[G.R. No. L-24447. June 29, 1968.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. WILLY OBSANIA, defendant-appellee.

Solicitor General for plaintiff-appellant. Maximo V. Cuesta, Jr. for defendant-appellee. SYLLABUS 1. REMEDIAL LAW; COMPLAINT OR INFORMATION; ALLEGATION OF LEWD DESIGN IN CRIME OF RAPE NOT NECESSARY. In a complaint for rape, it is not necessary to allege "lewd design" or "unchaste motive". To require such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself - the carnal knowledge of a woman through force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age. 2. ID.; ID.; SUFFICIENCY OF COMPLAINT OR INFORMATION IN THE CRIME OF RAPE. The complaint here satisfies the requirements of legal sufficiency of an indictment for rape. It unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. The trial court erred in dismissing the case on the proffered ground that the complaint was defective for failure to allege "lewd design". 3. CONSTITUTIONAL LAW; DOUBLE JEOPARDY: REQUISITES. In order that the protection against double jeopardy may inure in favor of an accused, the following requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charges; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. 4. ID.; ID.; WAIVER OF DOUBLE JEOPARDY; DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT CONSTITUTES WAIVER. When the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense because his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. 5. ID.; ID.; PROVISIONAL DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT; SALICO CASE. Where a criminal case is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there can be no double jeopardy under Section 9, Rule 113, if the indictment against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver established in Salico. 6. ID.; ID.; ESTOPPEL; WHEN DEFENDANT ESTOPPED FROM PLEADING DOUBLE JEOPARDY. When the trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction of the lower court in support of his plea of second jeopardy. 7. ID.; ID.; ESTOPPEL AND WAIVER; SIMILARITIES. A dismissal, other than on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same offense.

8. ID.; ID.; RULE ON ESTOPPEL SHOULD BE MAINTAINED; REASONS. This Court forthrightly stated that the rule of estoppel applied in the Acierto case should be maintained because: (1) It is basically and fundamentally sound and just; (2) It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law; (3) It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court; and (4) The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. 9. ID.; ID.; DOCTRINE ON WAIVER IN SALICO CASE NOT IMPLIEDLY ABANDONED. We cannot agree that this Court in Bangalao impliedly abandoned the Salico doctrine on waiver. Bangalao was decided solely on the question of jurisdiction. This Court, after holding that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on the ground of double jeopardy without considering whether the appealed order of dismissal was issued with or without the express consent of the accused because it was granted upon his instigation through a motion to dismiss. 10. ID.; ID.; ID.; SALICO DOCTRINE ON DISMISSAL OF CRIMINAL CASE ON DEFENDANT'S MOTION REPUDIATED. But said ruling is not controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. 11. ID.; ID.; INAPPLICABILITY OF WAIVER AND ESTOPPEL; DISMISSAL CONSIDERED AS ACQUITTAL. In Diaz, Abao, Tacneng and Robles like in Cloribel, the dismissals therein, all sought by the defendant, were considered acquittals because they were all predicated on the right of a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by the accused, the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal. 12. ID.; ID.; CASE AT BAR COMPARED WITH CLORIBEL AND CASES CITED THEREIN. Here the controverted dismissal was predicated on the erroneous contention of the accused that the complaint was defective and such infirmity affected the jurisdiction of the court a quo and not on the right of the accused to a speedy trial and failure of the government to prosecute. The appealed order of dismissal in this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in other related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed that the Government did not have a case against the accused, who, in the first place, is presumed innocent. 13. ID.; ID.; REQUIREMENTS OF WAIVER AND ESTOPPEL. Application of the two sister doctrines of waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced by the defendant personally or through his counsel; and second, such dismissal must not be on the merits and must not necessarily amount to an acquittal. DECISION CASTRO, J p: Before us for review, on appeal by the People of the Philippines, is an order, dated January 8, 1965, of the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an indictment for rape against Willy Obsania.

On November 22, 1964, barely a day after the occurrence of the alleged crime, Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a complaint for rape with robbery, 1 alleging. "That on or about 21st day of November 1964, at around 2:00 to 3:00 in the afternoon, particularly in sitio Cawakalan, barrio of Capulaan municipality of Balungao, Province of Pangasinan, Philippines and within the jurisdiction of the Honorable Court, the said accused Willy Obsania, armed with a dagger, by means of violence and intimidation, willfully, unlawfully and feloniously did then and there have carnal knowledge of the complainant Erlinda Dollente, against her will and on the roadside in the ricefields at the abovementioned place while she was alone on her way to barrio San Raymundo." After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of the above complaint, with an additional averment that the offense was committed "with lewd designs". The accused pleaded not guilty upon arraignment, and forthwith with his counsel moved for the dismissal of the case contending that the complaint was fatally defective for failure to allege "lewd designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action, ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this order, the fiscal brought the instant appeal. Two issues are tendered for resolution, namely: first, are "lewd designs" an indispensable element which should be alleged in the complaint? and, second, does the present appeal place the accused in double jeopardy? Both must be answered in the negative. The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely basically on the ruling in People vs. Gilo (L18202, April 30, 1964). In that case which involved a prosecution for acts of lasciviousness, this Court, in passing, opined that "lewd design" is ". . . an indispensable element of all crimes against chastity, such as abduction, seduction and rape, including acts of lasciviousness . . . an element that characterizes all crimes against chastity, apart from the felonious or criminal intent of the offender, and such element must be always present in order that they may be considered in contemplation of law." Nothing in the foregoing statement can be reasonably interpreted as requiring an explicit allegation of "lewd design" in a complaint for rape. We hold in no uncertain terms that in a complaint for rape it is not necessary to allege "lewd design" or "unchaste motive," for to require such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself the carnal knowledge of a woman through force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age. 2 It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for rape as it unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. We therefore hold that the trial judge erred in dismissing the case on the proffered grounds that the complaint was

defective for failure to allege "lewd design" and, as a consequence of such infirmity, that the court a quo did not acquire jurisdiction over the case. The error of the trial judge was in confusing the concept of jurisdiction with that of insufficiency in substance of an indictment. We come now to the more important issue of double jeopardy. The accused maintains that "assuming, arguendo, that the argument is right that the court a quo has jurisdiction, the appeal of the Government constitutes double jeopardy. An appeal by the prosecution in a criminal case is not available if the defendant would thereby be placed in double jeopardy. 3 Correlatively, Section 9, Rule 117 of the Revised Rules of Court provides: "When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information." In order that the protection against double jeopardy may inure in favor of an accused, the following requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. The complaint filed with the municipal court in the case at bar was valid; the court a quo was a competent tribunal with jurisdiction to hear the case; the record shows that the accused pleaded not guilty upon arraignment. Hence, the only remaining and decisive question is whether the dismissal of the case was without the express consent of the accused. The accused admits that the controverted dismissal was ordered by the trial judge upon his motion to dismiss. However, he vehemently contends that under the prevailing jurisprudence, citing People vs. Bangalao, et al. (94 Phil. 354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960), People vs. Villarin (L-19795, July 31, 1964), People vs. Cloribel (L-20314, August 31, 1964), an erroneous dismissal of a criminal action, even upon the instigation of the accused in a motion to quash or dismiss, does not bar him from pleading the defense of double jeopardy in a subsequent appeal by the Government or in a new prosecution for the same offense. The accused suggests that the above-enumerated cases have abandoned the previous ruling of this Court to the effect that when a case is dismissed, other than on the merits, upon motion of the accused personally or through counsel, such dismissal is to be regarded as with the express consent of the accused and consequently he is deemed to have waived 4 his right to plead double jeopardy and/or he is estopped 5 from claiming such defense on appeal by the Government or in another indictment for the same offense. This particular aspect of double jeopardy dismissal or termination of the original case without the express consent of the defendant has evoked varied and apparently conflicting rulings from this Court. We must untangle this jurisprudential maze and fashion out in bold relief a ruling not susceptible of equivocation. Hence, a searching extended review of the pertinent cases is imperative.

The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for the first time in 1949 in People vs. Salico, supra, with three justices dissenting. 6 In that case, the provincial fiscal appealed from the order of the trial court dismissing, upon motion of the defendant made immediately after the prosecution had rested its case, an indictment for homicide, on the ground that the prosecution had failed to prove that the crime was committed within the territorial jurisdiction of the trial court, or, more specifically, that the municipality of Victorias in which the crime was allegedly committed was comprised within the province of Negros Occidental. Rejecting the claim of the accused that the appeal placed him in double jeopardy, this Court held that the dismissal was erroneous because the evidence on record showed that the crime was committed in the town of Victorias and the trial judge should have taken judicial notice that the said municipality was included within the province of Negros Occidental and therefore the offense charged was committed within the jurisdiction of the court of first instance of the said province. In ruling that the appeal by the Government did not put the accused in peril of a second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon motion of the defendant, the latter has not been in jeopardy," and "assuming arguendo that the defendant had been already in jeopardy in the court below and would be placed in double jeopardy by the appeal, the defendant has waived his constitutional right not to be put in danger of being convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that ". . . when the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832, March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L-15516, December 17, 1966). In Marapao, the defendant was indicted for slight physical injuries in the municipal court of Sibonga, Cebu. After the prosecution had rested its case, a continuance was had, and when trial was resumed, the court, upon motion of the defense, ordered the case dismissed for failure of the prosecution to appear. However, the court reconsidered this order upon representation of the fiscal who appeared moments later, and ordered the defense to present its evidence. The accused moved to set aside the latter order on the ground that it placed him on double jeopardy. Acceding to this motion, the court dismissed the case. Subsequently, the accused was charged in the Court of First Instance of Cebu with the offense of assault upon a person in authority, based on the same facts alleged in the former complaint for slight physical injuries. Again, upon motion of the accused, the trial court dismissed the new indictment on the ground of double jeopardy. From this order, the prosecution appealed. In upholding the appeal of the Government, this Court observed that although the information for assault necessarily embraced the crime of slight physical injuries for which the accused was indicted in the justice of the peace court. ". . . it appears that the appellee was neither convicted nor acquitted of the previous charge against him for slight physical injuries, for that case was dismissed upon his own request before trial could be finished. Having himself asked for such dismissal, before a judgment of conviction or acquittal could have been rendered, the appellee is not entitled to invoke the defense of double jeopardy . . ." In Gandicela, this Court had occasion to reiterate the Salico ruling:

"But where a defendant expressly consents to, by moving for, the dismissal of the case against him, as in the present case, even if the court or judge states in the order that the dismissal is definite or does not say that the dismissal is without prejudice on the part of the fiscal to file another information, the dismissal will not be a bar to a subsequent prosecution of the defendant for the same offense. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil. 722)." And in denying the motion for reconsideration filed by the accused in that case, this Court held: "According to Section 9 of Rule 13, if a criminal case is dismissed otherwise than upon the merits at any stage before judgment, without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant has pleaded to the charge, the dismissal of the case shall be definite or a bar to another prosecution for the same offense; but if it is dismissed upon the petition or with the express consent of the defendant, the dismissal will be without prejudice or not a bar to another prosecution for the same offense, because, in the last case, the defendant's action in having the case dismissed constitutes a waiver of his constitutional right not to be prosecuted again for the same offense." In Pinuela, as in Salico, the prosecution had presented its evidence against the defendant, and the trial court, upon motion of the accused, dismissed the criminal action for lack of evidence showing that the crime charged was committed within its territorial jurisdiction. On appeal by the Government, this Court found that the evidence showed otherwise and, like in Salico, the majority rejected the plea of double jeopardy interposed by the accused on the ground that his virtual instigation of the erroneous dismissal amounted to a waiver of his right against a second jeopardy. In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against him having been dismissed, albeit provisionally, without his express consent, its revival constituted double jeopardy which bars a subsequent prosecution for the same offense. This claim was traversed by the Solicitor General who contended that considering what had transpired in the conference between the parties, the provisional dismissal was no bar to the subsequent prosecution for the reason that the dismissal was made with the defendant's express consent. This Court sustained the view of the Solicitor General, thus: "We are inclined to uphold the view of the Solicitor General. From the transcript of the notes taken at the hearing in connection with the motion for dismissal, it appears that a conference was held between petitioner and the offended party in the office of the fiscal concerning the case and that as a result of that conference the offended party filed the motion to dismiss. It also appears that as no action has been taken on said motion, counsel for petitioner invited the attention of the court to the matter who acted thereon only after certain explanation was given by said counsel. And when the order came the court made it plain that the dismissal was merely provisional in character. It can be plainly seen that the dismissal was effected not only with the express consent of the petitioner but even upon the urging of his counsel. This attitude of petitioner, or his counsel, takes this case out of the operation of the rule." In essence, this Court held that where a criminal case is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there can be no double jeopardy under Section 9, Rule 113, if the indictment against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver established in Salico.

