage certificate of his parents showed that FPJ was
born on 20 August 1939 to a Filipino father and an American mother who
were married to each other a year later, or on 16 September 1940. Birth to
unmarried parents would make FPJ an illegitimate child. Petitioner
contended that as an illegitimate child, FPJ so followed the citizenship of his
mother, Bessie Kelley, an American citizen, basing his stand on the ruling of
this Court in Morano vs. Vivo,[43] citing Chiongbian vs. de Leon[44] and Serra
vs. Republic.[45]
On the above score, the disquisition made by amicus curiae Joaquin G.
Bernas, SJ, is most convincing; he states -

CONFLICTS | JAN14| 25

"We must analyze these cases and ask what the lis mota was in each of
them. If the pronouncement of the Court on jus sanguinis was on the lis
mota, the pronouncement would be a decision constituting doctrine under
the rule of stare decisis. But if the pronouncement was irrelevant to the lis
mota, the pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the Court to look
closely into these cases.

"Aside from the fact that such a pronouncement would have no textual
foundation in the Constitution, it would also violate the equal protection
clause of the Constitution not once but twice. First, it would make an
illegitimate distinction between a legitimate child and an illegitimate child,
and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino
mother.

First, Morano vs. Vivo. The case was not about an illegitimate child of a
Filipino father. It was about a stepson of a Filipino, a stepson who was the
child of a Chinese mother and a Chinese father.The issue was whether the
stepson followed the naturalization of the stepfather. Nothing about jus
sanguinis there. The stepson did not have the blood of the naturalized
stepfather.

The doctrine on constitutionally allowable distinctions was established long


ago by People vs. Cayat. [47] I would grant that the distinction between
legitimate children and illegitimate children rests on real differences. x x
x But real differences alone do not justify invidious distinction. Real
differences may justify distinction for one purpose but not for another
purpose.

Second, Chiongbian vs. de Leon. This case was not about the illegitimate
son of a Filipino father. It was about a legitimate son of a father who had
become Filipino by election to public office before the 1935 Constitution
pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was
illegitimate here.

x x x What is the relevance of legitimacy or illegitimacy to elective public


service? What possible state interest can there be for disqualifying an
illegitimate child from becoming a public officer. It was not the fault of the
child that his parents had illicit liaison. Why deprive the child of the fullness
of political rights for no fault of his own? To disqualify an illegitimate child
from holding an important public office is to punish him for the indiscretion
of his parents. There is neither justice nor rationality in that. And if there is
neither justice nor rationality in the distinction, then the distinction
transgresses the equal protection clause and must be reprobated.

Third, Serra vs. Republic. The case was not about the illegitimate son of a
Filipino father. Serra was an illegitimate child of a Chinese father and a
Filipino mother. The issue was whether one who was already a Filipino
because of his mother who still needed to be naturalized. There is nothing
there about invidious jus sanguinis.
Finally, Paa vs. Chan.[46] This is a more complicated case. The case was
about the citizenship of Quintin Chan who was the son of Leoncio
Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son
of a Chinese father and a Filipino mother. Quintin therefore argued that he
got his citizenship from Leoncio, his father. But the Supreme Court said that
there was no valid proof that Leoncio was in fact the son of a Filipina
mother. The Court therefore concluded that Leoncio was not Filipino. If
Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was
not only not a natural-born Filipino but was not even a Filipino.
The Court should have stopped there. But instead it followed with an obiter
dictum. The Court said obiter that even if Leoncio, Quintin's father, were
Filipino, Quintin would not be Filipino because Quintin was illegitimate. This
statement about Quintin, based on a contrary to fact assumption, was
absolutely unnecessary for the case. x x x It was obiter dictum, pure and
simple, simply repeating the obiter dictum in Morano vs. Vivo.
xxxxxxxxx

The other amici curiae, Mr. Justice Vicente Mendoza (a former member
of this Court), Professor Ruben Balane and Dean Martin Magallona, at
bottom, have expressed similar views. The thesis of petitioner,
unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the
citizenship of its mother, it did so for the benefit the child. It was to ensure
a Filipino nationality for the illegitimate child of an alien father in line with
the assumption that the mother had custody, would exercise parental
authority and had the duty to support her illegitimate child. It was to help
the child, not to prejudice or discriminate against him.
The fact of the matter perhaps the most significant consideration is
that the 1935 Constitution, the fundamental law prevailing on the day,
month and year of birth of respondent FPJ, can never be more explicit than
it is. Providing neither conditions nor distinctions, the Constitution states
that among the citizens of the Philippines are those whose fathers are
citizens of the Philippines. There utterly is no cogent justification to
prescribe conditions or distinctions where there clearly are none provided.

CONFLICTS | JAN14| 26

In Sum
(1) The Court, in the exercise of its power of judicial review, possesses
jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in
relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No.
161824 assails the resolution of the COMELEC for alleged grave abuse of
discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running for
the position of President in the 10th May 2004 national elections on the
contention that FPJ has committed material representation in his certificate
of candidacy by representing himself to be a natural-born citizen of the
Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity,
the petitions in G. R. No. 161434 and No. 161634 both having been directly
elevated to this Court in the latters capacity as the only tribunal to resolve a
presidential
and
vice-presidential
election
contest
under
the
Constitution. Evidently, the primary jurisdiction of the Court can directly be
invoked only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of
discretion has been committed by the COMELEC, it is necessary to take on
the matter of whether or not respondent FPJ is a natural-born citizen,
which, in turn, depended on whether or not the father of respondent, Allan
F. Poe, would have himself been a Filipino citizen and, in the affirmative,
whether or not the alleged illegitimacy of respondent prevents him from
taking after the Filipino citizenship of his putative father. Any conclusion on
the Filipino citizenship of Lorenzo Pou could only be drawn from the
presumption that having died in 1954 at 84 years old, Lorenzo would have
been born sometime in the year 1870, when the Philippines was under
Spanish rule, and that San Carlos, Pangasinan, his place of residence upon
his death in 1954, in the absence of any other evidence, could have well
been his place of residence before death, such that Lorenzo Pou would have
benefited from the en masse Filipinization that the Philippine Bill had
effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would
thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen first light,
confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively
that respondent FPJ is a natural-born citizen of the Philippines, the evidence
on hand still would preponderate in his favor enough to hold that he cannot
be held guilty of having made a material misrepresentation in his certificate
of candidacy in violation of Section 78, in relation to Section 74, of the
Omnibus Election Code. Petitioner has utterly failed to substantiate his case
before the Court, notwithstanding the ample opportunity given to the

parties to present their position and evidence, and to prove whether or not
there has been material misrepresentation, which, as so ruled
in Romualdez-Marcos vs. COMELEC,[48]must not only be material, but also
deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B.
Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan
Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier,
Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez,
Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G.
R.
No.
161824,
entitled
Victorino
X.
Fornier,
Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley
Poe, also known as Fernando Poe, Jr., for failure to show grave abuse of
discretion on the part of respondent Commission on Elections in dismissing
the petition in SPA No. 04-003.
No Costs.

SO ORDERED.

CONFLICTS | JAN14| 27

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned


as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo
Militar (Edgardo) on 3 September 1968. Parental care and custody over
petitioner was passed on by Edgardo to his relatives, Emiliano Militar
(Emiliano) and his wife. Three days after, 6 September 1968, Emiliano
reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1
G.R. No. 221697
MARY
GRACE
NATIVIDAD
S.
POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY
GRACE
NATIVIDAD
S.
POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to
Rule 65 of the Rules of Court with extremely urgent application for an ex
parte issuance of temporary restraining order/status quo ante order and/or
writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001
(DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and
( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been
issued without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
The Facts

When petitioner was five (5) years old, celebrity spouses Ronald Allan
Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan
Roces) filed a petition for her adoption with the Municipal Trial Court (MTC)
of San Juan City. On 13 May 1974, the trial court granted their petition and
ordered that petitioner's name be changed from "Mary Grace Natividad
Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although
necessary notations were made by OCR-Iloilo on petitioner's foundling
certificate reflecting the court decreed adoption, 2 the petitioner's adoptive
mother discovered only sometime in the second half of 2005 that the
lawyer who handled petitioner's adoption failed to secure from the OCRIloilo a new Certificate of Live Birth indicating petitioner's new name and
the name of her adoptive parents. 3 Without delay, petitioner's mother
executed an affidavit attesting to the lawyer's omission which she
submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new
Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe. 4
Having reached the age of eighteen (18) years in 1986, petitioner
registered as a voter with the local COMELEC Office in San Juan City. On 13
December 1986, she received her COMELEC Voter's Identification Card for
Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport
No. F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on
5 April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616. 7
Initially, the petitioner enrolled and pursued a degree in Development
Studies at the University of the Philippines 8but she opted to continue her
studies abroad and left for the United States of America (U.S.) in 1988.
Petitioner graduated in 1991 from Boston College in Chestnuts Hill,
Massachusetts where she earned her Bachelor of Arts degree in Political
Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario
de San Jose Parish in San Juan City. 10 Desirous of being with her husband

CONFLICTS | JAN14| 28

who was then based in the U.S., the couple flew back to the U.S. two days
after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992. 12 Her two daughters Hanna MacKenzie (Hanna)
and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998
and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American
citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December
2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest
daughter Anika. She returned to the U.S. with her two daughters on 8 July
2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe
blow to her entire family. In her earnest desire to be with her grieving
mother, the petitioner and her husband decided to move and reside
permanently in the Philippines sometime in the first quarter of 2005. 19 The
couple began preparing for their resettlement including notification of their
children's schools that they will be transferring to Philippine schools for the
next semester;20 coordination with property movers for the relocation of
their household goods, furniture and cars from the U.S. to the
Philippines;21 and inquiry with Philippine authorities as to the proper
procedure to be followed in bringing their pet dog into the country. 22 As
early as 2004, the petitioner already quit her job in the U.S. 23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed 25 while her
husband was forced to stay in the U.S. to complete pending projects as well
as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she
and her husband purchased a condominium unit with a parking slot at One

Wilson Place Condominium in San Juan City in the second half of


2005.27 The corresponding Condominium Certificates of Title covering the
unit and parking slot were issued by the Register of Deeds of San Juan City
to petitioner and her husband on 20 February 2006. 28 Meanwhile, her
children of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.29 She travelled back to the Philippines on 11 March 2006. 30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006. 32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a major Philippine company
in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot
in Corinthian Hills, Quezon City where they built their family home 34 and to
this day, is where the couple and their children have been residing. 35 A
Transfer Certificate of Title covering said property was issued in the couple's
name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
Retention and Re-acquisition Act of 2003. 36 Under the same Act, she filed
with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006. 37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared
that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines. 38 Consequently, the BI
issued Identification Certificates (ICs) in petitioner's name and in the names
of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan
City on 31 August 2006.40 She also secured from the DFA a new Philippine
Passport bearing the No. XX4731999. 41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport No. EC0588861 by the
DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation

CONFLICTS | JAN14| 29

of American Citizenship" before a notary public in Pasig City on 20 October


2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said
affidavit to the BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American passport. 48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of
the United States."49 On that day, she accomplished a sworn questionnaire
before the U.S. Vice Consul wherein she stated that she had taken her oath
as MTRCB Chairperson on 21 October 2010 with the intent, among others,
of relinquishing her American citizenship. 50 In the same questionnaire, the
petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a
"Certificate of Loss of Nationality of the United States" effective 21 October
2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered
"6 years and 6 months" to the question "Period of residence in the
Philippines before May 13, 2013." 53 Petitioner obtained the highest number
of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport
No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a naturalborn citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from
24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary
public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were the
subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which was

docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed
material misrepresentation when she stated in her COC that she is a
natural-born Filipino citizen and that she is a resident of the Philippines for
at least ten (10) years and eleven (11) months up to the day before the 9
May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was a
foundling.62 Elamparo claimed that international law does not confer
natural-born status and Filipino citizenship on foundlings. 63 Following this
line of reasoning, petitioner is not qualified to apply for reacquisition of
Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino
citizen to begin with.64 Even assuming arguendo that petitioner was a
natural-born Filipino, she is deemed to have lost that status when she
became a naturalized American citizen. 65 According to Elamparo, naturalborn citizenship must be continuous from birth. 66
On the matter of petitioner's residency, Elamparo pointed out that petitioner
was bound by the sworn declaration she made in her 2012 COC for Senator
wherein she indicated that she had resided in the country for only six ( 6)
years and six ( 6) months as of May 2013 Elections. Elamparo likewise
insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief
that she failed to reestablish her domicile in the Philippines. 67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition
as it was actually a petition for quo warranto which could only be
filed if Grace Poe wins in the Presidential elections, and that the
Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not
contain allegations which, if hypothetically admitted, would make
false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;

CONFLICTS | JAN14| 30

(3) she did not make any material misrepresentation in the COC
regarding her citizenship and residency qualifications for:

and Local Elections, contained material representations which are false.