The validity and currency of the Salico doctrine were intimated in the recent case of People vs. Fajardo (L-18257, June 30, 1966), and six months later were reaffirmed in People vs. Desalisa, supra. In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed: "The record does not reveal that appellees expressly agreed to the dismissal of the information as ordered by the trial Judge or that they performed any act which could be considered as express consent within the meaning of the rule. While they did file a motion asking that the case be quashed, or that a reinvestigation thereof be ordered, the court granted neither alternative. What it did was to order the prosecution to amend the complaint. This order was in effect a denial of the motion to quash, and it was only after the prosecution failed to amend that the court dismissed the case on that ground. Consequently, even under the theory enunciated in some decisions of this Court (People vs. Salico, etc.) that if a valid and sufficient information is erroneously dismissed upon motion of the defendant he is deemed to have waived the plea of double jeopardy in connection with an appeal from the order of dismissal, appellees here are not precluded from making such plea." To paraphrase, had the dismissal been anchored on the motion to dismiss, the defendants would not have been entitled to protection against double jeopardy. Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice Jesus Barrera, held that ". . . The ruling in the case of Salico, that the act of the defendant in moving for the dismissal of the case constitutes a waiver of the right to avail of the defense of double jeopardy, insofar as it applies to dismissals which do not amount to acquittal or dismissal of the case on the merits, cannot be considered to have been abandoned by the subsequent decisions on the matter." (Emphasis supplied) xxx xxx xxx

General who sustained Acierto's position on the ground of lack of jurisdiction. Subsequently, he was convicted of estafa and falsification based on the same facts by the Court of First Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the court-martial proceedings, asserting that the military court actually had jurisdiction. In a unanimous 7 decision, this Court, through Mr. Justice Pedro Tuason, ruled: "This is the exact reverse of the position defendant took at the military trial. As stated, he there attacked the court-martial's jurisdiction with the same vigor that he now says the court-martial did have jurisdiction; and thanks to his objections, so we incline to believe, the Commanding General, upon consultation with, and the recommendation of, the Judge Advocate General in Washington, disapproved the court-martial proceedings. xxx xxx xxx

"Irrespective of the correctness of the views of the Military authorities, the defendant was estopped from demurring to the Philippine court's jurisdiction and pleading double jeopardy on the strength of his trial by the court-martial. A party will not be allowed to make a mockery of justice by taking inconsistent positions which if allowed would result in brazen deception. It is trifling with the courts, contrary to the elementary principles of right dealing and good faith, for an accused to tell one court that it lacks authority to try him and, after he has succeeded in his effort, to tell the court to which he has been turned over that the first has committed error in yielding to his plea." (Emphasis supplied) The Acierto ruling was reiterated in People vs. Amada Reyes, et al., (96 Phil. 927, April 30, 1955); People vs. Reyes, et al., (98 Phil. 646, March 23, 1956); People vs. Casiano (L-15309, February 16, 1961), and People vs. Archilla (L-15632, February 28, 1961). The defendants in People vs. Amada Reyes, et al., were charged as accessories to the crime of theft committed by their brother, Anselmo, the principal accused. The latter pleaded guilty to simple theft and was sentenced accordingly. The former pleaded not guilty and subsequently filed a motion to quash on the ground that being brothers and sisters of the principal accused, they were exempt from criminal responsibility for the acts charged against them in the information. Thereupon, the prosecution moved to amend the information so as to allege that the defendants profited from the effects of the crime. In view of this development, counsel for the defendants moved to withdraw their motion to quash and objected to the proposed amendment which sought to change materially the information after plea without the consent of the accused. Without acting on the petition to withdraw the motion to quash, the trial court denied the motion of the prosecution on the ground that the proposed amendment would substantially affect the fundamental rights of the accused who were exempt from liability under the information because of their relation to the principal culprit. Then the prosecution moved for the dismissal of the case against the alleged accessories with reservation to file a new information. The court ordered the dismissal without ruling on the reservation. Subsequently, a new information was filed virtually reproducing the previous one except that now there was an added allegation to intent to gain. The lower court quashed the new information upon motion of the accused on the ground of double jeopardy. On appeal by the prosecution, this Court, thru Mr. Justice J.B.L. Reyes, held that the plea of double jeopardy was erroneously sustained because "In the first place, the accused-appellees herein filed a motion to quash on the ground that they incurred no criminal liability under the facts alleged in the information in the preceding case, No. Q-972, and the trial court instead of allowing the withdrawal of the motion to quash, virtually sustained the same when it denied the fiscal's motion to

". . . an appeal of the prosecution from the order of dismissal (of the criminal complaint) by the trial court will not constitute double jeopardy if (1) the dismissal is made upon motion, or with express consent of the defendant, and (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal; so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." (Emphasis supplied) The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated in Acierto which held that when the trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction of the lower court in support of his plea of second jeopardy. The doctrine of estoppel is in quintessence the same as the doctrine of waiver: the thrust of both is that a dismissal, other than on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same offense. In Acierto, the defendant was charged before a United States courtmartial with having defrauded the Government of the United States, through falsification of documents, within a military base of the United States in the Philippines. The challenge by the accused against the jurisdiction of the military tribunal was brushed aside, and he was convicted. On review, the verdict was reversed by the Commanding

amend, thereby forcing the latter to dismiss the case; hence, it can not be held that the former case was terminated without the express consent of the accused. Secondly, the defendants themselves showed that the information in the previous case was insufficient to charge them with any criminal offense, in view of their relationship with the principal accused; and it is well established doctrine that for jeopardy to attach, there must be an information sufficient in form and substance to sustain a conviction. Lastly, the herein accused having successfully contended that the information in the former case was insufficient to sustain a conviction, they cannot turn around now and claim that such information was after all, sufficient and did place them in danger of jeopardy of being convicted thereunder. If, as they formerly contended, no conviction could be had in the previous case, they are in estoppel to contend now that the information in the second case places them in jeopardy for the second time. Their case comes within the spirit of the rule laid down in People vs. Acierto . . ." Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice Paras, reiterated the Acierto ruling, thus: "Where the complaint or information is in truth valid and sufficient, but the case is dismissed upon the petition of the accused on the ground that the complaint or information is invalid and insufficient, such dismissal will not bar another prosecution for the same offense and the defendant is estopped from alleging in the second information that the former dismissal was wrong because the complaint or information was valid." In this particular case, upon motion of the defendants, the trial court dismissed the information because it did not allege the use of violence, notwithstanding the fact that the offense charged was coercion under Article 287 of the Revised Penal Code. On appeal, however, this Court ruled that the dismissal was erroneous because "although the offense named in the information is coercion, it does not necessarily follow that the applicable provision is the first paragraph, since the second paragraph also speaks of 'coercions'. Inasmuch as the recitals in the information do not include violence, the inevitable conclusion is that the coercion contemplated is that described and penalized in the second paragraph." We come now to the case of People vs. Casiano. In this case the accused was charged with estafa in a complaint filed with the justice of the peace court of Rosales, Pangasinan. The accused waived her right to preliminary investigation and the record was accordingly forwarded to the Court of First Instance of Pangasinan where the provincial fiscal filed an information of "illegal possession and use of false treasury or bank notes." Upon arraignment the defendant pleaded not guilty. Subsequently, the defense filed a motion to dismiss on the thesis that there had been no preliminary investigation of the charge of illegal possession and use of false treasury or bank notes, and that the absence of such preliminary investigation affected the jurisdiction of the trial court. The motion was granted on the ground that the waiver made by the defendant in the justice of the peace court did not deprive her of the right to a preliminary investigation of an entirely different crime. On appeal to this Court, it was held that the dismissal was erroneous because the allegations of the information filed in the Court of First Instance were included in those of the complaint filed in the justice of the peace court where the defendant had already waived her right to a preliminary investigation. On the question of whether the appeal placed the defendant in double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion, observed that the situation of Casiano was identical to that of the accused in Acierto ". . . were she to plead double jeopardy in this case, for such plea would require the assertion of jurisdiction of the court of first instance to try her and that the same erred in yielding to her plea therein for lack of authority therefor. In the language of our decision in the Acierto

case, it is immaterial whether or not the court a quo had said authority. It, likewise, makes no difference whether or not the issue raised by defendant in the lower court affected its jurisdiction. The fact is that she contested its jurisdiction and that, although such pretense was erroneous, she led the court to believe that it was correct and to act in accordance with such belief. The elementary principles of fair dealing and good faith demand, accordingly, that she be estopped now from taking the opposite stand in order to pave the way for a plea of double jeopardy, unless the rule of estoppel laid down in the Acierto case is revoked. As a matter of fact, said rule applies with greater force to the case at bar than to the Acierto case, because the same involved two (2) separate proceedings before courts deriving their authority from different sovereignties, whereas the appeal in the case at bar is a continuation of the proceedings in the lower court, which like this Supreme Court, is a creature of the same sovereignty. In short, the inconsistency and impropriety would be more patent and glaring in this case than in that of Acierto, if appellant herein pleaded double jeopardy in this instance." This Court then forthrightly stated that "the rule of estoppel applied in the Acierto case should be maintained, because "1. It is basically and fundamentally sound and just.

"2. It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law. "3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court. xxx xxx xxx

"4. The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred on appeal, from assailing such jurisdiction, for the same 'must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel' (5 C. J.S. 861-863). However, if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. Here, the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon." Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the doctrine of estoppel. In this case Alfreda Roberts, together with Jose Archilla, was charged with bigamy. After pleading not guilty, Roberts, through her counsel, filed a motion praying that the complaint be quashed with regard to her on the ground that the facts alleged therein did not constitute the offense charged for failure to aver that "insofar as Alfreda Roberts is concerned, her marriage to Jose Luis Archilla was her second marriage . . ." On appeal, the prosecution contended that the trial court erred in granting the motion to quash, because the complaint was sufficient and at least charged the accused as an accomplice. The defendant maintained that even if that were true, the quashing of the information amounted to her acquittal which prevented the prosecution from taking the said appeal as it would place her in double jeopardy. Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that the trial court erred, and proceeded to emphasize that the accused ". . . cannot now be allowed to invoke the plea of double jeopardy after inducing the trial court to commit an error which otherwise it would not

have committed. In other words, appellee can not adopt a posture of double dealing without running afoul with the doctrine of estoppel. It is well-settled that the parties to a justiciable proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court (Williams vs. McMicking, 17 Phil. 408; Molina vs. Somes etc.). Consequently, appellee is now estopped from invoking the plea of double jeopardy upon the theory that she would still be convicted under an information which she branded to be insufficient in the lower court." The accused in this case now before us nevertheless insists that the Salico doctrine and "necessarily analogous doctrines" were abandoned by this Court in Bangalao, Labatete, Villarin and Cloribel. In Bangalao, the complaint filed by the victim's mother alleged that the rape was committed "by means of force and intimidation" while the information filed by the fiscal alleged that the offended party was a "minor and demented girl" and that the defendants "successively had sexual intercourse with her by means of force and against the will of Rosita Palban." After the accused had pleaded not guilty, the defense counsel moved for the dismissal of the case on the ground that the trial court lacked jurisdiction to try the offense of rape charged by the fiscal since it was distinct from the one alleged in the complaint which did not aver that the victim was a "demented girl". The lower court sustained the motion and dismissed the case for lack of jurisdiction. On appeal by the prosecution, this Court held that the trial judge erred in dismissing the case for lack of jurisdiction, but ruled, however, that the appeal could not prosper because it placed the accused in double jeopardy. "As the court below had jurisdiction to try the case upon the filing of the complaint by the mother of the offended party, the defendantsappellees would be placed in double jeopardy if the appeal is allowed." After mature analysis, we cannot agree that this Court in Bangalao impliedly abandoned the Salico doctrine on waiver, Bangalao was decided solely on the question of jurisdiction. This Court, after holding that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on the ground of double jeopardy without considering whether the appealed order of dismissal was issued with or without the express consent of the accused (this aspect of double jeopardy not being in issue). Hence, the ruling in Salico that the dismissal was with the express consent of the accused because it was granted upon his instigation thru a motion to dismiss was not passed upon in Bangalao. A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124, October 23, 1956). In this case, after the prosecution had rested, the accused filed a motion to dismiss on the ground that the territorial jurisdiction of the trial court had not been established. Acting on this motion, the lower court dismissed the case. The prosecution appealed. This Court found that the evidence on record, contrary to the finding of the trial court, amply proved the jurisdiction of the lower tribunal. However, without the defendant interposing the plea of double jeopardy, this Court held that "the Government however meritorious its case cannot appeal the order of dismissal without violating the right of the defendant not to be placed in double jeopardy." Again, like in Bangalao, this Court did not consider the nature of the dismissal whether it was with or without the express consent of the defendant. The accused in the case at bar avers that the Salico doctrine was formally and expressly abandoned in People vs. Labatete, supra. In the latter case, the trial court, upon motion of the defendant, dismissed the original information for estafa on the ground that it did not allege facts constituting the offense charged. The information recited that the accused had contracted a loan from the complainant, giving as security

the improvements and products of his property (a piece of land), without averring that the said property, which was allegedly mortgaged by the accused to the Rehabilitation Finance Corporation, formed part of the security. Consequently, the fiscal filed an amended complaint alleging that the accused also gave as security the land in question, which the later mortgaged to the damage and prejudice of the complaining creditor. This amended information was also dismissed upon motion of the defendant on the ground of double jeopardy. This Court, in sustaining the appealed order of dismissal, held:

"If the amended information were to be admitted, the accused will be deprived of his defense of double jeopardy because by the amended information he is sought to be made responsible for the same act of borrowing on a mortgage for which he had already begun to be tried and acquitted by the dismissal of the original information." xxx xxx xxx

". . . the trial court found that the accused could not be found guilty of any offense under the information. The judgment entered was not one of dismissal but of acquittal, and whether the judgment is correct or incorrect, the same constitutes a bar to the presentation of the amended information sought to be introduced by the fiscal." (Emphasis supplied) In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador, expounded: ". . . The judgment of the trial court (in People vs. Salico) was in fact an acquittal because of the failure on the part of the fiscal to prove that the crime was committed within the jurisdiction of the court. The judgment was in fact a final judgment of acquittal. The mere fact that the accused asked for his acquittal after trial on the merits (after the prosecution had rested its case) is no reason for saying that the case was 'dismissed' with his express consent and he may again be subjected to another prosecution." From the above-quoted statement, it is clear that what in Salico was repudiated in Labatete was the premise that the dismissal therein was not on the merits and not the conclusion that a dismissal, other than on the merits, sought by the accused, is deemed to be with his express consent and therefore constitutes a waiver of his right to plead double jeopardy in the event of an appeal by the prosecution or a second indictment for the same offense. This Court, in Labatete, merely pointed out that the controverted dismissal in Salico "was in fact an acquittal." Reasoning a contrario, had the dismissal not amounted to acquittal, then the doctrine of waiver would have applied and prevailed. As a matter of fact we believe with the majority in Salico that the dismissal therein was not on the merits and therefore did not amount to an acquittal: "If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted for the same offense before a court of competent jurisdiction; that it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction." Granting, however, that the Salico doctrine was abandoned in Labatete, it was resurrected in Desalisa. Moreover, Labatete never mentioned the doctrine of estoppel enunciated in Acierto which had been repeatedly reaffirmed. To bolster his contention that the Salico doctrine has been dropped from the corpus of our jurisprudence, the accused cites People vs.

Villarin, supra. Here the accused appealed to the Court of First Instance his conviction in the inferior court for acts of lasciviousness with consent. After conducting the preliminary investigation, the fiscal charged the accused with corruption of minors. Villarin pleaded not guilty, and before the case could be heard, his counsel filed a motion to dismiss on the ground that the information did not allege facts constituting the crime charged. Acting on this motion, the trial court dismissed the case. On appeal by the prosecution, this Court, thru Mr. Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that this error ". . . cannot now be remedied by setting aside the order of dismissal of the court a quo and by remanding the case to it for further proceedings as now suggested by the prosecution considering that the case was dismissed without the express consent of the accused even if it was upon the motion of his counsel, for to do so would place the accused in double jeopardy. The only exception to the rule on the matter is when the dismissal is with the consent of the accused, and here this consent has not been obtained."(Emphasis supplied) Villarin gives the impression, as gleaned from the above statement, that this Court therein sustained the plea of double jeopardy on the ground that the dismissal was without the express consent of the defendant as it was ordered "upon the motion of his counsel" and not upon motion of the defendant himself. This conclusion is rather unfortunate and must be rectified, for the settled rule is that the acts of counsel in a criminal prosecution bind his client. Thus, in People vs. Romero (89 Phil. 672, July 31, 1951), this Court held categorically that "The fact that the counsel for the defendant, and not the defendant himself personally moved for the dismissal of the case against him, had the same effect as if the defendant had personally moved for such dismissal, inasmuch as the act of the counsel in the prosecution of the defendants cases was the act of the defendant himself, for the only case in which the defendant cannot be represented by his counsel is in pleading guilty according to Section 3, Rule 114, of the Rules of Court." (Emphasis supplied) On this consideration alone, we cannot agree with the accused in the case at bar that this Court in Villarin intended to abandon the Salico ruling. Had the motion to dismiss filed by Villarin's counsel been considered as one made by the defendant himself, as should have been done, the Villarin case should have been resolved consistent with the doctrine of waiver in Salico and/or that of estoppel in Acierto. As a final citation in support of his theory, the accused in the case at bar invokes People vs. Cloribel, supra, where this Court, in sustaining the plea of double jeopardy interposed by the defendants, stated inter alia: "In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner adopts the ruling once followed by this Court to the effect that a dismissal upon the defendant's own motion is a dismissal consented to by him and, consequently, will not be a bar to another prosecution for the same offense, because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (People vs. Salico, 84 Phil. 722) But, this authority has long been abandoned and the ruling therein expressly repudiated. "Thus, in the case of People vs. Robles, G.R. No. L-12761, June 29, 1959, citing People vs. Bangalao, L-5610, February 17, 1954; People vs. Diaz, L-6518, March 30, 1954; People vs. Abao, L-7862, May 17, 1955; and People vs. Ferrer, L-9072, October 23, 1956, We said:

'. . . In reaching the above conclusion, this Court has not overlooked the ruling in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of the defendant, which ruling the prosecution now invokes in support of its appeal; but said ruling is not now controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. (Italics supplied.) "Also, the rule that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal is not without the express consent of the defendant, has no application to a case where the dismissal, as here, is predicated on the right of a defendant to a speedy trial (People vs. Tacneng, et al., G.R. No. L12082, April 30, 1959.)" (emphasis supplied) The above statements must be taken in the proper context and perspective. As previously explained, Bangalao, Ferrer, and even Labatete, did not actually abandon the doctrine of waiver in Salico (and not one of the said cases even implied the slightest departure from the doctrine of estoppel established in Acierto). In Diaz, Abao, Tacneng and Robles which are cited above, like in Cloribel, the dismissals therein, all sought by the defendants, were considered acquittals because they were all predicated on the right of a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by the accused, the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal. This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94 Phil. 714, March 30, 1954): "Here the prosecution was not even present on the day of trial so as to be in a position to proceed with the presentation of evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking for postponement or giving any explanation, just failed to appear. So the dismissal of the case, though at the instance of defendant Diaz may, according to what we said in the Gandicela case, be regarded as an acquittal" (italics supplied) A similar result was reached by this Court, thru Mr. Justice Sabino Padilla, in People vs. Abao (97 Phil. 28, May 27, 1955), in this wise: "After a perusal of the documents attached to the petition for a writ of certiorari, we fail to find an abuse of discretion committed by the respondent judge. He took pains to inquire about the nature of the ailment from which the complaining witness claimed she was suffering. He continued the trial three times, to wit: on 27 May, 1 and 12 June. The defendant ,was entitled to a speedy trial. When on 15 June, the last day set for the resumption of the trial, the prosecution failed to secure the continuance thereof and could not produce further evidence because of the absence of the complaining witness, the respondent judge was justified in dismissing the case upon motion of the defense . . . The defendant was placed in jeopardy for the offense charged in the information and the annulment or setting aside of the order of dismissal would place him twice in jeopardy of punishment for the same offense." (italics supplied) Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia, speaking for a unanimous Court; stressed that ". . . when criminal case No. 1793 was called for hearing for the third time and the fiscal was not ready to enter into trial due to the absence of his witnesses, the herein appellees had the right to object to any further postponement and to ask for the dismissal of the case by reason of their constitutional right to a speedy trial; and if pursuant to

that objection and petition for dismissal the case was dismissed, such dismissal amounted to an acquittal of the herein appellees which can be invoked, as they did, in a second prosecution for the same offense." (emphasis supplied) And this Court proceeded to distinguish the case from People vs. Salico, thus: "We are fully aware that pursuant to our ruling in the case of People vs. Salico, 45 O.G. No. 4, 1765-1776, and later reiterated in People vs. Romero, L-4517-20, July 31, 1951, a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of defendant. This ruling, however, has no application to the instant case, since the dismissal in those cases was not predicated, as in the case at bar, on the right of a defendant to a speedy trial, but on different grounds. In the Salico case, the dismissal was based on the ground that the evidence for the prosecution did not show that the crime was committed within the territorial jurisdiction of the court which, on appeal, we found that it was, so the case was remanded for further proceedings; and in the Romero case the dismissal was due to the non-production of other important witnesses by the prosecution on a date fixed by the court and under the understanding that no further postponement at the instance of the government would be entertained. In both cases, the right of a defendant to a speedy trial was never put in issue." (emphasis supplied) The gravamen of the foregoing decisions was reiterated in People vs. Robles (L-12761, June 29, 1959) where the trial court, upon motion of the defendant, dismissed the case on the ground that the failure of the prosecution to present its evidence despite several postponements granted at its instance, denied the accused a speedy trial. In rejecting the appeal of the Government, this Court held: "In the circumstances, we find no alternative than to hold that the dismissal of Criminal Case No. 11065 is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense." In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of the defendants, the case was dismissed. This Court held "that the dismissal here complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." (italics supplied.) Considering the factual setting in the case at bar, it is clear that there is no parallelism between Cloribel and the case cited therein, on the one hand, and the instant case, on the other. Here the controverted dismissal was predicated on the erroneous contention of the accused that the complaint was defective and such infirmity affected the jurisdiction of the court a quo, and not on the right of the accused to a speedy trial and the failure of the Government to prosecute. The appealed order of dismissal in this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in the other related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed that the Government did not have a case against the accused, who, in the first place, is presumed innocent. The application of the sister doctrines of waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced by the defendant personally or through his counsel; and

second, such dismissal must not be on the merits and must not necessarily amount to an acquittal. Indubitably, the case at bar falls squarely within the periphery of the said doctrines which have been preserved unimpaired in the corpus of our jurisprudence. ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded to the court of origin for further proceedings in accordance with law. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.

[G.R. No. 103323. January 21, 1993.] RAMON S. PAULIN, ANGELA F. PAULIN and JOSE BACHO, petitioners, vs. HON. CELSO M. GIMENEZ (In his capacity as Presiding Judge of RTC, Cebu City, Branch 5), HON. MAMERTO Y. COLIFLORES (In his capacity as Judge of the MTC of Talisay, Branch IX, Cebu); CASTRO BELME, and The PEOPLE OF THE PHILIPPINES, respondents. Mari V. Andres and Romarie G. Villonco for petitioners. Garcia, Garcia, Ong, Vano & Associates for respondent Castro Belme Mabuyo. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; JURISDICTION; COURT OUSTED OF JURISDICTION IN CASE OF VIOLATION OF BASIC CONSTITUTIONAL RIGHTS; CASE AT BAR. Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.) Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy. In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion.

2. ID.; ID.; DEMURRER TO EVIDENCE; MOTION INTERPOSED BEFORE PROSECUTION COMPLETES PRESENTATION OF EVIDENCE PREMATURE. Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that, therefore, no other evidence could have been introduced by the prosecution. Submission of the affidavits to the court does not warrant the inference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. 3. ID.; ID.; DOUBLE JEOPARDY; REQUISITES. For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution: a) a valid complaint or information; b) a competent court; c) the defendant had pleaded to the charge; and d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC, 179 SCRA 54 [1989]). 4. ID.; ID.; ID.; EXCEPTIONS THERETO; DOCTRINE OF WAIVER OF DOUBLE JEOPARDY. Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows: ". . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." (People v. Villalon, 192 SCRA 521 [1990], at p. 529.). For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [19491), where Justice Felicisimo Feria stated: ". . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]). 5. ID.; ID.; ID.; INSTANCES WHERE DOUBLE JEOPARDY ATTACHES ALTHOUGH DISMISSAL WAS MADE ON MOTION OF ACCUSED; CASE AT BAR. Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an

acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.) Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses. 6. ID.; ID.; ACQUITTAL DISTINGUISHED FROM DISMISSAL; CASE AT BAR. In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit: ". . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. . . . " The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated: "Sec. 14. Amendments. . . . If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11 . . ." In Section 11 of the same Rule, it is provided: "When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." (Id., Sec. 11. Rule 119.) In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code. DECISION MELO, J p: The petition before us arose from a November 10, 1989 incident when the jeep ridden by private respondent and Barangay Captain Castro Belme Mabuyo was overtaken by the Nissan Patrol ridden by herein petitioners, the spouses Dr. Ramon and Angela Paulin, smothering the former with dust. Irked by this incident, Mabuyo followed the Nissan Patrol until it entered the back gate of Rattan Originals in Tanke, Talisay, Cebu. Inquiring from a nearby security guard as to who owns the Nissan Patrol, he was informed that it belonged to and was driven by petitioner Dr. Ramon Paulin. Later, while Mabuyo was investigating some problems of his constituents in Kilawan at Tanke, Cebu, Dr. Ramon Paulin and his wife, Angie, allegedly pointed their guns at Mabuyo while Jose Bacho, a companion of the spouses, acted as back-up. Mabuyo instructed one of the barangay tanods to call the police in Talisay and the rest to block the exit of the spouses and their lone companion.