The fallo of the aforesaid Resolution reads:

a. the 1934 Constitutional Convention deliberations show


that foundlings were considered citizens;

WHEREFORE, in view of all the foregoing considerations, the instant


Petition to Deny Due Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of Candidacy for President of
the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares
is hereby CANCELLED.69

b. foundlings are presumed under international law to have


been born of citizens of the place where they are found;
c. she reacquired her natural-born Philippine citizenship
under the provisions of R.A. No. 9225;
d. she executed a sworn renunciation of her American
citizenship prior to the filing of her COC for President in the
May 9, 2016 Elections and that the same is in full force and
effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not
possess natural-born status;
f. residence is a matter of evidence and that she
reestablished her domicile in the Philippines as early as May
24, 2005;
g. she could reestablish residence even before she
reacquired natural-born citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012
COC for Senator was an honest mistake, not binding and
should give way to evidence on her true date of
reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the
sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the country's
next leader.68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running for
the President of the Republic of the Philippines in the 9 May 2016 National

Motion for Reconsideration of the 1 December 2015 Resolution was filed by


petitioner which the COMELEC En Banc resolved in its 23 December 2015
Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules
of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that
petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot
be considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status. 73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in
the 193 5 Constitution is indicative of the framers' intent to exclude
them.74 Therefore, the burden lies on petitioner to prove that she is a
natural-born citizen.75
Neither can petitioner seek refuge under international conventions or
treaties to support her claim that foundlings have a nationality.76 According
to Tatad, international conventions and treaties are not self-executory and
that local legislations are necessary in order to give effect to treaty
obligations assumed by the Philippines. 77 He also stressed that there is no
standard state practice that automatically confers natural-born status to
foundlings.78

CONFLICTS | JAN14| 31

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail


of the option to reacquire Philippine citizenship under R.A. No. 9225
because it only applies to former natural-born citizens and petitioner was
not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement. 80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she
renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to
abandon her U.S. domicile as evinced by the fact that her husband stayed
thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of
petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her
repatriation under R.A. No. 9225 did not bestow upon her the status of a
natural-born citizen.83 He advanced the view that former natural-born
citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as naturalborn citizens.84
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6) years
and six (6) months prior to the 13 May 2013 Elections operates against her.
Valdez rejected petitioner's claim that she could have validly reestablished
her domicile in the Philippines prior to her reacquisition of Philippine
citizenship. In effect, his position was that petitioner did not meet the ten
(10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President should
be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her
COC when she stated that she is a legal resident of the Philippines for ten
(10) years and eleven (11) months by 9 May 2016. 86 Contreras contended
that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to
reacquire Philippine citizenship was approved by the BI. 87 He asserted that
petitioner's physical presence in the country before 18 July 2006 could not
be valid evidence of reacquisition of her Philippine domicile since she was
then living here as an American citizen and as such, she was governed by
the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a


cause of action. His petition did not invoke grounds proper for a
disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.89 Instead, Tatad completely relied on the alleged
lack of residency and natural-born status of petitioner which are not among
the recognized grounds for the disqualification of a candidate to an elective
office.90
Second, the petitions filed against her are basically petitions for quo
warranto as they focus on establishing her ineligibility for the
Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is
on the respondents.93 Otherwise stated, she has a presumption in her favor
that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to
a nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen
of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC. 97 She
believed that all these acts reinforced her position that she is a natural-born
citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by
her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family
home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of
choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile are
complied with.100 She reasoned out that there was no requirement that
renunciation of foreign citizenship is a prerequisite for the acquisition of a
new domicile of choice.101

CONFLICTS | JAN14| 32

Eighth, she reiterated that the period appearing in the residency portion of
her COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First
Division ruled that petitioner is not a natural-born citizen, that she failed to
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she
has been a resident of the Philippines for a period of ten (10) years and
eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive
portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy
of MARY
GRACE
NATIVIDAD
SONORA
POELLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives
from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two
petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter,
oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares
and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad

Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)


entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc,
upholding the 1 December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc,
upholding the 11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the
9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that
she made in the certificate a false material representation. The exclusivity
of the ground should hedge in the discretion of the COMELEC and restrain it
from going into the issue of the qualifications of the candidate for the
position, if, as in this case, such issue is yet undecided or undetermined by
the proper authority. The COMELEC cannot itself, in the same cancellation
case, decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
(1) Enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative,
referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts
of limited jurisdiction.

CONFLICTS | JAN14| 33

Decisions, final orders, or rulings of the Commission on


election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission
on Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere
to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in
national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be
prescribed by law.
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer


or employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
The tribunals which have jurisdiction over the question of the qualifications
of the President, the Vice-President, Senators and the Members of the
House of Representatives was made clear by the Constitution. There is no
such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections, 104 which was affirmatively cited in the En
Banc decision in Fermin v. COMELEC105 is our guide. The citation
in Fermin reads:

CONFLICTS | JAN14| 34

Apparently realizing the lack of an authorized proceeding for declaring the


ineligibility of candidates, the COMELEC amended its rules on February 15,
1993 so as to provide in Rule 25 1, the following:
Grounds for disqualification. - Any candidate who does not
possess all the qualifications of a candidate as provided for
by the Constitution or by existing law or who commits any
act declared by law to be grounds for disqualification may
be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the creation
of a cause of action which is a substantive matter which the COMELEC, in
the exercise of its rule-making power under Art. IX, A, 6 of the
Constitution, cannot do it. It is noteworthy that the Constitution withholds
from the COMELEC even the power to decide cases involving the right to
vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. [Art. IX, C, 2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the
law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on
grounds specified in 12 and 68 of the Omnibus Election Code and in 40
of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the
race either from the start or during its progress. "Ineligibility," on the other
hand, refers to the lack of the qualifications prescribed in the Constitution
or the statutes for holding public office and the purpose of the proceedings
for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate
or continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in 2 of the Law does not imply that he
does not suffer from any of [the] disqualifications provided in 4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the opinion
is in its statement that "the lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized


proceeding for determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected,
there is no necessity for determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission
of prohibited acts) is a prejudicial question which should be determined lest
he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his
proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino
v. COMELEC) where the determination of Aquino's residence was still
pending in the COMELEC even after the elections of May 8, 1995. This is
contrary to the summary character proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of
candidacy a ministerial duty of the COMELEC and its officers. The law is
satisfied if candidates state in their certificates of candidacy that they are
eligible for the position which they seek to fill, leaving the determination of
their qualifications to be made after the election and only in the event they
are elected. Only in cases involving charges of false representations made
in certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases
in elections for President, Vice President, Senators and members of the
House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve
the prerogatives of the House of Representatives Electoral Tribunal and the
other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice
President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC Resolution
No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993
version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by

CONFLICTS | JAN14| 35

existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is
declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny
to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as
a Nuisance Candidate, or a combination thereof, shall be summarily
dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by
the Commission to be suffering from any disqualification provided by law or
the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23
are flipsides of one to the other. Both do not allow, are not authorizations,
are not vestment of jurisdiction, for the COMELEC to determine the
qualification of a candidate. The facts of qualification must beforehand be
established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by
executive order or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution,"
neither can the certificate of candidacy be cancelled or denied due course
on grounds of false representations regarding his or her qualifications,
without a prior authoritative finding that he or she is not qualified, such
prior authority being the necessary measure by which the falsity of the
representation can be found. The only exception that can be conceded are
self-evident facts of unquestioned or unquestionable veracity and judicial
confessions. Such are, anyway, bases equivalent to prior decisions against
which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false representations
regarding the candidate's citizenship and residence, forced the COMELEC to

rule essentially that since foundlings 108 are not mentioned in the
enumeration of citizens under the 1935 Constitution, 109 they then cannot be
citizens. As the COMELEC stated in oral arguments, when petitioner
admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen
when "it is certain that such relationship is indemonstrable," proceeded to
say that "she now has the burden to present evidence to prove her natural
filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of the
Philippines has a whole chapter on Paternity and Filiation. 110 That said, there
is more than sufficient evider1ce that petitioner has Filipino parents and is
therefore a natural-born Filipino. Parenthetically, the burden of proof was on
private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents
were aliens. Her admission that she is a foundling did not shift the burden
to her because such status did not exclude the possibility that her parents
were Filipinos, especially as in this case where there is a high probability, if
not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities
are unknown, but whether such parents are Filipinos. Under Section 4, Rule
128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation
to the fact in issue as to induce belief in its existence or no-existence.
Evidence on collateral matters shall not be allowed, except when it tends in
any reasonable degree to establish the probability of improbability of the
fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners
born in the Philippines was 15,986 while the total number of Filipinos born
in the country was 10,558,278. The statistical probability that any child
born in the Philippines in that decade is natural-born Filipino
was 99.83%. For her part, petitioner presented census statistics for Iloilo
Province for 1960 and 1970, also from the PSA. In 1960, there were
962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the
population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and
5,304 foreigners, or 99.55%. Also presented were figures for the child
producing ages (15-49). In 1960, there were 230,528 female Filipinos as

CONFLICTS | JAN14| 36

against 730 female foreigners or 99.68%. In the same year, there were
210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there
were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against
only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted, during the oral arguments,
that at the time petitioner was found in 1968, the majority of the population
in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are
the fact that she was abandoned as an infant in a Roman Catholic Church in
Iloilo City.1wphi1 She also has typical Filipino features: height, flat nasal
bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to
the ordinary course of nature and the ordinary habits of life. 113 All of the
foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines
is overwhelmingly Filipinos such that there would be more than a 99%
chance that a child born in the province would be a Filipino, would indicate
more than ample probability if not statistical certainty, that petitioner's
parents are Filipinos. That probability and the evidence on which it is based
are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible,
as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to
the Philippines so they can get pregnant and leave their newborn babies
behind. We do not face a situation where the probability is such that every
foundling would have a 50% chance of being a Filipino and a 50% chance of
being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone
born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
means that the statistical probability that any child born in the Philippines
on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers
for us, but I am confident that the statistical probability that a child born in
the Philippines would be a natural born Filipino will not be affected by
whether or not the parents are known. If at all, the likelihood that a
foundling would have a Filipino parent might even be higher than 99.9%.
Filipinos abandon their children out of poverty or perhaps, shame. We do
not imagine foreigners abandoning their children here in the Philippines
thinking those infants would have better economic opportunities or
believing that this country is a tropical paradise suitable for raising
abandoned children. I certainly doubt whether a foreign couple has ever
considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless
just because there may be a theoretical chance that one among the
thousands of these foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and unjust. It just doesn't
make any sense. Given the statistical certainty - 99.9% - that any child
born in the Philippines would be a natural born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings.
Your Honor, constitutional interpretation and the use of common sense are
not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While
the 1935 Constitution's enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers. In Nitafan
v. Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent
of the framers of the organic law and of the people adopting it
should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of
the purpose of the framers and of the people in the adoption of the
Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation
offered by the framers.115

CONFLICTS | JAN14| 37

As pointed out by petitioner as well as the Solicitor General, the


deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. The following
exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a Filipino
mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?
Sr.
Rafols:
To all kinds of illegitimate children. It also includes natural children of
unknown parentage, natural or illegitimate children of unknown parents.
Sr.
Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish territory are considered
Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child
of unknown parentage born in the Philippines is deemed to be Filipino, and
there is no need ...
Sr.
Rafols:
There is a need, because we are relating the conditions that are [required]
to be Filipino.
Sr.
Montinola:
But that is the interpretation of the law, therefore, there is no [more] need
for amendment.
Sr.
Rafols:
The
amendment
should
read
thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized
by one, or the children of unknown parentage."
Sr.
Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.

Sr.
Rafols:
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr.
Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child.
Their parentage is not unknown and I think those of overseas Filipino
mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr.
Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr.
Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international
law the principle that children or people born in a country of unknown
parents are citizens in this nation is recognized, and it is not necessary to
include a provision on the subject exhaustively. 116
Though the Rafols amendment was not carried out, it was not because
there was any objection to the notion that persons of "unknown parentage"
are not citizens but only because their number was not enough to merit
specific mention. Such was the account, 117 cited by petitioner, of delegate
and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an
amendment to include as Filipino citizens the illegitimate children
with a foreign father of a mother who was a citizen of the
Philippines, and also foundlings; but this amendment was defeated
primarily because the Convention believed that the cases, being too
few to warrant the inclusion of a provision in the Constitution to
apply to them, should be governed by statutory legislation.
Moreover, it was believed that the rules of international law were
already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the

CONFLICTS | JAN14| 38

nationality of the place where they were found, thereby making


unnecessary the inclusion in the Constitution of the proposed
amendment.
This explanation was likewise the position of the Solicitor General during the
16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the constitutional silence is by
saying that it was the view of Montinola and Roxas which prevailed that
there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were
legally correct. Framers of a constitution can constitutionalize rules based
on assumptions that are imperfect or even wrong. They can even overturn
existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are
already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear: it
is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1
(3) of the 1935 Constitution. This inclusive policy is carried over into the
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as
he was paraphrased by Chief Justice Fernando: the constitution is not
silently silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the
records of the 1935, 1973 and 1987 Constitutions "for an express intention
to deny foundlings the status of Filipinos. The burden is on those who wish
to use the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this
across the board marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic right
to equal protection of the laws. All exhort the State to render social justice.
Of special consideration are several provisions in the present charter:
Article II, Section 11 which provides that the "State values the dignity of

every human person and guarantees full respect for human rights," Article
XIII, Section 1 which mandates Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all the people
to human dignity, reduce social, economic, and political inequalities x x x"
and Article XV, Section 3 which requires the State to defend the "right of
children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development." Certainly, these provisions
contradict an intent to discriminate against foundlings on account of their
unfortunate status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions,
legal capacity of persons are binding on citizens of the Philippines even
though living abroad." Adoption deals with status, and a Philippine adoption
court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis
v. Republic,119 a child left by an unidentified mother was sought to be
adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in
rem, which no court may entertain unless it has jurisdiction, not only over
the subject matter of the case and over the parties, but also over the
res, which is the personal status of Baby Rose as well as that of petitioners
herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over
the status of a natural person is determined by the latter's nationality.
Pursuant to this theory, we have jurisdiction over the status of Baby Rose,
she being a citizen of the Philippines, but not over the status of the
petitioners, who are foreigners. 120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other Purposes" (otherwise
known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 026-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children"
and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these laws
and the issuance of said certificate are acts to acquire or perfect Philippine
citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who

CONFLICTS | JAN14| 39

are citizens of the Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship." In the first place, "having
to perform an act" means that the act must be personally done by the
citizen. In this instance, the determination of foundling status is done not
by the child but by the authorities.121 Secondly, the object of the process is
the determination of the whereabouts of the parents, not the citizenship of
the child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the
1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic
law through a constitutional mechanism such as local legislation. 124 On the
other hand, generally accepted principles of international law, by virtue of
the incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. Generally accepted
principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized
by civilized nations.125 International customary rules are accepted as
binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law
requiring it.126 "General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on
principles which are "basic to legal systems generally," 127 such as "general
principles of equity, i.e., the general principles of fairness and justice," and
the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation." 128 These are the
same core principles which underlie the Philippine Constitution itself, as

embodied in the due process and equal protection clauses of the Bill of
Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by
this Court as part of the generally accepted principles of international law
and binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on
our country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right of every
child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.