Sensing that they were outnumbered, the spouses put their guns down and upon the arrival of the police officers, they were brought to the police station. On the same date, Station Commander P/Lt. Ariel Palcuto filed a complaint for "grave threats," against the spouses Paulin and Bacho, herein petitioners, which was later docketed as Criminal Case No. 5204. On November 20, 1989, the station commander filed a complaint for, "grave threats and oral defamation," against private respondent Mabuyo, docketed as Criminal Case No. 5213. LLjur The cases were jointly tried and, on June 13, 1990, the Municipal Trial Court of Talisay, Cebu (Branch IX), acting on a motion of the spouses Paulin and Jose Bacho, dismissed Criminal Case No. 5204. On July 2, 1990, Mabuyo filed a, "Motion for Reconsideration," of the said dismissal order which the court granted in a resolution dated July 3, 1990. At the hearing of Criminal Case No. 5213 on July 5, 1990, petitioners vigorously sought the setting aside of the July 3, 1990 resolution in Criminal Case No. 5204, but the same was denied in another resolution. Not satisfied with the resolution of respondent Judge Mamerto Y. Coliflores, petitioners filed on July 31, 1990 a petition for "certiorari, prohibition, damages, with relief for preliminary injunction and the issuance of a temporary restraining order" with the Regional Trial Court of the Seventh Judicial Region, which was thereafter docketed as Special Civil Action No. CEB-9207 and later re-raffled to Branch 5 stationed in Cebu City presided over by respondent Judge Celso M. Gimenez, who dismissed the petition in a decision dated December 19, 1991, The decretal portion of the decision states: "All the foregoing considered, for lack of merit and for being a prohibited pleading under the Rule on Summary Procedure, as revised, the instant petition is hereby dismissed. Public respondent is hereby ordered to proceed with the trial of Crim. Case Nos. 5204 and 5213 and to decide both cases on their merits within the period provided under the Revised Rule on Summary Procedure. The preliminary injunction heretofore issued dated May 9, 1991, is hereby lifted and set aside." (p. 118, Rollo) Still not contented, petitioners have now resorted to the instant petition, arguing that (a) the decision of the municipal trial court dated June 13, 1990 dismissing the case against them was a judgment of acquittal, and may no longer be set aside without violating petitioners' right against double jeopardy: and (b) the regional trial court, in dismissing the petition in CEB-9207 abused its discretion as it ignored petitioners' right against double jeopardy. The main issue to be resolved is whether or not the municipal trial court's dismissal of Criminal Case No. 5204 against petitioners precludes a subsequent reconsideration or reversal of such dismissal as the same would violate petitioners' right against double jeopardy. The secondary issue dwells on the applicability of the Rule on Summary Procedure prohibiting motions to dismiss and petitions for certiorari. Cdpr For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution: a) b) c) a valid complaint or information; a competent court; the defendant had pleaded to the charge; and

10

d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC , 179 SCRA 54 [1989]). Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows: ". . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." (People v. Villalon, 192 SCRA 521 [1990], at p. 529.) For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [19491), where Justice Felicisimo Feria stated: ". . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]). Petitioners insist that the June 13, 1990 decision of the Municipal Trial Court (MTC) is an acquittal since it was issued after it had allegedly considered the merits of the prosecution's evidence. In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit: ". . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. . . ." (at pp. 732-733.) The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. cdll Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated: "SECTION 14. Amendments. . . .

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11 . . ." In Section 11 of the same Rule, it is provided: "When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." (Id., Sec. 11. Rule 119.) In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code. Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.) Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses. "Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.) Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. cdll

11

In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy. In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion. The Rule on Summary Procedure was correctly applied by the public respondents in this case. Petitioners argue that public respondents gravely abused their discretion in applying the provision prohibiting the filing of motions to dismiss and petitions for certiorari provided under the Rule on Summary Procedure. They claim that the prohibition under Section 15 of the Rule on Summary Procedure refers to motions to dismiss or to quash filed before the accused enters his plea. In any event, petitioners insist that they filed a demurrer to evidence which is not a prohibited pleading under the Rule on Summary Procedure. Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that, therefore, no other evidence could have been introduced by the prosecution. LexLib Submission of the affidavits to the court does not warrant the inference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. The Rule on Summary Procedure states: "SECTION 14. Procedure of Trial. Upon a plea of not guilty being entered, the trial shall immediately proceed. The affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party

presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. No witness shall be allowed to testify unless he had previously submitted an affidavit to the court in accordance with Sections 9 and 10 hereof." WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court dated December 19, 1991 AFFIRMED. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ ., concur.

12

[G.R. No. L-26376. August 31, 1966.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. AURELIO BALISACAN, defendant-appellee. BENGZON, J.P., J p: This is an appeal by the prosecution from a decision of acquittal. On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First Instance of Ilocos Norte. The information alleged: "That on or about December 3, 1964, in the municipality of Nueva Era, province of Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab one Leonicio Bulaoat, inflicting upon the latter wounds that immediately caused his death. "CONTRARY TO LAW." To this charge the accused, upon being arraigned, entered a plea of guilty. In doing so he was assisted by counsel. At his de oficio counsel's petition, however, he was allowed to present evidence to prove mitigating circumstances. Thereupon the accused testified to the effect that he stabbed the deceased in self-defense, because the latter was strangling him. And he further stated that after the incident he surrendered himself voluntarily to the police authorities. Subsequently, on March 6, 1965, on the basis of the abovementioned testimony of the accused, the court a quo rendered a decision acquitting the accused. As stated, the prosecution appealed therefrom. This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, 1965. No appellee's brief was filed. After being submitted for decision without appellee's brief, the appeal was certified to Us by the Court of Appeals on July 14, 1966, as involving questions purely of law (Sec. 17, Republic Act 296) and on August 5, 1966, We ordered it docketed herein. The sole assignment of error is: "THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY WHEN ARRAIGNED." Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by law under the circumstances. (People vs. Ng Pek, 81 Phil. 563). In this case, the defendant was only allowed to testify in order to establish mitigating circumstances, for the purpose of fixing the penalty. Said testimony, therefore, could not be taken as a trial on the merits, to determine the guilt or innocence of the accused. In view of the assertion of self-defense in the testimony of the accused, the proper course should have been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in the order set forth in Section 3 Rule 119 of the Rules of Court: "SEC. 3. Order of trial. The plea of not guilty having been entered, the trial must proceed in the following order: "(a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges.

"(b) The defendant or his attorney may offer evidence in support of the defense. "(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question. "(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case." In deciding the case upon the merits without the requisite trial, the court a quo not only erred in procedure but deprived the prosecution of its day in court and right to be heard. This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a brief and raise the question of double jeopardy (People vs. Ferrer, L-9072, October 23, 1956; People vs. Bao, 106 Phil. 243; People vs. de Golez, 108 Phil. 855) The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that the existence of a plea is an essential requisite to double jeopardy (People vs. Ylagan, 58 Phil. 851; People vs. Quimsing, L-19860, December 23, 1964). In the present case, it is true, the accused had first entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating circumstances, that he acted in complete self-defense. Said testimony, therefore as the court a quo recognized in its decision had the effect of vacating his plea of guilty and the court a quo should have required him to plead anew on the charge, or at least direct that a new plea of not guilty be entered for him. This was not done. It follows that in effect there having been no standing plea at the time the court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect to the appeal herein. 1 Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental pre-requisite its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People vs. Cabero, 61 Phil. 121; 21 Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445) It should be noted that in rendering the judgment of acquittal, the trial judge below already gave credence to the testimony of the accused. In fairness to the prosecution, without in any way doubting the integrity of said trial judge, We deem it proper to remand this case to the court a quo for further proceedings under another judge of the same court, in one of the two other branches of the Court of First Instance of Ilocos Norte sitting at Laoag. WHEREFORE, the judgment appealed from is hereby set aside and this case is remanded to the court a quo for further proceedings under another judge of said court, that is, for plea by the defendant, trial with presentation of evidence for the prosecution and the defense, and judgment thereafter. No costs. So ordered.

13

[G.R. No. L-54110. February 20, 1981.] GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu City, respondents. SYNOPSIS Petitioner and three others were charged with grave coercion in the city court. After three resettings of the hearing at the instance of the prosecution, the fiscal moved for a fourth transfer of the scheduled trial on the ground that the complainant was sick. The accused opposed the motion and, invoking their constitutional right to a speedy trial, insisted on the hearing of the case, stating that otherwise, the case should be dismissed. Respondent judge provisionally dismissed the case. Twenty seven days later, the fiscal moved for its revival. The motion was granted without opposition. Subsequently, however, the accused filed a motion to dismiss on the ground of double jeopardy, which the court denied. Hence, this petition. The Supreme Court held, that jeopardy attached to the provisional dismissal of the criminal case after arraignment, whether the same was ordered at the court's own volition or upon motion of the accused, because the fiscal was not ready for trial due to the absence of the complainant in court, and the accused, invoking their right to a speedy trial, insisted on a trial. Order denying motion to dismiss reversed and set aside. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; RULE THEREON PROVIDED FOR IN CONSTITUTION AND COMPLETED BY RULE 117 OF RULES OF COURT. The rule on double jeopardy (non bis in idem or not twice for the same) is found in section 22, Article IV (Bill of Rights) of the Constitution which provides that "no person be twice put in jeopardy of punishment for the same offense." This is completed by section 9 Rule 117 of the Rules of Court which precludes a person's subsequent indictment for the same offense where there has already been acquittal (autrefois acquit), previous conviction (autrefois convict) or dismissal or termination of the case without his consent. 2. ID.; ID.; ID.; CONDITIONS FOR DOUBLE JEOPARDY TO EXIST; EFFECTS OF PRESENCE THEREOF. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any offense which necessarily includes or its included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). 3. ID.; ID.; ID.; PROVISIONAL DISMISSAL IN CASE AT BAR PLACES PETITIONERS IN JEOPARDY SINCE FACT OF ACCUSED'S CONSENT THERETO IS NOT CLEAR. On this case, the provisional dismissal of the criminal case against petitioners has placed them in jeopardy, because it is not very clear that they consented to such dismissal. The petitioners were insisting on a trial, They relied on their constitutional right to have a speedy trial. The fiscal was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy.

4. ID.; ID.; ID.; PROVISIONAL DISMISSAL ALTHOUGH UPON MOTION OF ACCUSED PLACES THEM IN JEOPARDY WHERE RIGHT TO SPEEDY TRIAL INVOKED. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the provisional dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). "If the defendant wants to exercise his constitutional right to a speedy trial, he should ask not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717). AQUINO, J p: This case poses the issue of whether the revival of a grave coercion case, which was provisionally dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial, would place the accused in double jeopardy, considering their constitutional right to have a speedy trial. Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards. The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic request of Father Tibudan, the case was reset on December 13, 1978. Because Esmea and Alba were not duly notified of that hearing, they were not able to appear. The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the arraignment because complainant Father Tibudan requested the transfer of the hearing to another date. In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979 at 8:30 o'clock in the morning" (p. 21, Rollo). When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Their counsel told the court: ". . . we are now invoking the constitutional right of the accused to a speedy trial of the case. . . . We are insisting on our stand that the case be heard today; otherwise, it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused Alberto Alba and Generoso Esmea." (pp. 50 and 52, Rollo). Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. The court noted that there was no medical certificate indicating that the complainant was really sick. The case was

14

continued as to the fifth accused who did not appear at the hearing. His arrest was ordered (p. 23, Rollo). Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case. He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was sick of influenza on August 16, 1979. The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the impress of finality and, therefore, the case could be revived without the filing of a new information (Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175). The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p. 26, Rollo). On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place them in double jeopardy. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had appeared in court several times but the hearing was not held. The court denied the motion to dismiss. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor General agrees with the petitioners that the revival of the case would place the accused in double jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal. The rule on double jeopardy (non bis in idem or not twice for the same) is found in section 22, Article IV (Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: prLL "SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or termination of the case without his consent

precludes his subsequent indictment for the same offense as defined in section 9. In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. That provisional dismissal would not have placed the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. cdrep The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial. The fiscal was not ready because his witness was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). "If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717). The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilla vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao, 97 Phil. 28; People vs. Labatete, 107 Phil. 697). WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed and set aside. No costs. SO ORDERED. Barredo (Chairman), Concepcion Jr., Abad Santos and De Castro, JJ., concur.

15

[G.R. No. L-41863. April 22, 1977.] PEOPLE OF THE PHILIPPINES, and ASST. PROV'L. FISCAL F. VISITACION, JR., petitioners, vs. HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for petitioners. Fama & Jimenea for private respondent. DECISION BARREDO, J p: Petition for certiorari to set aside the orders of respondent judge dated September 22, 1975 and October 14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against private respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double jeopardy, in view of the dismissal of a previous charge of slight physical injuries against the same respondent for the same incident by the Municipal Court of January, Iloilo in Criminal Case No. 3335, notwithstanding that in the information in the firstmentioned case, it was alleged that the injuries sustained by the offended party, aside from possibly requiring medical attendance from 5 to 9 days "barring complications", as was alleged in the information in Criminal Case No. 3335, had left "a permanent scar and deform(ed) the right face of (said offended party) Miguel Viajar." The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as follows: "That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza St., Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, while armed with a piece of stone, did then and there willfully, unlawfully and feloniously, assault, attack and use personal violence upon one Miguel Viajar by then hurling the latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting physical injuries which would have required and will require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician hereto attached. CONTRARY TO LAW." (Pp. 93-94, Record). Arraigned on July 7, 1975, the accused entered a plea of not guilty. Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries as follows: "That on or about April 12, 1975, in the Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the said accused, with deliberate intent, and without any justifiable motive, armed with pieces of stone did then and there willfully, unlawfully and feloniously attack, assault and throw pieces of stone at Miguel Viajar, hitting him on the lower right eye which would heal from five (5) to nine (9) days barring complications but leaving a permanent scar and deforming on the right face of said Miguel Viajar.

CONTRARY TO LAW." (Pp. 94-95, Record). On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was opposed by the Fiscal and the Court required both parties to file their respective memorandum on the issue of double jeopardy. LexLib In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but the Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view of the postponements asked by the Fiscal in order to await the resolution of the issue of double jeopardy in Case No. 5241, on September 11, 1975, the following order was entered: "Under our democratic and constituted system of government litigants before our courts of justice, plaintiffs and defendants, complainants and accused are entitled to the equal protection of our laws. More is an accused, the trial of his case has been repeatedly postponed for several times by this Court in the exercise of its sound discretion at the instance of the prosecution. So, when this case was called for hearing on the afternoon of September 1, 1975 the accused through counsel vigorously objected to another postponement and moved for the dismissal of the case against him. To grant another postponement as sought by the Fiscal against the vehement, strong and vigorous objection of the accused is to the mind of the Court, no longer an exercise of sound discretion consistent with justice and fairness but a clear and palpable abuse of discretion amounting to a serious denial to, and a grave violation of, the right of the accused to a speedy trial to which he is rightfully entitled to under Section 16 of Article IV, (Bill of Rights) of the Philippine Constitution. "IN VIEW OF THE FOREGOING, the above-entitled case is hereby ordered dismissed. The Cash Bond posted by the accused is hereby ordered cancelled and released." (Pp. 96-97, Record.). Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241 inviting attention to the above dismissal order and reiterating his theory of double jeopardy. On September 22, 1975, respondent court issued the impugned order sustaining the contention of double jeopardy and dismissing Case No. 5241. The prosecution's motion for reconsideration was denied in the other assailed order of October 14, 1975, respondent judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95. llcd In brief, what happened here was that when Case No. 3335 was filed in the inferior court of Janiuay, the charge against Fama Jr. had to be for slight physical injuries only, because according to the certification of the attending physician, the injuries suffered by the offended party Viajar, would require medical attendance from 5 to 9 days only "baring complications." Indeed, when the complaint was filed on April 15, 1975, only three days had passed since the incident in which the injuries were sustained took place, and there were yet no indications of a graver injury or consequence to be suffered by said offended party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face of Viajar had already healed, that the alleged deformity became apparent. Now, expert evidence is not needed for anyone to understand that the scar or deformity that would be left by a wound on the face of a person cannot be predetermined. On the other hand, whether or not there is actually a deformity on the face of Viajar is a question of fact that has to be determined by the trial court. The only issue We are to resolve here is whether or not the additional allegation of deformity in the information in Case No. 5241 constitutes a supervening element which

16

should take this case out of the ruling in People vs. Silva cited by respondent court. In Silva, mere was no question that the extent of the damage to property and physical injuries suffered by the offended parties therein were already existing and known when the prior minor case was prosecuted. What is controlling then in the instant case is Melo vs. People, 85 Phil. 766, in which it was held: "This rule of identity does not apply, however, when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with physical injuries and after conviction the injured dies, the charge of homicide against the same accused does not put him twice in jeopardy." So also is People vs. Yorac, 42 SCRA, 230, to the following effect: "Stated differently, if after the first prosecution 'a new fact supervenes' on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, 'the accused cannot be said to be in second jeopardy if indicted for the new offense.'" In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a supervening fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held: LexLib "No finding was made in the first examination that the injuries had caused deformity and the loss of the use of the right hand. As nothing was mentioned in the first medical certificate about the deformity and the loss of the use of the right hand, we presumed that such fact was not apparent or could have been discernible at the time the first examination was made. The course (not the length) of the healing of an injury may not be determined before hand; it can only be definitely known after the period of healing has ended. That is the reason why the court considered that there was a supervening fact occurring since the filing of the original information." In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for respondent court to have dismissed Criminal Case No. 5241. ACCORDINGLY, the orders of September 22, 1976 and October 14, 1975 herein complained of are hereby set aside and respondent court is ordered to proceed with the trial and judgment thereof according to law. Costs against private respondent Fama Jr. Fernando (Chairman), Antonio, Aquino and Concepcion Jr., JJ., concur.

17

[G.R. No. L-45129. March 6, 1987.] PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents. DECISION FELICIANO, J p: In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration. LLpr On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter." 3 On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows: "The undersigned, Assistant City Fiscal accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency."

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. cdrep Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch II, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: "The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, Ibaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16." The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: "The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash. In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc." (emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (italics supplied), it was meant to include the

18

P41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations. When, therefore, he was arraigned and he faced the indictment before the Civil Court, he had already been exposed or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P41,062.16." (Emphases and parentheses in the original). A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976. On 1 December 1976, the present Petition for Certiorari and Mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People. The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas. Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance which read as follows:. "Section 3. Connection and Installation: "a) ....

"1. 2. 3. 4. and

That personal property be taken; That the personal property (taken) belongs to another; That the taking be done with intent of gain; That the taking be done without the consent of the owner;

5. That the taking be accomplished without violence against or intimidation of persons or force upon things." 6 The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: "1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; 3. Under-reading of electrical consumption; and

4. By tightening the screw of the rotary blade to slow down the rotation of the same." 7 The petitioner concludes that: "The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information." 8 The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved - which reads as follows: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." (Emphasis supplied; Article IV (22),1973 Constitution) 9 and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street."

(b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance." would show that: "The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code." 5 The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. cdrep In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are:

19

Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: prLL "To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the court of first instance is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other, as in the Diaz case. (Emphases in the original). Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other

hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein." Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged: the constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. LLjur The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never be. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13 The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the

20

same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. LLpr In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing his electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The identity of offenses that must be shown need not be absolute identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen, et al., 88 Phil. 51 (1951): "While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission by simply adding or subtracting essential elements. Under the theory of appellant the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin." (88 Phil. at 53; emphases supplied). By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find. It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case. cdphil The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized electrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17 ) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence. WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED. Yap, Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ ., concur. Cruz, J ., took no part, having been a member of the law offices representing respondents, until his appointment to the Supreme Court.

21

CO vs. HRET Facts: The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The congressional election for the second district of Northern Samar was held. Among the candidates who vied for the position of representative in the second legislative district are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar. The petitioners filed election protests on the grounds that Jose Ong, Jr. is not a natural born citizen of the Philippines and not a resident of the second district of Northern Samar. Issue: Whether or not Jose Ong, Jr. is a citizen of the Philippines. Held: Yes. In the year 1895, the private respondents grandfather, Ong Te, arrived in the Philippines from China and established his residence in the municipality of Laoang, Samar. The father of the private respondent, Jose Ong Chuan was born in China in 1905 but was brought by Ong Te to Samar in the year 1915, he filed with the court an application for naturalization and was declared a Filipino citizen. In 1984, the private respondent married a Filipina named Desiree Lim. For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and voted there during those elections. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural born citizens. Besides, private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. On the issue of residence, it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. To require him to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements.
[G.R. Nos. 92191-92. July 30, 1991.] ANTONIO Y. CO, petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES and JOSE ONG, JR., respondents. [G.R. Nos. 92202-03. July 30, 1991.] SIXTO T. BALANQUIT, JR., petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES and JOSE ONG, JR., respondents. Hechanova & Associates for petitioner Co. Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.

SYLLABUS 1. CONSTITUTIONAL LAW; ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND HOUSE OF SENATE; SOLE JUDGES OF ALL CONTESTS RELATING TO ELECTION, RETURNS AND QUALIFICATIONS OF THEIR RESPECTIVE MEMBERS. The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualifications of their respective members (See Article VI, Section 17, Constitution). The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin vs. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive. And that, " . . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." 2. ID.; ID.; JUDGMENTS THEREOF AS A RULE BEYOND JUDICIAL INTERFERENCE; EXCEPTION; ARBITRARY AND IMPROVIDENT USE OF POWER RESULTING TO DENIAL OF DUE PROCESS. In the case of Robles vs. HRET (181 SCRA 780 [1980]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." In the leading case of Morrero vs. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action. 3. ID.; ID.; ID.; APPLIED IN CASE AT BAR. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide (See Marcos vs. Manglapus, 177 SCRA 668 [1989]). It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature (Angara vs. Electoral Commission, 63 Phil. 139 [1936]). In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has placed it (See Veloso vs. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]).

22

4. ID.; SUPREME COURT; EXPANDED JURISDICTION UNDER 1987 CONSTITUTION. The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within bounds of the Constitution (See Article VIII, Section 1, Constitution). Yet, in the exercise thereof, the Court is to merely check whether or not the government branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. 5. ID.; CONSTITUTIONAL PROVISIONS; HOW CONSTRUED; SPIRIT AND INTENDMENT MUST PREVAIL. In construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice (Casela vs. Court of Appeals, 35 SCRA 279 [1970]). A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof (Jarrolt vs. Mabberly, 103 U.S. 580). In the words of the Court in the case of J.M. Tuazon vs. LTA (31 SCRA 413 [1970]); "To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically, for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal . . . ." 6. ID.; CITIZENSHIP; SECTION 1, PARAGRAPH 3 OF ARTICLE IV OF 1987 CONSTITUTION; CONSTRUED. Article IV of the Constitution provides: "Section 1. The following 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 . . . Section 2. Natural-born Citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens." The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed in equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution. 7. ID.; ID.; SECTION 2 OF ARTICLE IV OF THE 1987 CONSTITUTION; ELECTION OF CITIZENSHIP; APPLIES ONLY TO THOSE BORN OF FILIPINO MOTHER AND ALIEN FATHER BUT NOT TO ONE WHOSE FATHER HAS BEEN NATURALIZED WHEN MINOR WAS ONLY NINE (9) YEARS OF AGE. There is no dispute

that respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship in spite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. 8. ID.; ID.; ID.; ID.; CASE OF IN RE: FLORENCIO MALLARE (59 SCRA 45 [1974]) APPLIES IN CASE AT BAR. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held: "Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship." The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The filing of a sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons. 9. ID.; ID.; AN ATTACK THERETO MAY ONLY BE DONE THROUGH A DIRECT ACTION. The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisprudence, an attack on a person's citizenship may only be done through a direct action for its nullity (See Queto vs. Catolico, 31 SCRA 52 [1970]). 10. ID.; ID.; TO DECLARE THE GRANT THEREOF AS NULL AND VOID VIOLATIVE OF THE DUE PROCESS CLAUSE WHERE PERSON INVOLVED HAS BEEN LAID TO REST. To ask the Court to declare that grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET: "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not rise beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case." 11. ID.; ID.; ARTICLE 17 OF THE CIVIL CODE OF SPAIN SUBPARAGRAPH 4 THEREOF IN RELATION TO SECTION 4 OF THE PHILIPPINE BILL OF 1902, APPLIED IN CASE AT BAR. Article 17 of the Civil Code of Spain enumerates those who were considered

23

Spanish Subjects, viz: "ARTICLE 17. The following are Spaniards: . . . (4). Those without such papers, who may have acquired domicile in any town in the Monarchy." The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig vs. Republic, 83 Phil. 768 [1949]). Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place where Ong Te set up his business and acquired his real property. Ong Te falls within the meaning of subparagraph 4 of Article 17 of the Civil Code of Spain. Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place (Bouvier's Law Dictionary, Vol. II). A priori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 12. ID.; ID.; "RESIDENCE"; MEANING THEREOF UNDER THE CONSTITUTION. Under the Constitution, the term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return (Ong Huan Tin vs. Republic, 19 SCRA 966 [1967]). The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi (Ujano vs. Republic, 17 SCRA 147 [1966]). 13. ID.; ID.; ID.; ESTABLISHMENT THEREOF; OWNERSHIP OF A HOUSE NOT NECESSARY. The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co-heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case of De los Reyes vs. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. 14. ID.; ID.; ID.; TEMPORARY ABSENCE DOES NOT NECESSARILY CONNOTE CHANGE THEREOF; "ANIMUS REVERTENDI" ESTABLISHED IN CASE AT BAR. It has also been settled that 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 (Faypon vs. Quirino, 96 Phil. 294 [1954]). The private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession. There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi.