CONFLICTS | JAN14| 40

The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it
cannot be accomplished by the application of our present naturalization
laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The first
is Article 14 of the 1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws under which a foundling is presumed to
have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall
be determined by the rules applicable in cases where the parentage is
known.
A foundling is, until the contrary is proved, presumed to have been born on
the territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of
the country where he is found, contained in Article 2 of the 1961 United
Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within
the territory of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the
1961 Convention on the Reduction of Statelessness does not mean that
their principles are not binding. While the Philippines is not a party to the
1930 Hague Convention, it is a signatory to the Universal Declaration on
Human Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the
1930 Hague Convention. Article 2 of the 1961 "United Nations Convention
on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of
the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines
had not signed or ratified the "International Convention for the Protection of
All Persons from Enforced Disappearance." Yet, we ruled that the
proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international

law." Razon v. Tagitis is likewise notable for declaring the ban as a


generally accepted principle of international law although the convention
had been ratified by only sixteen states and had not even come into force
and which needed the ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was content with the
practice of international and regional state organs, regional state practice in
Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada, 134 where only four countries had "either
ratified or acceded to"135 the 1966 "Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters" when
the case was decided in 2005. The Court also pointed out that that nine
member countries of the European Common Market had acceded to the
Judgments Convention. The Court also cited U.S. laws and jurisprudence on
recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that
recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not only
on international custom, but also on "general principles of law recognized
by civilized nations," as the phrase is understood in Article 38.1 paragraph
(c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems generally," 136 support the
notion that the right against enforced disappearances and the recognition of
foreign judgments, were correctly considered as "generally accepted
principles of international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and
South America, and Europe have passed legislation recognizing foundlings
as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments
pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a generally accepted
principle of international law to presume foundlings as having been born of
nationals of the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally
accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
8042 and this Court's Rules on Adoption, expressly refer to "Filipino
children." In all of them, foundlings are among the Filipino children who

CONFLICTS | JAN14| 41

could be adopted. Likewise, it has been pointed that the DFA issues
passports to foundlings. Passports are by law, issued only to citizens. This
shows that even the executive department, acting through the DFA,
considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the
1961 Convention on Statelessness is rational and reasonable and consistent
with the jus sanguinis regime in our Constitution. The presumption of
natural-born citizenship of foundlings stems from the presumption that their
parents are nationals of the Philippines. As the empirical data provided by
the PSA show, that presumption is at more than 99% and is a virtual
certainty.
In sum, all of the international law conventions and instruments on the
matter of nationality of foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune not of their own making.
We cannot be restrictive as to their application if we are a country which
calls itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court
that those treaties and conventions were drafted because the world
community is concerned that the situation of foundlings renders them
legally invisible. It would be tragically ironic if this Honorable Court ended
up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them secondclass citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under
the provisions of R.A. No. 9225 did not result in the reacquisition of naturalborn citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the
matter of repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET,
follows:

140

repatriation was explained as

Moreover, repatriation results in the recovery of the original nationality. This


means that a naturalized Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation process that restores one's
Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he
repatriation of the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit 144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he
will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural
citizens as implying "that natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth." R.A. No. 9225 was
obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that
natural-born citizenship may be reacquired even if it had been once lost. It
is not for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the phrase
"from birth" was clarified to mean at the time of birth: "A person who at the
time of his birth, is a citizen of a particular country, is a natural-born citizen
thereof." Neither is "repatriation" an act to "acquire or perfect" one's
citizenship. In Bengson III v. HRET, this Court pointed out that there are
only two types of citizens under the 1987 Constitution: natural-born citizen
and naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable
law for the reacquisition thereof. As respondent Cruz was not required by
law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all
the necessary qualifications to be elected as member of the House of
Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this
Court. And while we may always revisit a doctrine, a new rule reversing
standing doctrine cannot be retroactively applied. In Morales v. Court of

CONFLICTS | JAN14| 42

Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in
application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system
of the Philippines." This Court also said that "while the future may
ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as good law prior to its abandonment. Consequently, the
people's reliance thereupon should be respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that
petitioner committed a falsehood when she put in the spaces for "born to"
in her application for repatriation under R.A. No. 9225 the names of her
adoptive parents, and this misled the BI to presume that she was a naturalborn Filipino. It has been contended that the data required were the names
of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted.
One of the effects of adoption is "to sever all legal ties between the
biological parents and the adoptee, except when the biological parent is the
spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled
to an amended birth certificate "attesting to the fact that the adoptee is the
child of the adopter(s)" and which certificate "shall not bear any notation
that it is an amended issue." 150 That law also requires that "[a]ll records,
books, and papers relating to the adoption cases in the files of the court,
the Department [of Social Welfare and Development], or any other agency
or institution participating in the adoption proceedings shall be kept strictly
confidential."151 The law therefore allows petitioner to state that her
adoptive parents were her birth parents as that was what would be stated
in her birth certificate anyway. And given the policy of strict confidentiality
of adoption records, petitioner was not obligated to disclose that she was an
adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or
not petitioner committed false material representation when she stated in
her COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In
answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11
months" which according to her pleadings in these cases corresponds to a
beginning date of 25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire a
new domicile: 1. Residence or bodily presence in a new locality; 2. an
intention to remain there; and 3. an intention to abandon the old
domicile.152 To successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and establishing
a new one and definite acts which correspond with the purpose. In other
words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be voluntary;
and the residence at the place chosen for the new domicile must be
actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good.
These evidence include petitioner's former U.S. passport showing her arrival
on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006
with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools
starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot
issued in February 2006 and their corresponding tax declarations issued in
April 2006; receipts dated 23 February 2005 from the Salvation Army in the
U.S. acknowledging donation of items from petitioner's family; March 2006
e-mail to the U.S. Postal Service confirming request for change of address;
final statement from the First American Title Insurance Company showing
sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated
that she had been a Philippine resident since May 2005; affidavit from
Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005

CONFLICTS | JAN14| 43

and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the
spouses jointly decided to relocate to the Philippines in 2005 and that he
stayed behind in the U.S. only to finish some work and to sell the family
home).
The foregoing evidence were undisputed and the facts were even listed by
the COMELEC, particularly in its Resolution in the Tatad, Contreras and
Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had
been timely changed as of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi, but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all
the evidence presented by petitioner on the basis of the position that the
earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved
by the
BI. In this
regard,
COMELEC relied on Coquilla v.
COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157 During
the oral arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the stay of
an alien former Filipino cannot be counted until he/she obtains a permanent
resident visa or reacquires Philippine citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since petitioner was still an American
(without any resident visa) until her reacquisition of citizenship under R.A.
No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,159 the only evidence
presented was a community tax certificate secured by the candidate and his
declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence
prior to his reacquisition of Philippine citizenship. With the Court decreeing
that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his place of work
was abroad and that he only visited during his frequent vacations. In Reyes
v. COMELEC,162 the candidate was found to be an American citizen who had
not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship
issue. On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said
that "such fact alone is not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four


cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the evidence
of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence
(selling the house, taking the children from U.S. schools, getting quotes
from the freight company, notifying the U.S. Post Office of the
abandonment of their address in the U.S., donating excess items to the
Salvation Army, her husband resigning from U.S. employment right after
selling the U.S. house) and permanently relocate to the Philippines and
actually re-established her residence here on 24 May 2005 (securing T.I.N,
enrolling her children in Philippine schools, buying property here,
constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's
actual continuous stay in the Philippines over the years, it is clear that when
petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to
the Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to
the
country"164 in
line
with
the
government's
"reintegration
program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and
help him reintegrate into society, it would be an unduly harsh conclusion to
say in absolute terms that the balikbayan must leave after one year. That
visa-free period is obviously granted him to allow him to re-establish his life
and reintegrate himself into the community before he attends to the
necessary formal and legal requirements of repatriation. And that is exactly
what petitioner did - she reestablished life here by enrolling her children
and buying property while awaiting the return of her husband and then
applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been decided
by the Court. Petitioner's evidence of residence is unprecedented. There is
no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited

CONFLICTS | JAN14| 44

by the respondents that the Court intended to have its rulings there apply
to a situation where the facts are different. Surely, the issue of residence
has been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of
petitioner, the COMELEC ruled that petitioner's claim of residence of ten
(10) years and eleven (11) months by 9 May 2016 in her 2015 COC was
false because she put six ( 6) years and six ( 6) months as "period of
residence before May 13, 2013" in her 2012 COC for Senator. Thus,
according to the COMELEC, she started being a Philippine resident only in
November 2006. In doing so, the COMELEC automatically assumed as true
the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the
date required in the 2013 COC as the period of residence as of the day she
submitted that COC in 2012. She said that she reckoned residency from
April-May 2006 which was the period when the U.S. house was sold and her
husband returned to the Philippines. In that regard, she was advised by her
lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period
of residence before 13 May 2013) as inquiring about residence as of the
time she submitted the COC, is bolstered by the change which the
COMELEC itself introduced in the 2015 COC which is now "period of
residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge that
the first version was vague.
That petitioner could have reckoned residence from a date earlier than the
sale of her U.S. house and the return of her husband is plausible given the
evidence that she had returned a year before. Such evidence, to repeat,
would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as
a binding and conclusive admission against petitioner. It could be given in
evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence
made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period
of residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or not an
individual has satisfied the constitutions residency qualification
requirement." The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the
Philippines from 24 May 2005. Had the COMELEC done its duty, it would

have seen that the 2012 COC and the 2015 COC both correctly stated
the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not
because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under R.A.
No. 9225 in July 2006. However, it does not take away the fact that in
reality, petitioner had returned from the U.S. and was here to stay
permanently, on 24 May 2005. When she claimed to have been a resident
for ten (10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner's repatriation
in July 2006 under R.A. No. 9225, was an established fact to repeat, for
purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months
in the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately, also in
the press. Respondents have not disputed petitioner's evidence on this
point. From that time therefore when Rep. Tiangco discussed it in the
media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of
public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the
SET petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC when
she put in six ( 6) years and six ( 6) months as she misunderstood the
question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October 2015, she could not be
said to have been attempting to hide her erroneous statement in her 2012
COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:

CONFLICTS | JAN14| 45

Concededly, a candidate's disqualification to run for public office does not


necessarily constitute material misrepresentation which is the sole ground
for denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not
only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact
which would otherwise render a candidate ineligible. It must be made with
an intention to deceive the electorate as to one's qualifications to run for
public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually
ignored a good number of evidenced dates all of which can evince animus
manendi to the Philippines and animus non revertedi to the United States of
America. The veracity of the events of coming and staying home was as
much as dismissed as inconsequential, the focus having been fixed at the
petitioner's "sworn declaration in her COC for Senator" which the COMELEC
said "amounts to a declaration and therefore an admission that her
residence in the Philippines only commence sometime in November 2006";
such that "based on this declaration, [petitioner] fails to meet the residency
requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of
the person that determines residence for purposes of compliance with the
constitutional requirement of residency for election as President. It ignores
the easily researched matter that cases on questions of residency have
been decided favorably for the candidate on the basis of facts of residence
far less in number, weight and substance than that presented by
petitioner.169 It ignores, above all else, what we consider as a primary
reason why petitioner cannot be bound by her declaration in her COC for
Senator which declaration was not even considered by the SET as an issue
against her eligibility for Senator. When petitioner made the declaration in
her COC for Senator that she has been a resident for a period of six (6)
years and six (6) months counted up to the 13 May 2013 Elections, she
naturally had as reference the residency requirements for election as
Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the
declaration for Senator was made, petitioner did not have as yet any
intention to vie for the Presidency in 2016 and that the general public was
never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different
from that of a senatorial candidacy. There are facts of residence other than
that which was mentioned in the COC for Senator. Such other facts of
residence have never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
husband however stayed in the USA to finish pending projects and arrange
the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough
to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family
lived in Unit 7F until the construction of their family home in Corinthian Hills
was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that
her former lawyer who handled [petitioner's] adoption in 1974 failed to
secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live
Birth indicating [petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to
supervise the disposal of some of the family's remaining household
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.
In late March 2006, [petitioner's] husband informed the United States
Postal Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a
Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in
Corinthian Hills, where they eventually built their family home. 170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention
to let the case fall under the exclusive ground of false representation, to
consider no other date than that mentioned by petitioner in her COC for
Senator.
All put together, in the matter of the citizenship and residence of petitioner
for her candidacy as President of the Republic, the questioned Resolutions
of the COMELEC in Division and En Banc are, one and all, deadly diseased
with grave abuse of discretion from root to fruits.

CONFLICTS | JAN14| 46

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


1. dated 1 December 2015 rendered through the COMELEC Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating
that:
[T]he Certificate of Candidacy for President of the Republic of the
Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division,
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner,
vs.
Mary
Grace
Natividad
Sonora
Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA
No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the
elective position of President of the Republic of the Philippines in connection
with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The
Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate
for President in the National and Local Elections of 9 May 2016.
SO ORDERED.

CONFLICTS | JAN14| 47

In regard to the first assignment of error, the evidence adduced during the
trial of the case shows:

G.R. No. L-30241

December 29, 1928

GREGORIO
vs.
NORBERTO
GURAY,
NORBERTO GURAY, appelllee.

NUVAL, petitioner-appellant,
ET

That on May 11, 1928, and within the period fixed by section 437 of the
Administrative Code, as amended by Act No. 3387, Gregorio Nuval filed, in
civil case No. 1442 of the Court of First Instance of La Union, in his dual
capacity as a voter duly qualified and registered in the election list of the
municipality of Luna and as a duly registered candidate for the office of
municipal president of said municipality, a petition against Norberto Guray
asking for the exclusion of his name from the election list of said
municipality, not being a qualified voter of said municipality sine he had not
resided therein for six months as required by section 431 of the said
Administrative Code.

AL., respondents.

Mabanag and Primicias, Gibbs and McDonough, and Mariano Alisangco for
appellant.
Sison and Siguion and Franciscco Ortega for appellee.