15. ID.; ID.; PROSPECTIVE JUDICIAL RECOMMENDATION; MORE HUMANE AND LESS TECHNICAL APPROACH TO CITIZENSHIP PROBLEMS. Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish. However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. 16. ID.; HOUSE OF REPRESENTATIVE; CANDIDATES; PROPERTY OWNERSHIP; NOT A QUALIFICATION. To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run (see Maquera vs. Borra, 122 Phil. 412 [1965]). 17. REMEDIAL LAW; BEST EVIDENCE RULE; EXCEPTION; ORIGINAL HAS BEEN LOST; REQUIREMENTS THEREOF TO BE ADMISSIBLE; PROPERLY LAID IN CASE AT BAR. The petitioners' sole ground in disputing that respondent was a natural-born Filipino is that the documents presented to prove it were not in compliance with the best evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body upon which the resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of the 1971 Constitutional Convention held on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P. Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found (see Government of P.I. vs. Martinez, 44 Phil. 817 [1918]). Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. PADILLA, J., dissenting: 1. CONSTITUTIONAL LAW; SUPREME COURT; JURISDICTION THEREOF; EXPANDED UNDER THE 1987 CONSTITUTION; DECISION OF HOUSE ELECTORAL TRIBUNAL SUBJECT TO JUDICIAL REVIEW. I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and

24

competence to review the questioned decision of the House Electoral Tribunal and to decide the present controversy. Article VIII, Section 1 of the 1987 Constitution provides that: "Judicial 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." The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs. Bocar (66 Phil. 429), construing Section 4, Article VI of the 1935 Constitution which provided that " . . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly." that: "The judgment rendered by the (electoral) commission in the exercise of such and acknowledged power is beyond judicial interference, except, in any event, 'upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law' (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23)." And then under the aforequoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is duty-bound to determine whether or not, in an actual controversy, 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. 2. ID.; ID.; ID.; ID.; APPLIED IN CASE AT BAR. The present controversy, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts and earnestly perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. 3. ID.; ID.; ID.; EXERCISE OF JUDICIAL REVIEW NOT VIOLATIVE OF THE PRINCIPLE OF SEPARATION OF POWERS. The Court, in reviewing the decision of the tribunal, does not assert supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. "It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36)." Moreover, it is decidedly a matter of great

public interest and concern to determine whether or not private respondent is qualified to hold so important and high a public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. 4. ID.; CITIZENSHIP; NATURAL-BORN; REQUISITE; NOT COMPLIED WITH IN CASE AT BAR. The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. 5. ID.; ID.; ID.; SECTION 15 OF THE REVISED NATURALIZATION LAW (C.A. 473); DID NOT CONFER STATUS OF NATURAL-BORN IN CASE AT BAR. While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a natural-born citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen. 6. ID.; ID.; NATURALIZATION; NATURE THEREOF; PRIVILEGE NOT A RIGHT. "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 7. ID.; ID.; ID.; PETITION; GRANT THEREOF; APPEALABLE; OATH TAKEN BEFORE EXPIRATION OF THE PERIOD OF APPEAL; IMPROPER. It is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. In Cua Sun Ke vs. Republic (159 SCRA 477), this Court held that: "Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381)." 8. ID.; ID.; NATURAL-BORN; DEFINED AND INTERPRETED UNDER THE 1987 CONSTITUTION. Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: "Naturalborn citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that: "Section 1. The following are citizens of the Philippines: . . . (3) Those born before January 17, 1973, of Filipino mothers, who elect

25

Philippine citizenship upon reaching the age of majority." It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, and to foster equality among them. 9. ID.; ID.; ELECTION THEREOF; MUST BE MADE EXPRESSLY AS PROVIDED FOR UNDER COMMONWEALTH ACT NO. 625. It is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625, Sections 1 and 2 of the Act mandate that the option to elect Philippine citizenship must be effected expressly, not impliedly. 10. ID.; ID.; ID.; CASE OF IN RE: FLORENCIO MALLARE (ADMINISTRATIVE CASE NO. 533, SEPTEMBER 12, 1974, [59 SCRA 45]) NOT APPLICABLE IN CASE AT BAR. The respondent tribunal cites In re: Florencio Mallare which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. 11. ID.; ID.; ID.; REQUISITE PROVIDED FOR UNDER COMMONWEALTH ACT NO. 625 NOT COMPLIED WITH IN CASE AT BAR. The respondent tribunal erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1 (3), Article IV of the 1987 Constitution. 12. ID.; ELECTION PROTEST; QUESTIONING ELIGIBILITY OF A CANDIDATE-ELECT; IN EFFECT A QUO WARRANTO PROCEEDING; INELIGIBILITY OF CANDIDATE-ELECT RESULTS IN NO-CHOICE. Neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district of Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal (176 SCRA 1), is controlling. There we held that Luis L. Lardizabal, who filed the quo

warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 13. ID.; ID.; PHILIPPINE BILL OF 1902; REQUIREMENTS PROVIDED THEREIN; NOT COMPLIED WITH IN CASE AT BAR. The "test," following the premises of the 1971 Constitutional Convention, is whether or not Ong Te, private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z, AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal Exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE. 14. ID.; ID.; RES JUDICATA; NOT APPLICABLE. The decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of a political body, not a court of law. And, even if we have to take such a decision as a decision of a quasi-judicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no, identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution. As held in Lee vs. Commissioners on Immigration (G.R. No. L-23446, 20 December 1971, 42 SCRA 561): " . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res judicata, hence it has to be threshed out again and again as the occasion may demand." 15. ID; SUPREMACY OF THE CONSTITUTION; MUST BE ENFORCED. It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative (Congressman) to the House of Representatives for the second district of Northern Samar, would have to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental

26

consideration in case of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they seemed and believed that he was fully eligible and qualified for the office because he is a naturalborn Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. SARMIENTO, J., concurring: 1. CONSTITUTIONAL LAW; ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES; AS SOLE JUDGE OF ALL CONTEST RELATING TO MEMBERS THEREOF; ISSUE OF CITIZENSHIP INCLUDED; BEYOND JUDICIAL INTERVENTION. The question of citizenship is a question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows: "Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman." is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better. 2. ID.; SUPREME COURT; EXPANDED JURISDICTION THEREOF; REVIEW OF FACTS NOT INCLUDED. In the case of Aratuc vs. Commission on Elections (88 SCRA 251), it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) in the sense of reviewing facts and unearthing mistakes and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, but as the Charter states, our authority is "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 not to review facts. 3. ID.; ID.; ID.; "GRAVE ABUSE OF DISCRETION" DEFINED. "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law. DECISION GUTIERREZ, JR., J p: The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of Representatives Electoral Tribunal (HRET). The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that determination, the HRET acted with grave abuse of discretion. On May 11, 1987, the congressional election for the second district of Northern Samar was held.

Among the candidates who vied for the position of representative in the second legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar. The petitioners filed election protests against the private respondent premised on the following grounds: 1) and Jose Ong, Jr. is not a natural born citizen of the Philippines;

2) Jose Ong, Jr. is not a resident of the second district of Northern Samar. The HRET, in its decision dated November 6, 1989, found for the private respondent. A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied by the HRET, in its resolution dated February 22, 1989. Hence, these petitions for certiorari. We treat the comments as answers and decide the issues raised in the petitions. ON THE ISSUE OF JURISDICTION The first question which arises refers to our jurisdiction. The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualifications of their respective members. (See Article VI, Section 17, Constitution). prLL The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz: "The use of the word 'sole' emphasizes the exclusive character of the jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral Commission under the 1935 Constitution has been described as 'intended to be as complete and unimpaired as if it had originally remained in the legislature.' (id., at p. 175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as 'full, clear and complete'. (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968] The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution." (p. 401). The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and

27

excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." (pp. 403-404) When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power? In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786) In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action. LLjur The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution) Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936]) In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition any less independent from the Court or its constitutional functions any less exclusive. The degree of judicial intervention should not be made to depend on how many

legislative members of the HRET belong to this party or that party. The test remains the same manifest grave abuse of discretion. In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court. ON THE ISSUE OF CITIZENSHIP The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land which he bought from the fruits of hard work. As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish colonial administration. The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong Te to Samar in the year 1915. Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an enduring relationship with his neighbors, resulting in his easy assimilation into the community. As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a natural born-Filipina, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to Catholic faith and practice. The couple bore eight children, one of whom is the private respondent who was born in 1948. The private respondent's father never emigrated from this country. He decided to put up a hardware store and shared and survived the vicissitudes of life in Samar. The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar of application for naturalization on February 15, 1954. LibLex On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen. On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance. Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of naturalization was issued to him. At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing his elementary education in the province of Samar. There is nothing in the records to differentiate him from other Filipinos insofar as the customs and practices of the local populace were concerned. Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the ground. Undaunted by the catastrophe, the private respondent's family constructed another one in place of their ruined house. Again, there is no showing other than that Laoang was their abode and home.

28

After completing his elementary education, the private respondent, in search for better education, went to Manila in order to acquire his secondary and college education. In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door apartment building, two doors of which were reserved for the family. The private respondent graduated from college, and thereafter took and passed the CPA Board Examinations. Since employment opportunities were better in Manila, the respondent looked for work here. He found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of natural born citizenship since it was precisely amending the article on this subject. cdll The private respondent frequently went home to Laoang, Samar, where he grew up and spent his childhood days. In 1984, the private respondent married a Filipina named Desiree Lim. For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections. The private respondent after being engaged for several years in the management of their family business decided to be of greater service to his province and ran for public office. Hence, when the opportunity came in 1987, he ran in the elections for representative in the second district of Northern Samar. Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress. Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than 7,000 votes. The pertinent portions of the Constitution found in Article IV read:. "SECTION 1, the following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of the 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.

but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz: "Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under the 1973 Constitution? Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution whether the election was done before or after January 17, 1973." (Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied). xxx "Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a natural-born Citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected Philippine Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding Officer? Fr. Bernas: yes." xxx "Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he said that the decision was designed merely to accommodate former delegate Ernesto Ang and that the definition on natural-born has no retroactive effect. Now it seems that the Reverend Father Bernas is going against this intention by supporting the amendment? Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189) xxx "Mr. Rodrigo: But this provision becomes very important because his election of Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to run for Congress . . . Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to approve that provision of section 4. Mr. Rodrigo: xxx xxx xxx xxx xxx xxx

SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural born citizens." The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987

29

I think there is a good basis for the provision because it strikes me as unfair that the Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a natural born citizen." (Records of the Constitutional Commission, Vol. 1, p. 231) xxx "Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation. Between 1935 and 1973 when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino citizens." (Records of the Constitutional Commission, Vol. 1, p. 356) The foregoing significantly reveals the intent of the framers. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. It should be noted that in construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970]) A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580) In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]: "To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically, for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal . . ." (p. 427) The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution. Cdpr The Constitutional provision in question is, therefore curative in nature. The enactment was meant to correct the inequitable and absurd xxx xxx

situation which then prevailed, and thus, render those acts valid which would have been nil at the time had it not been for the curative provisions. (See Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980]) There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. We have jurisprudence that defines "election" as both a formal and an informal process. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held: "Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship". (p. 52; emphasis supplied) The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive government agency. His profession requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. There is nothing in the records to show that he does not embrace Philippine customs and values, nothing to indicate any tinge of alien-ness, no acts to show that this country is not his natural homeland. The mass of voters of Northern Samar are fully aware of Mr. Ong's parentage. They should know him better than any member of this Court will ever know him. They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino. The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification,

30

voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons. LLjur An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21). We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that "when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship for protestee by declaring him as such." (Emphasis supplied) The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970]). To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET: "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not rise beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case." The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to determine whether or not the HRET committed abuse of authority in the exercise of its powers. Moreover, the respondent traces his natural born citizenship through his mother, not through the citizenship of his father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen. There is another reason why we cannot declare the HRET as having committed manifest grave abuse of discretion. The same issue of natural-born citizenship has already been decided by the Constitutional Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural born citizen by both bodies.

Assuming that our opinion is different from that of the Constitutional Convention, the Batasang Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion. What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen? Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th day of April 1899 and then residing in said islands and their children born subsequent thereto were conferred the status of a Filipino citizen. Was the grandfather of the private respondent a Spanish subject? Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz: "ARTICLE 17. 1. The following are Spaniards:

Persons born in Spanish territory.

2. Children born of a Spanish father or mother, even though they were born out of Spain. 3. Foreigners who may have obtained naturalization papers.

4. Those without such papers, who may have acquired domicile in any town in the Monarchy." (Emphasis supplied) The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949]) As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention, September 7,1972, p. 3) The domicile that Ong Te established m 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property. As concluded by the Constitutional Convention Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain. Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. LibLex If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) A priori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902. The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-born Filipino.

31

The petitioners' sole ground in disputing this fact is that the documents presented to prove it were not in compliance with the best evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P. Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 3435; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29) The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12, 1989, pp. 11-24) The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918]) Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the protest against the private respondent, categorically stated that he saw the disputed documents presented during the hearing of the election protest against the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9) In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states that he was presiding officer of the plenary session which deliberated on the report on the election protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list of delegates to refute Mr. Ong's having been declared a naturalborn citizen. They did not do so. Nor did they demur to the contents of the documents presented by the private respondent. They merely relied on the procedural objections respecting the admissibility of the evidence presented. The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that body. The HRET, by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the parties wished to present. Even assuming that we

disagree with their conclusions, we cannot declare their acts as committed with grave abuse of discretion. We have to keep clear the line between error and grave abuse. ON THE ISSUE OF RESIDENCE The petitioners question the residence qualification of respondent Ong. The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of 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." (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87) 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 gentlemen 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 and actual residence." (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110) The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile.

32

The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi. (Ujano v. Republic, 17 SCRA 147 [1966]) cdphil The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even up to the present. The private respondent, in the proceedings before the HRET, sufficiently established that after the fire that gutted their house in 1961, another one was constructed. Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr., November 18, 1988, p. 8) The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co-heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case of De los Reyes D. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. (Emphasis supplied) To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412 [1965]) It has also been settled that 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. (Faypon v. Quirino, 96 Phil. 294 [1954]) As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession. There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi. The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution. Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial diversity gives strength to our country. Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none. To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was

part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were ethnically more Chinese than the private respondent. Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish. However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the house of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born citizen of the Philippines and a resident of Laoang, Northern Samar.

SO ORDERED. Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur. Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

33

[G.R. No. 83882. January 24, 1989.] IN RE PETITION FOR HABEAS CORPUS OF WILLIE YU, WILLIE YU, petitioner, vs. MIRIAM DEFENSOR-SANTIAGO, BIENVENIDO P. ALANO, JR., MAJOR PABALAN, DELEO HERNANDEZ, BLODDY HERNANDEZ, BENNY REYES AND JUN ESPIRITU SANTO, respondents. Pelaez, Adriano and Gregorio and Bonifacio A. Alentajan for petitioner. Chavez, Hechanova & Lim Law Offices collaborating counsel for petitioner. Augusto Jose y. Arreza for respondents. SYLLABUS 1. CONSTITUTIONAL LAW; CITIZENSHIP; EXPRESS RENUNCIATION; A RENUNCIATION MADE KNOWN DISTINCTLY AND EXPLICITLY AND NOT LEFT TO INFERENCE OR IMPLICATION. In Board of Immigration Commissioners vs. Go Gallano, express renunciation was held to mean a renunciation that is made known distinctly and explicitly and not left to inference or implication. Petitioner, with full knowledge, and legal capacity, after having renounced Portuguese citizenship upon naturalization as a Philippine citizen resumed or reacquired his prior status as a Portuguese citizen, applied for a renewal of his Portuguese passport and represented himself as such in official documents even after he had become a naturalized Philippine citizen. Such resumption or reacquisition of Portuguese citizenship is grossly inconsistent with his maintenance of Philippine citizenship. 2. ID.; BILL OF RIGHTS; DUE PROCESS; DENIAL THEREOF OBVIATED WHEN PETITIONER WAS GIVEN BY COURT THE OPPORTUNITY TO SHOW PROOF OF CONTINUED PHILIPPINE CITIZENSHIP. Denial, if any, of due process was obviated when petitioner was given by the Court the opportunity to show proof of continued Philippine citizenship, but he has failed. 3. ID.; CITIZENSHIP; PHILIPPINE CITIZENSHIP; NOT A COMMODITY OR WARE TO BE DISPLAYED WHEN REQUIRED AND SUPPRESSED WHEN CONVENIENT. Philippine citizenship, it must be stressed, is not a commodity or ware to be displayed when required and suppressed when convenient. FERNAN, C.J., dissenting: CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; POWERS OF REVIEW OF SUPREME COURT CANNOT BE A SUBSTITUTE FOR DEMANDS THEREOF SINCE SAID COURT IS NOT A TRIER OF FACTS. The observation of Mr. Justice Hugo E. Gutierrez, Jr. in his dissenting opinion that "(c)onsidering the serious implications of de-Filipinization, the correct procedures according to law must be applied," is appropriate as it has been held that "(i)f, however, in a deportation proceeding, the alleged alien claims citizenship and supports the claim by substantial evidence, he is entitled to have his status finally determined by a judicial, as distinguished from an executive, tribunal" (3 Am Jur 2d 949 citing United States ex rel. Bilokumsky v. Tod, 263 US 149, 68 L ed 221, 44 S Ct 54; Ng Fung Ho v. White, 259 US 276, 66 Led 938, 42 S Ct 492). By this, it means a full blown trial under the more rigid rules of evidence prescribed in court proceedings. And certainly, the review powers being exercised by this Court in this case fall short of this requirement. Said powers of review cannot be a substitute for the demands of due process, particularly in the light of the well-recognized principle that this Court is not a trier of facts.

DECISION PADILLA, J p: The present controversy originated with a petition for habeas corpus filed with the Court on 4 July 1988 seeking the release from detention of herein petitioner. 1 After manifestation and motion of the Solicitor General of his decision to refrain from filing a return of the writ on behalf of the CID, respondent Commissioner thru counsel filed the return. 2 Counsel for the parties were heard in oral argument on 20 July 1988. The parties were allowed to submit marked exhibits, and to file memoranda. 3 An internal resolution of 7 November 1988 referred the case to the Court en banc. In its 10 November 1988 resolution, denying the petition for habeas corpus, the Court disposed of the pending issues of (1) jurisdiction of the CID over a naturalized Filipino citizen and (2) validity of warrantless arrest and detention of the same person. Petitioner filed a motion for reconsideration with prayer for restraining order dated 24 November 1988. 4 On 29 November 1988, the Court resolved to deny with finality the aforesaid motion for reconsideration, and further resolved to deny the urgent motion for issuance of a restraining order dated 28 November 1988. 5 Undaunted, petitioner filed a motion for clarification with prayer for restraining order on 5 December 1988. Acting on said motion, a temporary restraining order was issued by the Court on 7 December 1988. 6 Respondent Commissioner filed a motion to lift TRO on 13 December 1988, the basis of which is a summary judgment of deportation against Yu issued by the CID Board of Commissioners on 2 December 1988. 7 Petitioner also filed a motion to set case for oral argument on 8 December 1988. In the meantime, an urgent motion for release from arbitrary detention 8 was filed by petitioner on 13 December 1988. A memorandum in furtherance of said motion for release dated 14 December 1988 was filed on 15 December 1988 together with a vigorous opposition to the lifting of the TRO. cdrep The lifting of the Temporary Restraining Order issued by the Court on 7 December 1988 is urgently sought by respondent Commissioner who was ordered to cease and desist from immediately deporting petitioner Yu pending the conclusion of hearings before the Board of Special Inquiry, CID. To finally dispose of the case, the Court will likewise rule on petitioner's motion for clarification with prayer for restraining order dated 5 December 1988, 9 urgent motion for release from arbitrary detention dated 13 December 1988, 10 the memorandum in furtherance of said motion for release dated 14 December 1988, 11 motion to set case for oral argument dated 8 December 1988. 12 Acting on the motion to lift the temporary restraining order (issued on 7 December 1988) dated 9 December 1988, 13 and the vigorous opposition to lift restraining order dated 15 December 1988, 14 the Court resolved to give petitioner Yu a non-extendible period of three (3) days from notice within which to explain and prove why he should still be considered a citizen of the Philippines despite his acquisition and use of a Portuguese passport. 15 Petitioner filed his compliance with the resolution of 15 December 1988 on 20 December 1988 16 followed by an earnest request for temporary release on 22 December 1988. Respondent filed on 2 January 1989 her comment reiterating her previous motion to lift temporary restraining order. Petitioner filed a reply thereto on 6 January 1989. Petitioner's own compliance reveals that he was originally issued a Portuguese passport in 1971, 17 valid for five (5) years and renewed

34

for the same period upon presentment before the proper Portuguese consular officer. Despite his naturalization as a Philippine citizen on 10 February 1978, on 21 July 1981, petitioner applied for and was issued Portuguese Passport No. 35/81 serial N. 1517410 by the Consular Section of the Portuguese Embassy in Tokyo. Said Consular Office certifies that his Portuguese passport expired on 20 duly 1986. 18 While still a citizen of the Philippines who had renounced, upon his naturalization, "absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty" and pledged to "maintain true faith and allegiance to the Republic of the Philippines," 19 he declared his nationality as Portuguese in commercial documents he signed, specifically, the Companies registry of Tai Shun Estate Ltd. 20 filed in Hongkong sometime in April 1980. To the mind of the Court, the foregoing acts considered together constitute an express renunciation of petitioner's Philippine citizenship acquired through naturalization. In Board of Immigration Commissioners vs. Go Gallano, 21 express renunciation was held to mean a renunciation that is made known distinctly and explicitly and not left to inference or implication. Petitioner, with full knowledge, and legal capacity, after having renounced Portuguese citizenship upon naturalization as a Philippine citizen 22 resumed or reacquired his prior status as a Portuguese citizen, applied for a renewal of his Portuguese passport 23 and represented himself as such in official documents even after he had become a naturalized Philippine citizen. Such resumption or reacquisition of Portuguese citizenship is grossly inconsistent with his maintenance of Philippine citizenship. LexLib This Court issued the aforementioned TRO pending hearings with the Board of Special Inquiry, CID. However, pleadings submitted before this Court after the issuance of said TRO have unequivocally shown that petitioner has expressly renounced his Philippine citizenship. The material facts are not only established by the pleadings they are not disputed by petitioner. A rehearing on this point with the CID would be unnecessary and superfluous. Denial, if any, of due process was obviated when petitioner was given by the Court the opportunity to show proof of continued Philippine citizenship, but he has failed. While normally the question of whether or not a person has renounced his Philippine citizenship should be heard before a trial court of law in adversary proceedings, this has become unnecessary as this Court, no less, upon the insistence of petitioner, had to look into the facts and satisfy itself on whether or not petitioner's claim to continued Philippine citizenship is meritorious. Philippine citizenship, it must be stressed, is not a commodity or ware to be displayed when required and suppressed when convenient. This then resolves adverse to the petitioner his motion for clarification and other motions mentioned in the second paragraph, page 3 of this Decision. WHEREFORE, premises considered, petitioner's motion for release from detention is DENIED. Respondent's motion to lift the temporary restraining order is GRANTED. This Decision is immediately executory. SO ORDERED. Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur. Narvasa, J., concurs in the result.

35

[G.R. No. 87193. June 23, 1989.] JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J .L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent. DECISION CRUZ, J p: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the league of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo's election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. prLL Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen.

As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 270 had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. LLpr Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A, Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

36

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours, WILLIAM L. WHITTAKER Clerk by: (Sgd.) ARACELI V. BARENG Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. cdll The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to

the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: prcd Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. cdphil That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious. Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adopted state and reaffirming their allegiance to the Philippines.

37

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. LexLib It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part. Cortes, J., concurs in the result.

38

[G.R. No. 104654. June 6, 1994.] REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH 28, MANILA and JUAN G. FRIVALDO, respondents. [G.R. No. 105715. June 6, 1994.] RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. [G.R. No. 105735. June 6, 1994.] RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. SYLLABUS 1. CONSTITUTIONAL LAW; REVISED NATURALIZATION LAW; PROCEDURAL REQUIREMENTS, JURISDICTIONAL; CASE AT BAR. Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirement which he believes, even sincerely, are applicable to his case and discard those which be believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien. The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void or failure to comply with the publication and posting requirements under the Revised Naturalization Law. Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation. Compliance therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the publication and posting of the petition and the order must be in its full text for the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]). The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised Naturalization Law, particularly: (1) that the petitioner is of good moral character; (2) that he resided continuously in the Philippines for at least ten years; (3) that he is able to speak and write English and any one of the principal dialects; (4) that he will reside continuously in the Philippines from the date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a declaration of intention or if he is excused from said filing, the justification therefor. The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]). Likewise the petition is not supported by the affidavit of at least two credible persons who vouched for the good moral character of private respondent as required by Section 7 of the Revised Naturalization Law. Private respondent also failed to attach a copy of his certificate of arrival to the petition as required by Section 7 of the said law. The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the petition was set ahead of the scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2) the petition was heard within six months from the last publication of the petition; (3) petitioner was allowed to take his oath of allegiance before the finality of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting period. Private respondent is declared NOT a citizen of the Philippines and

therefore DISQUALIFIED from continuing to serve as GOVERNOR of the Province of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the Vice-Governor of the Province of Sorsogon once this decision becomes final and executory. 2. ID.; ID.; DECISION THEREON BECOMES FINAL ONLY AFTER THIRTY (30) DAYS FROM PROMULGATION. A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the Solicitor General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v. Court of First Instance of Albay, 60 SCRA 195 [1974]). 3. ID.; ID.; DECISION GRANTING NATURALIZATION SHALL BE EXECUTORY AFTER TWO (2) FROM PROMULGATION; REASON. Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until after two years from its promulgation in order to be able to observe if: (1) the applicant has left the country; (2) the applicant has dedicated himself continuously to a lawful calling or profession; (3) the applicant has not been convicted of any offense or violation of government promulgated rules; and (4) the applicant has committed any act prejudicial to the interest of the country or contrary to government announced policies. 4. REMEDIAL LAW; SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION NOT COVERED BY THE TEN (10) DAY PERIOD FOR APPEAL PRESCRIBED IN SECTION 253 OF THE OMNIBUS ELECTION CODE. In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo warranto, questioning the respondent's title and seeking to prevent him from holding office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section 253 of the Omnibus Election Code. 5. POLITICAL LAW; PUBLIC OFFICE; QUALIFICATIONS THEREON ARE CONTINUING REQUIREMENTS. We explained that "qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure; once any of the required qualification is lost, his title may be seasonably challenged." 6. ID.; ID.; ONLY FILIPINO CITIZENS CAN RUN AND BE ELECTED THERETO. Petitioner's argument, that to unseat him will frustrate the will of the electorate, is untenable. Both the Local Government Code and the Constitution require that only Filipino citizens can run and be elected to public office. We can only surmise that the electorate, at the time they voted for private respondent, was of the mistaken belief that he had legally reacquired Filipino citizenship. 7. ID.; ELECTIONS; WHERE THE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS DISQUALIFIED, THE CANDIDATE WHO GARNERED THE SECOND HIGHEST NUMBER OF VOTES IS NOT ENTITLED TO BE DECLARED WINNER. Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered stray and that he, being the candidate obtaining the second highest number of votes, be declared winner. In Labo, Jr. v. COMELEC , 176 SCRA 1 (1989), we ruled that where the candidate who obtained the highest number of votes is later declared to be disqualified to hold the office to which he was elected, the candidate who garnered the second highest number of votes is not entitled to be declared winner (See also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]). DECISION