VILLA-REAL, J.:
This appeal was taken by the petitioner Gregorio Nuval from the judgment
of the Court of First Instance of La Union, upholding the defense of res
judicata and dismissing the quo warranto proceedings instituted by the said
Gregorio Nuval against Norbeto Guray and others, with costs against the
petitioner.
In support of his appeal, the appellant assign the following alleged errors as
committed by the trial court in its judgment, to wit:
1. The lower court erred in holding that the judgment rendered
upon Gregorio Nuval's petition for the cancellation of Norbeto
Guray's name on the election list of Luna is conclude and
constitutes res judiata in the present case.
2. The trial court erred in not holding that Norbeto Guray at the
time of his election, was ineligible for the office of the residence in
said municipality.
3. The lower court erred in not finding in its judgment that the
petitioner is entitled to hold the office in question.

Proceedings were had upon the petition in accordance with sections 437
and 438 of the same Code, as amended by Act No. 3387, and Judge E.
Araneta Diaz, rendered judgment dismissing it because, in his opinion,
Norberto Guray was a bona fide resident of the municipality of Luna from
Janury 1, 1927. As that order was not appealable, Norberto Guray's name
remained in the election list of the municipality of Luna.
The general election having been held on June 5, 1928, Norbeto Guray was
elected to the office of municipal president of Luna by a plurality of votes,
Gregorio Nuval obtaining second place. On June 7, 1928, the municipal
council of Luna, acting as the municipal, Norberto Guray, elected to the
office of municipal president of the said municipality of Luna for the next
triennium.
On June 18, 1928, Gregorio Nuval filed the present action of quo
warranto as provided in section 408 of the Administrative Code, as
amended by Act No. 3387, asking that Norberto Guray be declared
ineligible had a legal residence of one year previuos to the election as
required by section 2174 of the said Administrative Code in order to be
eligible to an elective municipal office.
The question to be solved under the first assignment of error is whether or
not the judgment rendered in the case of the petition for the exclusion of
Norberto Guray's name from the election list of Luna, is res judicata, so as
to prevent the institution and prosecution of an action in quo warranto,
which is now before us.
The procedure prescribed by section 437 of the Administrative Code, as
amended by Act. No. 3387 is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before
the justice of the peace of the capital or the circuit judge, in which case it

CONFLICTS | JAN14| 48

may be appealed to the judge of first instance, with whom said two lower
judges have concurrent jurisdiction.

With respect to the second assignment of error, the evidence establishes


the following facts:

The petition for execution was presented by Gregorio Nuval in his capacity
as qualified voter of the municipality of Luna, and as a duly registered
candidate for the office of the president of said municipality, against
Norberto Guray as a registered voter in the election list of said municipality.
The present proceedings of quo warranto was intreposed by Gregorio Nuval
in his capacity as a registered candidate voted for the office of municipal
president of Luna, against Norberto Guray, as an elected candidate for the
same office. Therefore, there is no identity of parties in the two cases, since
it is not enough that there be an identity of persons, but there must be an
identity of capacities in which said persons litigate. (Art. 1259 of the Civil
Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756,
par. 1165.)

Up to June 27, 1922, Norberto Guray had resided in the municipality of


Luna, his birthplace, where he had married and had held the office of
municipal treasurer. On that date he was appointed municipal treasurer of
Balaoan, Province of La Union. The rules of the provincial treasurer of La
Union, to which Norberto Guray was subject as such municipal treasurer,
require that municipality treasurers live continuously in the municipality
where they perform they official duties, in order to be able to give an
account of their acts as such treasurers at any time. In order to qualify and
be in a position to vote as an elector in Balaoan in the general election of
1925, Norberto Guray asked for the cancellation of his name in the election
lists of Luna, where he had voted in the general elections of 1922, alleging
as a ground therefore the following: "On the ground of transfer of any
residence which took place on the 28th day of June, 1922. My correct and
new address is Poblacion, Balaoan, La Union;" and in order to be registered
in the subscribed affidavit Exhibit F-1 before the board of election
inspectors of precinct No. 1 of Balaoan, by virtue of which he was registered
as an elector of the said precinct, having made use of the right of suffrage
in said municipality in the general elections of 1925. In his cedula
certificates issued by himself as municipal treasurer of Balaoan from the
year 1923 to 1928, included, he made it appear that his residence was the
residential district of Balaoan. In the year 1926, his wife and children who,
up to that time, had lived in the municipality of Balaoan, went back to live
in the town of Luna in the house of his wife's parents, due to the high cost
of living in that municipality. Norberto Guray used to go home to Luna in
the afternoons after office hours, and there he passed the nights with his
family. His children studied in the public school of Luna. In January, 1927,
he commenced the construction of a house of strong materials in Luna,
which has not yet been completed, and neither be nor his family has lived
in it. On February 1, 1928, Norberto Guray applied for and obtained
vacation leave to be spent in Luna, and on the 16th of the same month he
filed his resignation by telegraph, which was accepted on the same day,
also by telegraph. Nothwithstanding that he was already provided with a
cedula by himself as municipal treasurer of Balaoan on January 31, 1928,
declaring him resident of said town, he obtained another cedula from the
municipality of Luna on February 20, 1928, which was dated January 15,
1928, in which it is presented that he resided in the barrio of Victoria,
municipality of Luna, Province of La Union. On February 23, 1928, Norberto
Guray applied for and obtained the cancellation of his name in the election
list of the municipality of Balaoan, and on April 14, 1928, he applied for
registration as a voter in Luna, alleging that he had been residing in said
municipality for thirty years. For this purpose he made of the cedula
certificate antedated.

In said case for the petition for the exclusion, the object of the litigation, or
the litigious matter was the conclusion of Norberto Guray as a voter from
the election list of the municipality of Luna, while in the present quo
warranto proceeding, the object of the litigation, or the litigious matter in
his exclusion or expulsion from the office to which he has been elected.
Neither does there exist, then, any identity in the object of the litigation, or
the litigious matter.
In said case of the petition for exclusion, the cause of action was that
Norberto Guray had not the six months' legal residence in the municipality
of Luna to be a qualified voter thereof, while in the present proceedings
of quo warranto, the case of this action is that Norberto Guray has not the
one year's legal residence required for the eligibility to the office of
municipal president of Luna. Neither does there exist, therefore, identity of
causes of action.
In order that res judicata may exist the following are necessary: (a)
Identity of parties; (b) identity of things; and (c) identity of issues (Aquino
vs. Director of Lands, 39 Phil., 850). And as in the case of the petition for
exclusion and in the present quo warranto proceeding, as there is no
identity either of parties, or of things or litigious matter, or of issues or
causes of action, there is no res judicata.1awphi1.net
For the above considerations, the trial court erred in holding that the
judgment rendered in the case on the petition of Gregorio Nuval asking for
the cancellation of Norberto Guray's name in the election list of Luna is
conclusive and constitutes res judicata in the present case.

CONFLICTS | JAN14| 49

In view of the facts just related, the question arises whether or not
Norberto Guray had the legal residence of one year immediately prior to the
general elections of June 5, 1928, in order to be eligible to the office of
municipal president of Luna, Province of La Union.
There is no question but that when Norberto Guray accepted and assumed
the office of municipal treasurer of Balaoan, La Union, he transferred his
residence from the municipality of Luna to that of Balaoan.
The only question to determine refers to the date when he once more
established his residence in the municipality of Luna.
It is an established rule that "where a voter abandons his residence in a
state and acquires one in another state, he cannot again vote in the state of
his former residence until he has qualified by a new period of residence"
(20 Corpus Juris, p. 71, par. 28). "The term 'residence' as so used is
synonymous with 'domicile,' which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." (People vs. Bender, 144 N. Y. S., 145.)
Since Norberto Guray abandoned his first residence in the municipality of
Luna and acquired another in Balaoan, in order to vote and be a candidate
in the municipality of Luna, he needed to reacquire residence in the latter
municipality for the length of time prescribed by the law, and for such
purpose, he needed not only the intention to do so, but his personal
presence in said municipality.
By reason of his office as municipal treasurer of Balaoan and on account of
the rules of the provincial treasurer of La Union, under whose jurisdiction
was such municipality, Norberto Guray had to reside and in fact resided in
said municipality until the 6th of February, 1928 when he filed his
resignation from his office, which was accepted on the same date. The fact
that his family moved to the municipality of Luna in the year 1926 in order
to live there in view of the high cost of living in balaoan; the fact that his
children studied in the public shool of said town; the fact that on afternoons
after hours he went home to the municipality of Luna and there passed the
night with his family, are not in themselves alone sufficient to show that
from said year he had transfered his residence to said municipality, since
his wife and children lived with his father-in-law, in the latter's house that
only in the month of January, 1927, did he begin the construction of a
house of strong materials, which is not yet completed, nor occupied by
himself or his family, His aftrenoon tips to Luna, according to his own
explanation given to the provincial treasurer, were made for purpose of
visiting his sick father. His own act in recording in his cedula certificates for
the years 1927 and 1928 issued by himself in his favor as municipal
treasurer of Balaoan, that his place of residene was that municipality, and in

taking out a new cedula in the municipality of Luna of February 20, 1928,
and having the date of its issuance surreptitiuosly put back to January 15
1928, show that until the date of his resignation he did not consider himself
as a resident of the municipality of Luna. The fact that his wife and children
lived in Luna not in his own house but in that of his wife's father since the
year 1926, cannot be looked upon as a change of residence, since a change
of residence requires an actual and deliberate abandonment of the former
(20 Corpus Juris, p. 71) and one cannot have two legal residences at the
same time.
The present case is different from that of Doctor Apacible cited by the
appellee in his brief. Doctor Apacible never had abandoned his legal
residence in the Province of Batangas, nothwithstanding that he had been
living with his family in the City of Manila, taking out his cedula certificates
here, but he never exercised the right of suffrage here. Norberto Guray
abandoned his legal residencce in the municipality of Luna, transferring it to
the municipality of Balaoan by reason and an account of the requirements
of the rules of the provincial treasurer of La Union, under whose jurisdiction
is said municipality, exercising his right of suffrage in the latter.1awphi1.net
For the foregoing considerations, we are of opinion and so hold in fact and
in law Norberto Guray only abandoned his legal residence in the
Municipality of Balaoan, and began to acquire another in the municipality of
Luna from Febraury 16, 1928, when he filed his resignation from the office
of municipal treasurer of Balaoan which he had been holding, and which
resignation was accepted; and on being elected municipal president of Luna
in the general elections of June 5, 1928, he had not reacquired the legal
residence necessary to be validly elected to said office.
By virtue whereof, the election of respondent-appellee Norberto Guray to
the office of municipal president of Luna is hereby held to be unlawful and
quashed and, in consequence, he has no right to take possession of said
office, petitioner Gregorio Nuval being the one legally elected to said office
with a right to take possession thereof, having secured second place in the
election. With costs against the respondent. So ordered.
Avancea, C. J., Ostrand,
Villamor, J., dissents.

Johns

and

Romualdez,

RULING ON THE MOTION FOR RECONSIDERATION


February 1, 1929
VILLA-REAL, J.:

JJ.,

concur.

CONFLICTS | JAN14| 50

This is a motion praying for the reasons given that the judgment rendered
in this case on December 29, 1928 be reconsidered, and another rendered
affirming the judgment appealed from.
In regard to the grounds of the motion with reference to the defence of res
judicata, as the movant does not adduce any new argument in support
thereof, and inasmuch as this court has already discussed question at
length, we find no sufficient reason to grant the motion on said grounds.
As to the other grounds touching this court's holding that Gregorio Nuval is
the one who has been legally elected to the office of municipal president of
Luna, La Union, and entitled to take possession thereof, having received
second place, we consider them meritorious, for the reason that 408 of the
Election Law, providing the remedy in case a person not eligible should be
elected to a provincial or municipal office, does not authorize that it be
declared who has been legally elected, thus differing from section 479 of
the law, which contains such an authorization, and for the reason,
furthermore, that section 477 of the said law provides that only those who
have obtained a plurality of votes, and have presented their certificates of
candidacy may be certified as elected to municipal offices. Elective offices
are by nature different from the appointive offices. The occupation of the
first depends on the will of the elector, while that of the second depends on
the will of the authority providing for it. In quo warranto proceedings
referring to offices filled by election, what is to be determined is the
eligibility of the candidate elect, while in quo warranto proceedings referring
to offices filled by appointment, what is determined is the legality of the
appointment. In the first case when the person elected is ineligible, the
court cannot declare that the candidate occupying the second place has
been elected, even if he were eligible, since the law only authorizes a
declaration of election in favor of the person who has obtained a plurality of
votes, and has presented his certificate of candidacy. In the second case,
the court determines who has been legally appointed and can and ought to
declare who is entitled to occupy the office.
In view of the foregoing, we are of opinion that the judgment rendered in
this case on December 29, 1928, should be, and is hereby, amended,
eliminating from the dispositive part thereof, the holding that Gregorio
Nuval is the one who has been legally elected, so as to read as follows:
By virtue whereof, the election of respondent-appellee Norberto
Guray to the office of Municipal president of Luna, is hereby
declared unlawful and quashed and, consequently, that he has no
right to take possession of said office, with costs against said
respondent.
So ordered.

CONFLICTS | JAN14| 51

follows:jgc:chanrobles.com.ph
"I. That Arthur Graydon Moody died in Calcutta, India, on February 18,
1931.

[G.R.

No.

43314.

December

19,

1935.]

A. L. VELILLA, administrator of the estate of Arthur Graydon


Moody, Plaintiff-Appellant, v. JUAN POSADAS, JR., Collector of
Internal
Revenue, Defendant-Appellee.
Ohnick
Solicitor-General

&

Opisso
Hilado

for Appellant.
for Appellee.

SYLLABUS
1. INHERITANCE TAX; DOMICILE OF TAXPAYER. To effect the
abandonment of ones domicile, there must be a deliberate and provable
choice of a new domicile, coupled with actual residence in the place chosen,
with a declared or provable intent that it should be ones fixed and
permanent place of abode, ones home. There is a complete dearth of
evidence in the record that M ever established a new domicile in a foreign
country.
2. INHERITANCE AND INCOME TAXES. As Ms legal domicile at the time
of his death was the Philippine Islands and his estate had its situs here, the
inheritance and income taxes here involved were lawfully collected.

DECISION

BUTTE, J.:

This is an appeal from a judgment of the Court of First Instance of Manila in


an action to recover from the defendant-appellee as Collector of Internal
Revenue the sum of P77,018,39 as inheritance taxes and P13,001.41 as
income taxes assessed against the estate of Arthur G. Moody, deceased.
The parties submitted to the court an agreed statement of facts as

"II. That Arthur Graydon Moody executed in the Philippine Islands a will,
certified copy of which marked Exhibit AA is hereto attached and made a
part hereof, by virtue of which will, he bequeathed all his property to his
only sister, Ida M. Palmer, who then was and still is a citizen and resident of
the
State
of
New
York,
United
States
of
America.
"III. That on February 24, 1931, a petition for appointment of special
administrator of the estate of the deceased Arthur Graydon Moody was filed
by W. Maxwell Thebaut with the Court of First Instance of Manila, the same
being designated as case No. 39113 of said court. Copy of said petition
marked Exhibit BB is hereto attached and made a part hereof.
"IV. That subsequently or on April 10, 1931, a petition was filed by Ida M.
Palmer, asking for the probate of said will of the deceased Arthur Graydon
Moody, and the same was, after hearing, duly probated by the court in a
decree dated May 5, 1931. Copies of the petition and of the decree marked
Exhibits CC and DD, respectively, are hereto attached and made parts
hereof.
"V. That on July 14, 1931, Ida M. Palmer was declared to be the sole and
only heiress of the deceased Arthur Graydon Moody by virtue of an order
issued by the court in said case No. 39113, copy of which marked Exhibit
EE is hereto attached and made a part hereof; and that during the hearing
for the declaration of heirs, Ida M. Palmer presented as evidence a letter
dated February 28, 1925, and addressed to her by Arthur Graydon Moody,
copy of which marked Exhibit FF is hereto attached and made a part
hereof.
"VI. That the property left by the late Arthur Graydon Moody consisted
principally of bonds and shares of stock of corporations organized under the
laws of the Philippine Islands, bank deposits and other personal properties,
as are more fully shown in the inventory of April 17, 1931, filed by the
special administrator with the court in said case No. 39113, certified copy of
which inventory marked Exhibit GG is hereto attached and made a part
hereof. This stipulation does not, however, cover the respective values of
said
properties
for
the
purpose
of
the
inheritance
tax.
"VII. That on July 22, 1931, the Bureau of Internal Revenue prepared for
the estate of the late Arthur Graydon Moody an inheritance tax return,
certified copy of which marked Exhibit HH is hereto attached and made a
part
hereof.

CONFLICTS | JAN14| 52

"VIII. That on September 9, 1931, an income tax return for the fractional
period from January 1, 1931 to June 30, 1931, certified copy of which
marked Exhibit II is hereto attached and made a part hereof, was also
prepared by the Bureau of Internal Revenue for the estate of the said
deceased
Arthur
Graydon
Moody.
"IX. That on December 3, 1931, the committee on claims and appraisals
filed with the court its report, certified copy of which marked Exhibit KK is
hereto
attached
and
made
a
part
hereof.
"X. That on September 15, 1931, the Bureau of Internal Revenue addressed
to the attorney for the administratrix Ida M. Palmer a letter, copy of which
marked Exhibit LL is hereto attached and made a part hereof.
"XI. That on October 15, 1931, the attorney for Ida M. Palmer answered the
letter of the Collector of Internal Revenue referred to in the preceding
paragraph. Said answer marked Exhibit MM is hereto attached and made a
part
hereof.
"XII. That on November 4, 1931, and in answer to the letter mentioned in
the preceding paragraph, the Bureau of Internal Revenue addressed to the
attorney for Ida M. Palmer another letter, copy of which marked Exhibit NN
is
hereto
attached
and
made
a
part
hereof.
"XIII. That on December 7, 1931, the attorney for Ida M. Palmer again
replied in a letter, marked Exhibit OO, hereto attached and made a part
hereof.
"XIV. That the estate of the late Arthur Graydon Moody paid under protest
the sum of P50,000 on July 22, 1931, and the other sum of P40,019,75 on
January 19, 1932, making a total of P90,019,75, of which P77,018.39
covers the assessment for inheritance tax and the sum of P13,001.41
covers the assessment for income tax against said estate.
"XV. That on January 21, 1932, the Collector of Internal Revenue overruled
the protest made by Ida M. Palmer through her attorney.
"XVI. The parties reserve their right to introduce additional evidence at the
hearing
of
the
present
case.
"Manila,

August

15,

1933."cralaw

virtua1aw

library

In addition to the foregoing agreed statement of facts, both parties


introduced oral and documentary evidence from which it appears that
Arthur G. Moody, an American citizen, came to the Philippine Islands in
1902 or 1903 and engaged actively in business in these Islands up to the
time of his death in Calcutta, India, on February 18, 1931. He had no

business elsewhere and at the time of his death left an estate consisting
principally of bonds and shares of stock of corporations organized under the
laws of the Philippine Islands, bank deposits and other intangibles and
personal property valued by the commissioners of appraisal and claims at
P609,767.58 and by the Collector of Internal Revenue for the purposes of
inheritance tax at P653,657.47. All of said property at the time of his death
was located and had its situs within the Philippine Islands. So far as this
record shows, he left no property of any kind located anywhere else. In his
will, Exhibit AA, executed without date in Manila in accordance with the
formalities of the Philippine law, in which he bequeathed all his property to
his
sister,
Ida
M.
Palmer,
he
stated:jgc:chanrobles.com.ph
"I, Arthur G. Moody, a citizen of the United States of America, residing in
the Philippine Islands, hereby publish and declare the following as my last
Will
and
Testament
.
.
.
."cralaw
virtua1aw
library
The substance of the plaintiffs cause of action is stated in paragraph 7 of
his
complaint
as
follows:jgc:chanrobles.com.ph
"That there is no valid law or regulation of the Government of the Philippine
Islands under or by virtue of which any inheritance tax may be levied,
assessed or collected upon transfer, by death and succession, of intangible
personal properties of a person not domiciled in the Philippine Islands, and
the levy and collection by defendant of inheritance tax computed upon the
value of said stocks, bonds, credits and other intangible properties as
aforesaid constituted and constitutes the taking and deprivation of property
without due process of law contrary to the Bill of Rights and organic law of
the
Philippine
Islands."cralaw
virtua1aw
library
Section 1536 of the Revised Administrative Code (as amended) provides as
follows:jgc:chanrobles.com.ph
"SEC. 1536. Conditions and rate of taxation. Every transmission by virtue
of inheritance, devise, bequest, gift mortis causa or advance in anticipation
of inheritance, devise, or bequest of real property located in the Philippine
Islands and real rights in such property; of any franchise which must be
exercised in the Philippine Islands; of any shares, obligations, or bonds
issued by any corporation or sociedad anonima organized or constituted in
the Philippine Islands in accordance with its laws; of any shares or rights in
any partnership, business or industry established in the Philippine Islands or
of any personal property located in the Philippine Islands shall be subject to
the following tax:"
x

It is alleged in the complaint that at the time of his death, Arthur G. Moody

CONFLICTS | JAN14| 53

was a "non-resident of the Philippine Islands." The answer, besides the


general denial, sets up as a special defense that "Arthur G. Moody, now
deceased, was and prior to the date of his death, a resident in the City of
Manila, Philippine Islands, where he was engaged actively in business."
Issue was thus joined on the question: Where was the legal domicile of
Arthur
G.
Moody
at
the
time
of
his
death?
The Solicitor-General raises a preliminary objection to the consideration of
any evidence that Moodys domicile was elsewhere than in Manila at the
time of his death based on the proposition that as no such objection was
made before the Collector of Internal Revenue as one of the grounds of the
protest against the payment of the tax, this objection cannot be considered
in a suit against the Collector to recover the taxes paid under protest. He
relies upon the decision in the case of W. C. Tucker v. A. C. Alexander,
Collector (15 Fed. [2], 356). We call attention, however, to the fact that this
decision was reversed in 275 U. S., 232; 72 Law. ed., 256, and the case
remanded for trial on the merits on the ground that the requirement that
the action shall be based upon the same grounds, and only such, as were
presented in the protest had been waived by the collector. In the case
before us no copy of the taxpayers protest is included in the record and we
have no means of knowing its contents. We think, therefore, the
preliminary objection made on behalf of the appellee does not lie.
We proceed, therefore, to the consideration of the question on the merits as
to whether Arthur G. Moody was legally domiciled in the Philippine Islands
on the day of his death. Moody was never married and there is no doubt
that he had his legal domicile in the Philippine Islands from 1902 or 1903
forward during which time he accumulated a fortune from his business in
the Philippine Islands. He lived in the Elks Club in Manila for many years
and was living there up to the date he left Manila the latter part of
February, 1928, under the following circumstances: He was afflicted with
leprosy in an advanced stage and had been informed by Dr. Wade that he
would be reported to the Philippine authorities for confinement in the Culion
Leper Colony as required by the law. Distressed at the thought of being
thus segregated and in violation of his promise to Dr. Wade that he would
voluntarily go to Culion, he surreptitiously left the Islands the latter part of
February, 1928, under cover of night, on a freighter, without ticket,
passport or tax clearance certificate. The record does not show where
Moody was during the remainder of the year 1928. He lived with a friend in
Paris, France, during the months of March and April of the year 1929 where
he was receiving treatment for leprosy at the Pasteur Institute. The record
does not show where Moody was in the interval between April, 1929, and
November 26, 1930, on which latter date he wrote a letter, Exhibit B, to
Harry Wendt of Manila, offering to sell him his interest in the Camera
Supply Company, a Philippine corporation, in which Moody owned 599 out
of 603 shares. In this letter, among other things, he states: "Certainly Ill
never return there to live or enter business again." In this same letter he

says:jgc:chanrobles.com.ph
"I wish to know as soon as possible now (as to the purchase) for I have
very recently decided either to sell or put in a line of school or office
supplies . . . before I go to the necessary investments in placing any side
lines. I concluded to get your definite reply to this . . . I have given our New
York buying agent a conditional order not to be executed until March and
this will give you plenty of time . . . anything that kills a business is to have
it peddled around as being for sale and this is what I wish to avoid." He
wrote letters dated December 12, 1930, and January 3, 1931, along the
same line to Wendt. As Moody died of leprosy less than two months after
these letters were written, there can be no doubt that he would have been
immediately segregated in the Culion Leper Colony had he returned to the
Philippine Islands. He was, therefore, a fugitive, not from justice, but from
confinement in the Culion Leper Colony in accordance with the law of the
Philippine
Islands.
There is no statement of Moody, oral or written, in the record that he had
adopted a new domicile while he was absent from Manila. Though he was
physically present for some months in Calcutta prior to the date of his
death there, the appellant does not claim that Moody had a domicile there
although it was precisely from Calcutta that he wrote and cabled that he
wished to sell his business in Manila and that he had no intention to live
there again. Much less plausible, it seems to us, is the claim that he
established a legal domicile in Paris in February, 1929. The record contains
no writing whatever of Moody from Paris. There is no evidence as to where
in Paris he had any fixed abode that he intended to be his permanent home.
There is no evidence that he acquired any property in Paris or engaged in
any settled business on his own account there. There is no evidence of any
affirmative factors that prove the establishment of a legal domicile there.
The negative evidence that he told Cooley that he did not intend to return
to Manila does not prove that he had established a domicile in Paris. His
short stay of three months in Paris is entirely consistent with the view that
he was a transient in Paris for the purpose of receiving treatments at the
Pasteur Institute. The evidence in the record indicates clearly that Moodys
continued absence from his legal domicile in the Philippines was due to and
reasonably accounted for by the same motive that caused his surreptitious
departure, namely, to evade confinement in the Culion Leper Colony; for he
doubtless knew that on his return he would be immediately confined,
because his affliction became graver while he was absent than it was on the
day of his precipitous departure and he could not conceal himself in the
Philippines where he was well known, as he might do in foreign parts.
Our Civil Code (art. 40) defines the domicile of natural persons as "the
place of their usual residence." The record before us leaves no doubt in our
minds that the "usual residence" of this unfortunate man, whom appellant
describes as a "fugitive" and "outcast", was in Manila where he had lived

CONFLICTS | JAN14| 54

and toiled for more than a quarter of a century, rather than in any foreign
country he visited during his wanderings up to the date of his death in
Calcutta. To effect the abandonment of ones domicile, there must be a
deliberate and provable choice of a new domicile, coupled with actual
residence in the place chosen, with a declared or provable intent that it
should be ones fixed and permanent place of abode, ones home. There is a
complete dearth of evidence in the record that Moody ever established a
new
domicile
in
a
foreign
country.
The contention under the appellants third assignment of error that the
defendant collector illegally assessed an income tax of P13,001.41 against
the Moody estate is, in our opinion, untenable. The grounds for this
assessment, stated by the Collector of Internal Revenue in his letter, Exhibit
NN, appear to us to be sound. That the amount of P259,986.69 was
received by the estate of Moody as dividends declared out of surplus by the
Camera Supply Company is clearly established by the evidence. The
appellant contends that this assessment involves triple taxation: First,
because the corporation paid income tax on the same amount during the
years it was accumulated as surplus; second, that an inheritance tax on the
same amount was assessed against the estate, and third, the same amount
is assessed as income of the estate. As to the first, it appears from the
collectors assessment, Exhibit II, that the collector allowed the estate a
deduction of the normal income tax on said amount because it had already
been paid at the source by the Camera Supply Company. The only income
tax assessed against the estate was the additional tax or surtax that had
not been paid by the Camera Supply Company for which the estate, having
actually received the income, is clearly liable. As to the second alleged
double taxation, it is clear that the inheritance tax and the additional
income tax in question are entirely distinct. They are assessed under
different statutes and we are not convinced by the appellants argument
that the estate which received these dividends should not be held liable for
the payment of the income tax thereon because the operation was simply
the conversion of the surplus of the corporation into the property of the
individual stockholders. (Cf. U. S. v. Phellis, 257 U. S., 171, and Taft v.
Bowers, 278 U. S., 460.) Section 4 of Act No. 2833 as amended, which is
relied on by the appellant, plainly provides that the income from exempt
property
shall
be
included
as
income
subject
to
tax.
Finding no merit in any of the assignments of error of the appellant, we
affirm the judgment of the trial court, first, because the property in the
estate of Arthur G. Moody at the time of his death was located and had its
situs within the Philippine Islands and, second, because his legal domicile
up to the time of his death was within the Philippine Islands. Costs against
the Appellant.

CONFLICTS | JAN14| 55

G.R. No. L-22041

May 19, 1966

MELECIO
CLARINIO
UJANO, petitioner
and
vs.
REPUBLIC OF THE PHILIPPINES, oppositor and appellee.

appellant,

Tagayuna,
Arce
and
Tabaino
for
petitioner
and
appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor F. C.
Zaballero and Solicitor Camilo D. Quiason for oppositor and appellee.
BAUTISTA ANGELO, J.:
Petitioner seeks to reacquire his Philippine citizenship in a petition filed
before the Court of First Instance of Ilocos Sur.
Petitioner was born 66 years ago of Filipino parents in Magsingal Ilocos Sur.
He is married to Maxima O. Ujano with whom he has one son, Prospero,
who is now of legal age. He left the Philippines for the United States of
America in 1927 where after a residence of more than 20 years he acquired
American citizenship by naturalization. He returned to the Philippines on
November 10, 1960 to which he was admitted merely for a temporary stay.
He owns an agricultural land and a residential house situated in Magsingal,
Ilocos Sur worth not less than P5,000.00. He receives a monthly pension of
$115.00 from the Social Security Administration of the United States of
America. He has no record of conviction and it is his intention to renounce
his allegiance to the U.S.A.1wph1.t
After hearing, the court a quo rendered decision denying the petition on the
ground that petitioner did not have the residence required by law six
months before he filed his petition for reacquisition of Philippine citizenship.
Hence the present appeal.
The court a quo, in denying the petition, made the following comment:
"One of the qualifications for reacquiring Philippine citizenship is that the
applicant 'shall have resided in the Philippines at least six months before he

applies for naturalization' [Section 3(1), Commonwealth Act No. 63]. This
'residence' requirement in cases of naturalization, has already been
interpreted to mean the actual or constructive permanent home otherwise
known as legal residence or domicile (Wilfredo Uytengsu vs. Republic of the
Philippines, 95 Phil. 890). A place in a country or state where he lives and
stays permanently, and to which he intends to return after a temporary
absence, no matter how long, is his domicile. In other words domicile is
characterized by animus manendi. So an alien who has been admitted into
this country as a temporary visitor, either for business or pleasure, or for
reasons of health, though actually present in this country cannot be said to
have established his domicile here because the period of his stay is only
temporary in nature and must leave when the purpose of his coming is
accomplished. In the present case, petitioner, who is presently a citizen of
the United States of America, was admitted into this country as a
temporary visitor, a status he has maintained at the time of the filing of the
present petition for reacquisition of Philippine citizenship and which
continues up to the present. Such being the case, he has not complied with
the specific requirement of law regarding six months residence before filing
his present petition."
We can hardly add to the foregoing comment of the court a quo. We find it
to be a correct interpretation [Section 3 (1) of Commonwealth Act No. 63]
which requires that before a person may reacquire his Philippine citizenship
he "shall have resided in the Philippines at least six months before he
applies for naturalization." The word "residence" used therein imports not
only an intention to reside in a fixed place but also personal presence
coupled with conduct indicative of such intention (Yen vs. Republic, L18885, January 31,1964; Nuval vs. Guray, 52 Phil. 645). Indeed, that term
cannot refer to the presence in this country of a person who has been
admitted only on the strength of a permit for temporary residence. In other
words, the term residence used in said Act should have the same
connotation as that used in Commonwealth Act No. 473, the Revised
Naturalization Law, even if in approving the law permitting the reacquisition
of Philippine citizenship our Congress has liberalized its requirement by
foregoing the qualifications and special disqualifications prescribed therein.
The only way by which petitioner can reacquire his lost Philippine citizenship
is by securing a quota for permanent residence so that he may come within
the purview of the residence requirement of Commonwealth Act No. 63.
Wherefore, the decision appealed from is affirmed. No costs.

CONFLICTS | JAN14| 56

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for
review of the decision dated June 21, 1989, of the Court of Appeals in CAG.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo
Caasi, a rival candidate for the position of municipal mayor of Bolinao,
Pangasinan, also to disqualify Merito Miguel on account of his being a green
card holder.

G.R. No. 88831 November 8, 1990


MATEO
CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO
vs.
THE
COMMISSION
MIGUEL, respondents.

CASCANTE petitioner,
ON

ELECTIONS

and

MERITO

C.

Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.


Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J.:
These two cases were consolidated because they have the same objective;
the disqualification under Section 68 of the Omnibus Election Code of the
private respondent, Merito Miguel for the position of municipal mayor of
Bolinao, Pangasinan, to which he was elected in the local elections of
January 18, 1988, on the ground that he is a green card holder, hence, a
permanent resident of the United States of America, not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision dated
January 13, 1988 of the COMELEC First Division, dismissing the three (3)
petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No.
87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification
of Merito C. Miguel filed prior to the local elections on January 18, 1988.

In his answer to both petitions, Miguel admitted that he holds a green card
issued to him by the US Immigration Service, but he denied that he is a
permanent resident of the United States. He allegedly obtained the green
card for convenience in order that he may freely enter the United States for
his periodic medical examination and to visit his children there. He alleged
that he is a permanent resident of Bolinao, Pangasinan, that he voted in all
previous elections, including the plebiscite on February 2,1987 for the
ratification of the 1987 Constitution, and the congressional elections on May
18,1987.
After hearing the consolidated petitions before it, the COMELEC with the
exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on
the ground that:
The possession of a green card by the respondent (Miguel)
does not sufficiently establish that he has abandoned his
residence in the Philippines. On the contrary, inspite (sic) of
his green card, Respondent has sufficiently indicated his
intention to continuously reside in Bolinao as shown by his
having voted in successive elections in said municipality. As
the respondent meets the basic requirements of citizenship
and residence for candidates to elective local officials (sic)
as provided for in Section 42 of the Local Government Code,
there is no legal obstacle to his candidacy for mayor of
Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an
immigrant of a foreign country and respondent having
admitted that he is a green card holder, it is incumbent
upon him, under Section 68 of the Omnibus Election Code,
to prove that he "has waived his status as a permanent
resident or immigrant" to be qualified to run for elected
office. This respondent has not done. (p. 13, Rollo, G.R. No.
84508.)

CONFLICTS | JAN14| 57

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito
Miguel, respondents," the petitioner prays for a review of the decision dated
June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C.
Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing
the decision of the Regional Trial Court which denied Miguel's motion to
dismiss the petition for quo warranto filed by Caasi. The Court of Appeals
ordered the regional trial court to dismiss and desist from further
proceeding in the quo warranto case. The Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case
questioning the qualification of the petitioner as resident of
the Philippines, after the COMELEC has ruled that the
petitioner meets the very basic requirements of citizenship
and residence for candidates to elective local officials (sic)
and that there is no legal obstacles (sic) for the candidacy
of the petitioner, considering that decisions of the Regional
Trial Courts on quo warranto cases under the Election Code
are appealable to the COMELEC. (p. 22, Rollo, G.R. No.
88831.)
These two cases pose the twin issues of: (1) whether or not a green card is
proof that the holder is a permanent resident of the United States, and (2)
whether respondent Miguel had waived his status as a permanent resident
of or immigrant to the U.S.A. prior to the local elections on January 18,
1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and
this Constitution allegiance at all times, and any public
officer or employee who seeks to change his citizenship or
acquire the status of an immigrant of another
country during his tenure shall be dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of
the Philippines (B.P. Blg. 881) provides:
SEC. 68. Disqualifications ... Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in
the election laws. (Sec. 25, 1971, EC).

In view of current rumor that a good number of elective and appointive


public officials in the present administration of President Corazon C. Aquino
are holders of green cards in foreign countries, their effect on the holders'
right to hold elective public office in the Philippines is a question that
excites much interest in the outcome of this case.
In the case of Merito Miguel, the Court deems it significant that in the
"Application for Immigrant Visa and Alien Registration" (Optional Form No.
230, Department of State) which Miguel filled up in his own handwriting and
submitted to the US Embassy in Manila before his departure for the United
States in 1984, Miguel's answer to Question No. 21 therein regarding his
"Length of intended stay (if permanently, so state)," Miguel's answer
was, "Permanently."
On its face, the green card that was subsequently issued by the United
States Department of Justice and Immigration and Registration Service to
the respondent Merito C. Miguel identifies him in clear bold letters as a
RESIDENT ALIEN. On the back of the card, the upper portion, the following
information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled
to reside permanently and work in the
United States." (Annex A pp. 189-190, Rollo
of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United States in
1984 constituted an abandonment of his domicile and residence in the
Philippines. For he did not go to the United States merely to visit his
children or his doctor there; he entered the limited States with the intention
to have there permanently as evidenced by his application for an
immigrant's (not a visitor's or tourist's) visa. Based on that application of
his, he was issued by the U.S. Government the requisite green card or
authority to reside there permanently.
Immigration is the removing into one place from another;
the act of immigrating the entering into a country with the
intention of residing in it.
An immigrant is a person who removes into a country for
the purpose of permanent residence. As shown infra 84,
however, statutes sometimes give a broader meaning to the
term "immigrant." (3 CJS 674.)

CONFLICTS | JAN14| 58

As a resident alien in the U.S., Miguel owes temporary and local allegiance
to the U.S., the country in which he resides (3 CJS 527). This is in return
for the protection given to him during the period of his residence therein.
Aliens reading in the limited States, while they are
permitted to remain, are in general entitled to the
protection of the laws with regard to their rights of person
and property and to their civil and criminal responsibility.
In general, aliens residing in the United States, while they
are permitted to remain are entitled to the safeguards of
the constitution with regard to their rights of person and
property and to their civil and criminal responsibility. Thus
resident alien friends are entitled to the benefit of the
provision of the Fourteenth Amendment to the federal
constitution that no state shall deprive "any person" of life
liberty, or property without due process of law, or deny to
any person the equal protection of the law, and the
protection of this amendment extends to the right to earn a
livelihood by following the ordinary occupations of life. So
an alien is entitled to the protection of the provision of the
Fifth Amendment to the federal constitution that no person
shall be deprived of life, liberty, or property without due
process of law. (3 CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any
public officer or employee who seeks to change his citizenship or acquire
the status of an immigrant of another country during his tenure shall be
dealt with by law" is not applicable to Merito Miguel for he acquired the
status of an immigrant of the United States before he was elected to public
office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code (B.P.
Blg. 881), which provides:
xxx xxx xxx
Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any
elective office under this Code, unless such person has
waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws.'

Did Miguel, by returning to the Philippines in November 1987 and


presenting himself as a candidate for mayor of Bolinao in the January
18,1988 local elections, waive his status as a permanent resident or
immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the law requires
that the candidate who is a green card holder must have "waived his status
as a permanent resident or immigrant of a foreign country." Therefore, his
act of filing a certificate of candidacy for elective office in the Philippines,
did not of itself constitute a waiver of his status as a permanent resident or
immigrant of the United States. The waiver of his green card should be
manifested by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. Without such prior waiver, he
was "disqualified to run for any elective office" (Sec. 68, Omnibus Election
Code).
Respondent Merito Miguel admits that he holds a green card, which proves
that he is a permanent resident or immigrant it of the United States, but
the records of this case are starkly bare of proof that he had waived his
status as such before he ran for election as municipal mayor of Bolinao on
January 18, 1988. We, therefore, hold that he was disqualified to become a
candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to find.
Residence in the municipality where he intends to run for elective office for
at least one (1) year at the time of filing his certificate of candidacy, is one
of the qualifications that a candidate for elective public office must possess
(Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess
that qualification because he was a permanent resident of the United States
and he resided in Bolinao for a period of only three (3) months (not one
year) after his return to the Philippines in November 1987 and before he
ran for mayor of that municipality on January 18, 1988.
In banning from elective public office Philippine citizens who are permanent
residents or immigrants of a foreign country, the Omnibus Election Code
has laid down a clear policy of excluding from the right to hold elective
public office those Philippine citizens who possess dual loyalties and
allegiance. The law has reserved that privilege for its citizens who have cast
their lot with our country "without mental reservations or purpose of
evasion." The assumption is that those who are resident aliens of a foreign
country are incapable of such entire devotion to the interest and welfare of
their homeland for with one eye on their public duties here, they must keep
another eye on their duties under the laws of the foreign country of their
choice in order to preserve their status as permanent residents thereof.

CONFLICTS | JAN14| 59

Miguel insists that even though he applied for immigration and permanent
residence in the United States, he never really intended to live there
permanently, for all that he wanted was a green card to enable him to come
and go to the U.S. with ease. In other words, he would have this Court
believe that he applied for immigration to the U.S. under false pretenses;
that all this time he only had one foot in the United States but kept his
other foot in the Philippines. Even if that were true, this Court will not allow
itself to be a party to his duplicity by permitting him to benefit from it, and
giving him the best of both worlds so to speak.
Miguel's application for immigrant status and permanent residence in the
U.S. and his possession of a green card attesting to such status are
conclusive proof that he is a permanent resident of the U.S. despite his
occasional visits to the Philippines. The waiver of such immigrant status
should be as indubitable as his application for it. Absent clear evidence that
he made an irrevocable waiver of that status or that he surrendered his
green card to the appropriate U.S. authorities before he ran for mayor of
Bolinao in the local elections on January 18, 1988, our conclusion is that he
was disqualified to run for said public office, hence, his election thereto was
null and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals
in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531
respectively, are hereby set aside. The election of respondent Merito C.
Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs
against the said respondent.
SO ORDERED.

CONFLICTS | JAN14| 60

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same
position, filed a "Petition for Cancellation and Disqualification" 5 with the
Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year residency
requirement for candidates for the House of Representatives on the
evidence of declarations made by her in Voter Registration Record 94-No.
3349772 6and in her Certificate of Candidacy. He prayed that "an order be
issued declaring (petitioner) disqualified and canceling the certificate of
candidacy." 7

G.R. No. 119976 September 18, 1995


IMELDA
vs.
COMMISSION
ON
MONTEJO, respondents.

ROMUALDEZ-MARCOS, petitioner,
ELECTIONS

and

CIRILO

ROY

KAPUNAN, J.:
A constitutional provision should be construed as to give it effective
operation and suppress the mischief at which it is aimed. 1 The 1987
Constitution mandates that an aspirant for election to the House of
Representatives be "a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year
immediately preceding the election." 2 The mischief which this provision
reproduced verbatim from the 1973 Constitution seeks to prevent is the
possibility of a "stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter, from an elective
office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for
the position of Representative of the First District of Leyte with the
Provincial Election Supervisor on March 8, 1995, providing the following
information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:
__________ Years and seven Months.

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of


Candidacy, changing the entry "seven" months to "since childhood" in item
no. 8 of the amended certificate. 8 On the same day, the Provincial Election
Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned
Certificate of Candidacy on the ground that it is filed out of
time, the deadline for the filing of the same having already
lapsed on March 20, 1995. The Corrected/Amended
Certificate of Candidacy should have been filed on or before
the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95009 was likewise filed with the head office on the same day. In said Answer,
petitioner averred that the entry of the word "seven" in her original
Certificate
of
Candidacy
was
the
result
of
an
"honest
misinterpretation" 10 which she sought to rectify by adding the words "since
childhood" in her Amended/Corrected Certificate of Candidacy and that "she
has
always
maintained
Tacloban
City
as
her
domicile
or
residence. 11 Impugning respondent's motive in filing the petition seeking
her disqualification, she noted that:
When respondent (petitioner herein) announced that she
was intending to register as a voter in Tacloban City and run
for Congress in the First District of Leyte, petitioner
immediately opposed her intended registration by writing a
letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had
registered as a voter in Tolosa following completion of her
six month actual residence therein, petitioner filed a petition
with the COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such a

CONFLICTS | JAN14| 61

move up to the Supreme Court, his purpose being to


remove respondent as petitioner's opponent in the
congressional election in the First District. He also filed a
bill, along with other Leyte Congressmen, seeking the
creation of another legislative district to remove the town of
Tolosa out of the First District, to achieve his purpose.
However, such bill did not pass the Senate. Having failed on
such moves, petitioner now filed the instant petition for the
same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections
(COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding
private respondent's Petition for Disqualification in SPA 95-009 meritorious;
2) striking off petitioner's Corrected/Amended Certificate of Candidacy of
March 31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity of
amending the original Certificate of Candidacy after the lapse of the
deadline for filing certificates of candidacy, and petitioner's compliance with
the one year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer
that the printed word "Seven" (months) was a result of an
"honest misinterpretation or honest mistake" on her part
and, therefore, an amendment should subsequently be
allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not
residence of origin or domicile in the First Legislative
District, to which she could have responded "since
childhood." In an accompanying affidavit, she stated that
her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever
absent and which she has never abandoned. Furthermore,
in her memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has been a
resident of the First Legislative District of Leyte since
childhood, although she only became a resident of the
Municipality of Tolosa for seven months. She asserts that
she has always been a resident of Tacloban City, a
component of the First District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note that prior to her
registration in Tolosa, respondent announced that she would

be registering in Tacloban City so that she can be a


candidate for the District. However, this intention was
rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of
Tolosa and not Tacloban. She never disputed this claim and
instead implicitly acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for RESIDENCE. Since on
the basis of her Answer, she was quite aware of "residence
of origin" which she interprets to be Tacloban City, it is
curious why she did not cite Tacloban City in her Certificate
of Candidacy. Her explanation that she thought what was
asked was her actual and physical presence in Tolosa is not
easy to believe because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the Certificate
of Candidacy speaks clearly of "Residency in the
CONSTITUENCY where I seek to be elected immediately
preceding the election." Thus, the explanation of
respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest
mistake or misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an
amendment may be made, she cited the case of Alialy
v. COMELEC (2 SCRA 957). The reliance of respondent on
the case of Alialy is misplaced. The case only applies to the
"inconsequential deviations which cannot affect the result of
the election, or deviations from provisions intended
primarily to secure timely and orderly conduct of elections."
The Supreme Court in that case considered the amendment
only as a matter of form. But in the instant case, the
amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of
years of residence in the place where respondent seeks to
be elected is a substantial matter which determines her
qualification as a candidacy, specially those intended to
suppress, accurate material representation in the original
certificate which adversely affects the filer. To admit the
amended certificate is to condone the evils brought by the
shifting minds of manipulating candidate, of the detriment
of the integrity of the election.

CONFLICTS | JAN14| 62

Moreover, to allow respondent to change the seven (7)


month period of her residency in order to prolong it by
claiming it was "since childhood" is to allow an
untruthfulness to be committed before this Commission.
The arithmetical accuracy of the 7 months residency the
respondent indicated in her certificate of candidacy can be
gleaned from her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects that she is
a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the
time of the said registration (Annex A, Petition). Said
accuracy is further buttressed by her letter to the election
officer of San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be reregistered or transferred to Brgy. Olot, Tolosa, Leyte. The
dates of these three (3) different documents show the
respondent's consistent conviction that she has transferred
her residence to Olot, Tolosa, Leyte from Metro Manila only
for such limited period of time, starting in the last week of
August 1994 which on March 8, 1995 will only sum up to 7
months. The Commission, therefore, cannot be persuaded
to believe in the respondent's contention that it was an
error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate
of Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing
discussion, it is clear that respondent has not complied with
the one year residency requirement of the Constitution.
In election cases, the term "residence" has always been
considered as synonymous with "domicile" which imports
not only the intention to reside in a fixed place but also
personal presence in-that place, coupled with conduct
indicative of such intention. Domicile denotes a fixed
permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return.
(Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez
vs. RTC-Tacloban, 226 SCRA 408). In respondent's case,
when she returned to the Philippines in 1991, the residence
she chose was not Tacloban but San Juan, Metro Manila.

Thus, her animus revertendi is pointed to Metro Manila and


not Tacloban.
This Division is aware that her claim that she has been a
resident of the First District since childhood is nothing more
than to give her a color of qualification where she is
otherwise constitutionally disqualified. It cannot hold ground
in the face of the facts admitted by the respondent in her
affidavit. Except for the time that she studied and worked
for some years after graduation in Tacloban City, she
continuously lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San Juan, Metro
Manila where she was a registered voter. In 1965, she lived
in San Miguel, Manila where she was again a registered
voter. In 1978, she served as member of the Batasang
Pambansa as the representative of the City of Manila and
later on served as the Governor of Metro Manila. She could
not have served these positions if she had not been a
resident of the City of Manila. Furthermore, when she filed
her certificate of candidacy for the office of the President in
1992, she claimed to be a resident of San Juan, Metro
Manila. As a matter of fact on August 24, 1994, respondent
wrote a letter with the election officer of San Juan, Metro
Manila requesting for the cancellation of her registration in
the permanent list of voters that she may be re-registered
or transferred to Barangay Olot, Tolosa, Leyte. These facts
manifest that she could not have been a resident of
Tacloban City since childhood up to the time she filed her
certificate of candidacy because she became a resident of
many places, including Metro Manila. This debunks her
claim that prior to her residence in Tolosa, Leyte, she was a
resident of the First Legislative District of Leyte since
childhood.
In this case, respondent's conduct reveals her lack of
intention to make Tacloban her domicile. She registered as
a voter in different places and on several occasions declared
that she was a resident of Manila. Although she spent her
school days in Tacloban, she is considered to have
abandoned such place when she chose to stay and reside in
other different places. In the case of Romualdez
vs. RTC (226 SCRA 408) the Court explained how one
acquires a new domicile by choice. There must concur: (1)
residence or bodily presence in the new locality; (2)
intention to remain there; and (3) intention to abandon the
old domicile. In other words there must basically be animus
manendi with animus non revertendi. When respondent

CONFLICTS | JAN14| 63

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.

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's


proclamation should the results of the canvass show that she obtained the
highest number of votes in the congressional elections in the First District of
Leyte. On the same day, however, the COMELEC reversed itself and issued a
second Resolution directing that the proclamation of petitioner be
suspended in the event that she obtains the highest number of votes. 19

Pure intention to reside in that place is not sufficient, there


must likewise be conduct indicative of such intention.
Respondent's statements to the effect that she has always
intended to return to Tacloban, without the accompanying
conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any
evidence to show that her conduct, one year prior the
election, showed intention to reside in Tacloban. Worse,
what was evident was that prior to her residence in Tolosa,
she had been a resident of Manila.

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.

It is evident from these circumstances that she was not a


resident of the First District of Leyte "since childhood."
To further support the assertion that she could have not
been a resident of the First District of Leyte for more than
one year, petitioner correctly pointed out that on January
28, 1995 respondent registered as a voter at precinct No.
18-A of Olot, Tolosa, Leyte. In doing so, she placed in her
Voter Registration Record that she resided in the
municipality of Tolosa for a period of six months. This may
be inconsequential as argued by the respondent since it
refers only to her residence in Tolosa, Leyte. But her failure
to prove that she was a resident of the First District of Leyte
prior to her residence in Tolosa leaves nothing but a
convincing proof that she had been a resident of the district
for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the
COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the
April 24, 1995 Resolution declaring her not qualified to run for the position
of Member of the House of Representatives for the First Legislative District
of Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the
Commission RESOLVED to DENY it, no new substantial
matters having been raised therein to warrant reexamination of the resolution granting the petition for
disqualification. 18

On account of the Resolutions disqualifying petitioner from running for the


congressional seat of the First District of Leyte and the public respondent's
Resolution suspending her proclamation, petitioner comes to this court for
relief.
Petitioner raises several issues in her Original and Supplemental Petitions.
The principal issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election
purposes, of the First District of Leyte for a period of one
year at the time of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its
jurisdiction in disqualifying petitioner outside the period
mandated by the Omnibus Election Code for disqualification
cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral
Tribunal assumed exclusive jurisdiction over the question of
petitioner's qualifications after the May 8, 1995 elections.

CONFLICTS | JAN14| 64

I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a
startling confusion in the application of settled concepts of "Domicile" and
"Residence" in election law. While the COMELEC seems to be in agreement
with the general proposition that for the purposes of election law, residence
is synonymous with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual residence, a
conception not intended for the purpose of determining a candidate's
qualifications for election to the House of Representatives as required by
the 1987 Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our
jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong vs. Republic 20 this court took the
concept of domicile to mean an individual's "permanent home", "a place to
which, whenever absent for business or for pleasure, one intends to return,
and depends on facts and circumstances in the sense that they disclose
intent." 21 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
person's intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence. 22 It is thus,
quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless,
for various reasons, he successfully abandons his domicile in favor of
another domicile of choice. In Uytengsu vs. Republic, 23 we laid this
distinction quite clearly:
There is a difference between domicile and residence.
"Residence" is used to indicate a place of abode, whether
permanent or temporary; "domicile" denotes a fixed
permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile,
but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one

domicile for the same purpose at any time, but he may


have numerous places of residence. His place of residence
is generally his place of domicile, but it is not by any means
necessarily so since no length of residence without intention
of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by
the peculiar criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." 25 Larena vs. Teves 26 reiterated the same
doctrine in a case involving the qualifications of the respondent therein to
the post of Municipal President of Dumaguete, Negros Oriental. Faypon
vs. Quirino, 27 held that the absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where
one is elected does not constitute loss of residence. 28 So settled is the
concept (of domicile) in our election law that in these and other election law
cases, this Court has stated that the mere absence of an individual from his
permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for
certain elective positions have placed beyond doubt the principle that when
the Constitution speaks of "residence" in election law, it actually means only
"domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in
the 1971 Constitutional Convention, there was an attempt
to require residence in the place not less than one year
immediately preceding the day of the elections. So my
question is: What is the Committee's concept of residence
of a candidate for the legislature? Is it actual residence or is
it the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular
members of the National Assembly are concerned, the
proposed section merely provides, among others, "and a
resident thereof", that is, in the district for a period of not
less than one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution, the
interpretation given to it was domicile. 29

CONFLICTS | JAN14| 65

xxx xxx xxx


Mrs. Rosario Braid: The next question is on Section 7, page
2. I think Commissioner Nolledo has raised the same point
that "resident" has been interpreted at times as a matter of
intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at
the proper time to go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty
especially considering that a provision in the Constitution in
the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original
concept that it should be by domicile and not physical
residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court
concluded that the framers of the 1987 Constitution obviously adhered to
the definition given to the term residence in election law, regarding it as
having the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated by Article
VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned
entry in petitioner's Certificate of Candidacy stating her residence in the
First Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not and individual has
satisfied the constitution's residency qualification requirement. The said
statement becomes material only when there is or appears to be a
deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest
mistake in jotting the word "seven" in the space provided for the residency
qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which
prompted petitioner to write down the period of her actual stay in Tolosa,

Leyte instead of her period of residence in the First district, which was
"since childhood" in the space provided. These circumstances and events
are amply detailed in the COMELEC's Second Division's questioned
resolution, albeit with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban City to make
her eligible to run in the First District, private respondent Montejo opposed
the same, claiming that petitioner was a resident of Tolosa, not Tacloban
City. Petitioner then registered in her place of actual residence in the First
District, which is Tolosa, Leyte, a fact which she subsequently noted down
in her Certificate of Candidacy. A close look at said certificate would reveal
the possible source of the confusion: the entry for residence (Item No. 7) is
followed immediately by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa,
Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy.
Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE
ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of actual
residence in Leyte instead of petitioner's claimed domicile, it appears that
petitioner had jotted down her period of stay in her legal residence or
domicile. The juxtaposition of entries in Item 7 and Item 8 the first
requiring actual residence and the second requiring domicile coupled with
the circumstances surrounding petitioner's registration as a voter in Tolosa
obviously led to her writing down an unintended entry for which she could
be disqualified. This honest mistake should not, however, be allowed to
negate the fact of residence in the First District if such fact were established
by means more convincing than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly
be in the First District of Leyte, the Second Division of the COMELEC, in its
assailed Resolution of April 24,1995 maintains that "except for the time
when (petitioner) studied and worked for some years after graduation in
Tacloban City, she continuously lived in Manila." The Resolution additionally
cites certain facts as indicative of the fact that petitioner's domicile ought to
be any place where she lived in the last few decades except Tacloban,
Leyte. First, according to the Resolution, petitioner, in 1959, resided in San

CONFLICTS | JAN14| 66

Juan, Metro Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine presidency, she lived
in San Miguel, Manila where she as a voter. In 1978 and thereafter, she
served as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had not been a
resident of Metro Manila," the COMELEC stressed. Here is where the
confusion lies.
We have stated, many times in the past, that an individual does not lose his
domicile even if he has lived and maintained residences in different places.
Residence, it bears repeating, implies a factual relationship to a given place
for various purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a temporary or 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. In Larena
vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who
has his own house wherein he lives with his family in a
municipality without having ever had the intention of
abandoning it, and without having lived either alone or with
his family in another municipality, has his residence in the
former municipality, notwithstanding his having registered
as an elector in the other municipality in question and
having been a candidate for various insular and provincial
positions, stating every time that he is a resident of the
latter municipality.
More significantly, in Faypon vs. Quirino,

34

We explained that:

A citizen may leave the place of his birth to look for


"greener pastures," as the saying goes, to improve his lot,
and that, of course includes study in other places, practice
of his avocation, or engaging in business. When an election
is to be held, the citizen who left his birthplace to improve
his lot may desire to return to his native town to cast his
ballot but for professional or business reasons, or for any
other reason, he may not absent himself from his
professional or business activities; so there he registers
himself as voter as he has the qualifications to be one and
is not willing to give up or lose the opportunity to choose
the officials who are to run the government especially in

national elections. Despite such registration, the animus


revertendi to his home, to his domicile or residence of origin
has not forsaken him. This may be the explanation why the
registration of a voter in a place other than his residence of
origin has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds justification
in the natural desire and longing of every person to return
to his place of birth. This strong feeling of attachment to the
place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements
supporting its proposition that petitioner was ineligible to run for the
position of Representative of the First District of Leyte, the COMELEC was
obviously referring to petitioner's various places of (actual) residence, not
her domicile. In doing so, it not only ignored settled jurisprudence on
residence in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus Election Code (B.P.
881). 35
What is undeniable, however, are the following set of facts which establish
the fact of petitioner's domicile, which we lift verbatim from the COMELEC's
Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years
old, she established her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy Infant Academy in
Tacloban from 1938 to 1949 when she graduated from high
school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she
earned her degree in Education. Thereafter, she taught in
the Leyte Chinese School, still in Tacloban City. In 1952 she
went to Manila to work with her cousin, the late speaker
Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President
Ferdinand E. Marcos when he was still a congressman of
Ilocos Norte and registered there as a voter. When her
husband was elected Senator of the Republic in 1959, she
and her husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her husband was
elected President of the Republic of the Philippines, she
lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family
were abducted and kidnapped to Honolulu, Hawaii. In

CONFLICTS | JAN14| 67

November 1991, she came home to Manila. In 1992,


respondent ran for election as President of the Philippines
and filed her Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San Juan,
Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is
inescapable is that petitioner held various residences for different purposes
during the last four decades. None of these purposes unequivocally point to
an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover,
while petitioner was born in Manila, as a minor she naturally followed the
domicile of her parents. She grew up in Tacloban, reached her adulthood
there and eventually established residence in different parts of the country
for various reasons. Even during her husband's presidency, at the height of
the Marcos Regime's powers, petitioner kept her close ties to her domicile
of origin by establishing residences in Tacloban, celebrating her birthdays
and other important personal milestones in her home province, instituting
well-publicized projects for the benefit of her province and hometown, and
establishing a political power base where her siblings and close relatives
held positions of power either through the ballot or by appointment, always
with either her influence or consent. These well-publicized ties to her
domicile of origin are part of the history and lore of the quarter century of
Marcos power in our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the COMELEC did not know what
the rest of the country always knew: the fact of petitioner's domicile in
Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not
petitioner's domicile of origin because she did not live there until she was
eight years old. He avers that after leaving the place in 1952, she
"abandoned her residency (sic) therein for many years and . . . (could not)
re-establish her domicile in said place by merely expressing her intention to
live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired
is retained until a new one is gained, it follows that in spite of the fact of
petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin
by operation of law. This domicile was not established only when her father
brought his family back to Leyte contrary to private respondent's
averments.
Second, domicile of origin is not easily lost. To successfully effect a change
of domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of


residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires an
actual and deliberate abandonment, and one cannot have two legal
residences at the same time. 38 In the case at bench, the evidence adduced
by private respondent plainly lacks the degree of persuasiveness required to
convince this court that an abandonment of domicile of origin in favor of a
domicile of choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with an intent to
supplant the former domicile with one of her own choosing (domicilium
voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her
domicile of origin by operation of law as a result of her marriage to the late
President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and
"residence." 39 The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be inferred
from the use of the term "residence" in Article 110 of the Civil Code
because the Civil Code is one area where the two concepts are well
delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between
domicile and residence. Both terms imply relations between
a person and a place; but in residence, the relation is one of
fact while in domicile it is legal or juridical, independent of
the necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the
family. But the court may exempt the wife from living with
the husband if he should live abroad unless in the service of
the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of
domicile or residence as they affect the female spouse upon marriage yields
nothing which would suggest that the female spouse automatically loses her

CONFLICTS | JAN14| 68

domicile of origin in favor of the husband's choice of residence upon


marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of
1889 which states:
La mujer esta obligada a seguir a su marido donde quiera
que fije su residencia. Los Tribunales, sin embargo, podran
con justa causa eximirla de esta obligacion cuando el
marido transende su residencia a ultramar o' a pais
extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the
aforequoted article, which means wherever (the husband) wishes to
establish residence. This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a family home or
residence. Moreover, this interpretation is further strengthened by the
phrase "cuando el marido translade su residencia" in the same provision
which means, "when the husband shall transfer his residence," referring to
another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to
domicile
which
is
a
fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often as the
husband may deem fit to move his family, a circumstance more consistent
with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the
intention of the law to strengthen and unify the family, recognizing the fact
that the husband and the wife bring into the marriage different domiciles
(of origin). This difference could, for the sake of family unity, be reconciled
only by allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under
the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which obliges the husband
and wife to live together, thus:
Art. 109. The husband and wife are obligated to live
together, observe mutual respect and fidelity and render
mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the couple
has many residences (as in the case of the petitioner). If the husband has

to stay in or transfer to any one of their residences, the wife should


necessarily be with him in order that they may "live together." Hence, it is
illogical to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a situation where the wife is
left in the domicile while the husband, for professional or other reasons,
stays in one of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as
used with reference to particular matters is synonymous
with "domicile" is a question of some difficulty, and the
ultimate decision must be made from a consideration of the
purpose and intent with which the word is used. Sometimes
they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the
physical presence of a person in a place. A person can have
two or more residences, such as a country residence and a
city residence. Residence is acquired by living in place; on
the other hand, domicile can exist without actually living in
the place. The important thing for domicile is that, once
residence has been established in one place, there be an
intention to stay there permanently, even if residence is
also
established
in
some
other
place. 41
In fact, even the matter of a common residence between the husband and
the wife during the marriage is not an iron-clad principle; In cases applying
the Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations 42 where the spouses could
not be compelled to live with each other such that the wife is either allowed
to maintain a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being allowed
to opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a]
married woman may acquire a residence or domicile separate from that of
her husband during the existence of the marriage where the husband has
given cause for divorce." 44 Note that the Court allowed the wife either to
obtain new residence or to choose a new domicile in such an event. In
instances where the wife actually opts, .under the Civil Code, to live
separately from her husband either by taking new residence or reverting to
her domicile of origin, the Court has held that the wife could not be
compelled to live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo 45 the Court held that:

CONFLICTS | JAN14| 69

Upon examination of the authorities, we are convinced that


it is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and
render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to compel the
restitution of the purely personal right of consortium. At
best such an order can be effective for no other purpose
than to compel the spouses to live under the same roof;
and he experience of those countries where the courts of
justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical
Court entertained suits for the restitution of conjugal rights
at the instance of either husband or wife; and if the facts
were found to warrant it, that court would make a
mandatory decree, enforceable by process of contempt in
case of disobedience, requiring the delinquent party to live
with the other and render conjugal rights. Yet this practice
was sometimes criticized even by the judges who felt bound
to enforce such orders, and in Weldon v. Weldon (9 P.D.
52), decided in 1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of the High Court of
Justice, expressed his regret that the English law on the
subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the
decree for the restitution of conjugal rights in England,
could be obtained by the injured spouse, but could not be
enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial
Causes Act (1884) abolished the remedy of imprisonment;
though a decree for the restitution of conjugal rights can
still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only
one court, so far as we can discover, has ever attempted to
make a preemptory order requiring one of the spouses to
live with the other; and that was in a case where a wife was
ordered to follow and live with her husband, who had
changed his domicile to the City of New Orleans. The
decision referred to (Bahn v. Darby, 36 La. Ann., 70) was
based on a provision of the Civil Code of Louisiana similar to
article 56 of the Spanish Civil Code. It was decided many

years ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the
American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of
Spain appears to have affirmed an order of the Audiencia
Territorial de Valladolid requiring a wife to return to the
marital domicile, and in the alternative, upon her failure to
do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her
husband, as administrator of the ganancial property, all
income, rents, and interest which might accrue to her from
the property which she had brought to the marriage. (113
Jur. Civ., pp. 1, 11) But it does not appear that this order for
the return of the wife to the marital domicile was sanctioned
by any other penalty than the consequences that would be
visited upon her in respect to the use and control of her
property; and it does not appear that her disobedience to
that order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos,
in 1954, petitioner was obliged by virtue of Article 110 of the Civil Code
to follow her husband's actual place of residence fixed by him. The
problem here is that at that time, Mr. Marcos had several places of
residence, among which were San Juan, Rizal and Batac, Ilocos Norte.
There is no showing which of these places Mr. Marcos did fix as his family's
residence. But assuming that Mr. Marcos had fixed any of these places as
the conjugal residence, what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile"
appears to have been incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of 1950, into the New Family
Code. To underscore the difference between the intentions of the Civil Code
and the Family Code drafters, the term residence has been supplanted by
the term domicile in an entirely new provision (Art. 69) distinctly different
in meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's rights in the
intervening years by making the choice of domicile a product of mutual
agreement between the spouses. 46
Without as much belaboring the point, the term residence may mean one
thing in civil law (or under the Civil Code) and quite another thing in
political law. What stands clear is that insofar as the Civil Code is

CONFLICTS | JAN14| 70

concerned-affecting the rights and obligations of husband and wife the


term residence should only be interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in 1954, she
kept her domicile of origin and merely gained a new home, not
a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new
"domicile" after her marriage and only acquired a right to choose a new one
after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile
of origin (assuming this was lost by operation of law) as her domicile. This
"choice" was unequivocally expressed in her letters to the Chairman of the
PCGG when petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them
livable
for
the
Marcos
family
to
have
a
home
in
our
homeland." 47 Furthermore, petitioner obtained her residence certificate in
1992 in Tacloban, Leyte, while living in her brother's house, an act which
supports the domiciliary intention clearly manifested in her letters to the
PCGG Chairman. She could not have gone straight to her home in San Juan,
as it was in a state of disrepair, having been previously looted by vandals.
Her "homes" and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not domicile.
Moreover, and proceeding from our discussion pointing out specific
situations where the female spouse either reverts to her domicile of origin
or chooses a new one during the subsistence of the marriage, it would be
highly illogical for us to assume that she cannot regain her original domicile
upon the death of her husband absent a positive act of selecting a new one
where situations exist within the subsistence of the marriage itself where
the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the facts
established by the parties weigh heavily in favor of a conclusion supporting
petitioner's claim of legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995,
fourteen (14) days before the election in violation of Section 78 of the
Omnibus Election Code. 48 Moreover, petitioner contends that it is the House
of Representatives Electoral Tribunal and not the COMELEC which has
jurisdiction over the election of members of the House of Representatives in
accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within


a specified time is generally construed to be merely directory, 49 "so that
non-compliance with them does not invalidate the judgment on the theory
that if the statute had intended such result it would have clearly indicated
it." 50 The difference between a mandatory and a directory provision is often
made on grounds of necessity. Adopting the same view held by several
American authorities, this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision
is often determined on grounds of expediency, the reason
being that less injury results to the general public by
disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation
of a statute containing a limitation of thirty (30) days within
which a decree may be entered without the consent of
counsel, it was held that "the statutory provisions which
may be thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually those
which relate to the mode or time of doing that which is
essential to effect the aim and purpose of the Legislature or
some incident of the essential act." Thus, in said case, the
statute under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should have
abstained from rendering a decision after the period stated in the Omnibus
Election Code because it lacked jurisdiction, lies in the fact that our courts
and other quasi-judicial bodies would then refuse to render judgments
merely on the ground of having failed to reach a decision within a given or
prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in
relation to Section 78 of B.P. 881, 52 it is evident that the respondent
Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's qualifications after
the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the
sole judge of all contests relating to the elections, returns and qualifications
of members of Congress begins only after a candidate has become a
member of the House of Representatives. 53 Petitioner not being a member
of the House of Representatives, it is obvious that the HRET at this point
has no jurisdiction over the question.

CONFLICTS | JAN14| 71

It would be an abdication of many of the ideals enshrined in the 1987


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

WHEREFORE, having determined that petitioner possesses the necessary


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