39

QUIASON, J p: In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared private respondent, Juan G. Frivaldo, an alien and therefore disqualified from serving as Governor of the Province of the Sorsogon. Once more, the citizenship of private respondent is put in issue in these petitions docketed as G.R. No. 104654, G.R. No. 105715 and G.R. No. 105735. The petitions were consolidated since they principally involved the same issues and parties. LibLex I G.R. No. 104654 This is a petition for certiorari under Rule 45 of the Revised Rules of Court in relation to R.A. No. 5440 and Section 25 of the Interim Rules, filed by the Republic of the Philippines: (1) to annul the Decision dated February 27, 1992 of the Regional Trial Court, Branch 28, Manila, in SP Proc. No. 91-58645, which re-admitted private respondent as a Filipino citizen under the Revised Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of allegiance taken by private respondent on February 27, 1992. On September 20, 1991, petitioner filed a petition for naturalization captioned: "In the Matter of Petition of Juan G. Frivaldo to be Readmitted as a Citizen of the Philippines under Commonwealth Act No. 63" (Rollo, pp. 17-23). In an Order dated October 7, 1991 respondent Judge set the petition for hearing on March 16, 1992, and directed the publication of the said order and petition in the Official Gazette and a newspaper of general circulation, for three consecutive weeks, the last publication of which should be at least six months before the said date of hearing. The order further required the posting of a copy thereof and the petition in a conspicuous place in the Office of the Clerk of Court of the Regional Trial Court, Manila (Rollo, pp. 24- 26). On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of Schedule," where he manifested his intention to run for public office in the May 1992 elections. He alleged that the deadline for filing the certificate of candidacy was March 15, one day before the scheduled hearing. He asked that the hearing set on March 16 be cancelled and be moved to January 24 (Rollo, pp. 27-28). The Motion was granted in an Order dated January 24, 1992, wherein the hearing of the petition was moved to February 21, 1992. The said order was not published nor a copy thereof posted. cdrep On February 21, the hearing proceeded with private respondent as the sole witness. He submitted the following documentary evidence: (1) Affidavit of Publication of the Order dated October 7, 1991 issued by the publisher of The Philippine Star (Exh. "A"); (2) Certificate of Publication of the order issued by the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by the National Press Club with private respondent's picture (Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by the Rotary Club of Davao (Exh. "D"); (6) Photocopy of a Plaque of Appreciation issued by the Republican College, Quezon City (Exh. "E"); (7) Photocopy of a Plaque of Appreciation issued by the DavaoBicol Association (Exh. "F"); (8) Certification issued by the Records Management and Archives Office that the record of birth of private respondent was not on file (Exh. "G"); and (9) Certificate of Naturalization issued by the United States District Court (Exh. "H").

Six days later, on February 27, respondent Judge rendered the assailed Decision, disposing as follows: "WHEREFORE, the petition is GRANTED, Petitioner JUAN G. FRIVALDO, is re-admitted as a citizen of the Republic of the Philippines by naturalization, thereby vesting upon him, all the rights and privileges of a natural born Filipino citizen" (Rollo, p. 33).

On the same day, private respondent was allowed to take his oath of allegiance before respondent Judge (Rollo, p. 34). On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for Reconsideration" was filed by Quiterio H. Hermo. He alleged that the proceedings were tainted with jurisdictional defects, and prayed for a new trial to conform with the requirements of the Naturalization Law. After receiving a copy of the Decision on March 18, 1992, the Solicitor General interposed a timely appeal directly with the Supreme Court. G.R. No. 105715 This is a petition for certiorari, mandamus with injunction under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution with prayer for temporary restraining order filed by Raul R. Lee against the Commission on Elections (COMELEC) and private respondent, to annul the en banc Resolution of the COMELEC, which dismissed his petition docketed as SPC Case No. 92-273. The said petition sought to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon. Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP) for the position of governor of the Province of Sorsogon in the May 1992 elections. Private respondent was the official candidate of the Lakas-National Union of Christian Democrats (LakasNUCD) for the same position. Private respondent was proclaimed winner on May 22, 1992. On June 1, petitioner filed a petition with the COMELEC to annul the proclamation of private respondent as Governor-elect of the Province of Sorsogon on the grounds: (1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; (2) that private respondent is an alien, whose grant of Philippine citizenship is being questioned by the State in G.R. No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner further prayed that the votes cast in favor of private respondent be considered as stray votes, and that he, on the basis of the remaining valid votes cast, be proclaimed winner. llcd On June 10, the COMELEC issued the questioned en banc resolution which dismissed the petition for having been filed out of time, citing Section 19 of R.A. No. 7166. Said section provides that the period to appeal a ruling of the board of canvassers on questions affecting its composition or proceedings was three days. In this petition, petitioner argues that the COMELEC acted with grave abuse of discretion when it ignored the fundamental issue of private respondent's disqualification in the guise of technicality. Petitioner claims that the inclusion of private respondent's name in the list of registered voters in Sta. Magdalena, Sorsogon was invalid because at the time he registered as a voter in 1987, he was an American citizen.

40

Petitioner further claims that the grant of Filipino citizenship to private respondent is not yet conclusive because the case is still on appeal before us. Petitioner prays for: (1) the annulment of private respondent's proclamation as Governor of the Province of Sorsogon; (2) the deletion of private respondent's name from the list of candidates for the position of governor; (3) the proclamation of the governor-elect based on the remaining votes, after the exclusion of the votes for private respondent; (4) the issuance of a temporary restraining order to enjoin private respondent from taking his oath and assuming office; and (5) the issuance of a writ of mandamus to compel the COMELEC to resolve the pending disqualification case docketed as SPA Case No. 92-016, against private respondent. LLphil G.R. No. 105735

the same is not yet final and executory (Rollo, p. 63). However, it submits that the issue of disqualification of a candidate is not among the grounds allowed in a pre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said petition was filed out of time. The COMELEC contends that the preparation for the elections occupied much of its time, thus its failure to immediately resolve SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of the COMELEC Rules of Procedure, it is excused from deciding a disqualification case within the period provided by law for reasons beyond its control. It also assumed that the same action was subsequently abandoned by petitioner when he filed before it a petition for quo warranto docketed as EPC No. 92-35. The quo warranto proceedings sought private respondent's disqualification because of his American citizenship. LLjur II

This is a petition for mandamus under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the Constitution, with prayer for temporary restraining order. The parties herein are identical with the parties in G.R. No. 105715.

G.R. No. 104654 We shall first resolve the issue concerning private respondent's citizenship. In his comment to the State's appeal of the decision granting him Philippine citizenship in G.R. No. 104654, private respondent alleges that the precarious political atmosphere in the country during Martial Law compelled him to seek political asylum in the United States, and eventually to renounce his Philippine citizenship. He claims that his petition for naturalization was his only available remedy for his reacquisition of Philippine citizenship. He tried to reacquire his Philippine citizenship through repatriation and direct act of Congress. However, he was later informed that repatriation proceedings were limited to army deserters or Filipino women who had lost their citizenship by reason of their marriage to foreigners (Rollo, pp. 49-50). His request to Congress for sponsorship of a bill allowing him to reacquire his Philippine citizenship failed to materialize, notwithstanding the endorsement of several members of the House of Representatives in his favor (Rollo, p. 51). He attributed this to the maneuvers of his political rivals. He also claims that the re-scheduling of the hearing of the petition to an earlier date, without publication, was made without objection from the Office of the Solicitor General. He makes mention that on the date of the hearing, the court was jampacked. LLphil It is private respondent's posture that there was substantial compliance with the law and that the public was well-informed of his petition for naturalization due to the publicity given by the media. Anent the issue of the mandatory two-year waiting period prior to the taking of the oath of allegiance, private respondent theorizes that the rationale of the law imposing the waiting period is to grant the public an opportunity to investigate the background of the applicant and to oppose the grant of Philippine citizenship if there is basis to do so. In his case, private respondent alleges that such requirement may be dispensed with, claiming that his life, both private and public, was wellknown. Private respondent cites his achievements as a freedom fighter and a former Governor of the Province of Sorsogon for six terms. The appeal of the Solicitor General in behalf of the Republic of the Philippines is meritorious. The naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an anomaly. LLphil Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is duty bound

In substance, petitioner prays for the COMELEC's immediate resolution of SPA Case No. 92-016, which is a petition for the cancellation of private respondent's certificate of candidacy filed on March 23, 1992 by Quiterio H. Hermo, the intervenor in G.R. No. 104654 (Rollo, p. 18). The petition for cancellation alleged: (1) that private respondent is an American citizen, and therefore ineligible to run as candidate for the position of governor of the Province of Sorsogon; (2) that the trial court's decision re-admitting private respondent as a Filipino citizen was fraught with legal infirmities rendering it null and void; (3) that assuming the decision to be valid, private respondent's oath of allegiance, which was taken on the same day the questioned decision was promulgated, violated Republic Act No. 530, which provides for a two-year waiting period before the oath of allegiance can be taken by the applicant; and (4) that the hearing of the petition on February 27, 1992, was held less than four months from the date of the last publication of the order and petition. The petition prayed for the cancellation of private respondent's certificate of candidacy and the deletion of his name from the list of registered voters in Sta. Magdalena, Sorsogon. In his answer to the petition for cancellation, private respondent denied the allegations therein and averred: (1) that Quiterio H. Hermo, not being a candidate for the same office for which private respondent was aspiring, had no standing to file the petition; (2) that the decision readmitting him to Philippine citizenship was presumed to be valid; and (3) that no case had been filed to exclude his name as a registered voter. LLjur Raul R. Lee intervened in the petition for cancellation of private respondent's certificate of candidacy (Rollo, p. 37). On May 13, 1992, said intervenor urged the COMELEC to decide the petition for cancellation, citing Section 78 of the Omnibus Election Code, which provides that all petitions on matters involving the cancellation of a certificate of candidacy must be decided "not later than fifteen days before election," and the case of Alonto v. Commission on Elections, 22 SCRA 878 (1968), which ruled that all pre-proclamation controversies should be summarily decided (Rollo, p. 50). The COMELEC concedes that private respondent has not yet reacquired his Filipino citizenship because the decision granting him

41

to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the requirements which he believes, even sincerely, are applicable to his case and discard those which be believes are inconvenient or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien. The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted, the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and posting requirements under the Revised Naturalization Law. Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the Official Gazette and a newspaper of general circulation. Compliance therewith is jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the publication and posting of the petition and the order must be in its full text for the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]). The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised Naturalization Law, particularly: (1) that the petitioner is of good moral character; (2) that he resided continuously in the Philippines for at least ten years; (3) that he is able to speak and write English and any one of the principal dialects; (4) that he will reside continuously in the Philippines from the date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a declaration of intention or if he is excused from said filing, the justification therefor. The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]). Likewise the petition is not supported by the affidavit of at least two credible persons who vouched for the good moral character of private respondent as required by Section 7 of the Revised Naturalization Law. Private respondent also failed to attach a copy of his certificate of arrival to the petition as required by Section 7 of the said law. LLphil The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the petition was set ahead of the scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2) the petition was heard within six months from the last publication of the petition; (3) petitioner was allowed to take his oath of allegiance before the finality of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting period. A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the Solicitor General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v. Court of First Instance of Albay, 60 SCRA 195 [1974]). Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until after two years from its promulgation in order to be able to observe if: (1) the applicant has left the country; (2) the applicant has dedicated himself continuously to a lawful calling or profession; (3) the applicant has not been convicted of any offense or violation of government promulgated rules; and (4) the applicant has committed any act prejudicial to the

interest of the country or contrary to government announced policies. prcd Even discounting the provisions of R.A. No. 530, the courts cannot implement any decision granting the petition for naturalization before its finality. G.R. No. 105715 In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino citizen, we have to grant the petition in G.R. No. 105715 after treating it as a petition for certiorari instead of a petition for mandamus. Said petition assails the en banc resolution of the COMELEC, dismissing SPC Case No. 92-273, which in turn is a petition to annul private respondent's proclamation on three grounds: 1) that the proceedings and composition of the Provincial Board of Canvassers were not in accordance with law; 2) that private respondent is an alien, whose grant of Filipino citizenship is being questioned by the State in G.R. No. 104654; and 3) that private respondent is not a duly registered voter. The COMELEC dismissed the petition on the grounds that it was filed outside the three-day period for questioning the proceedings and composition of the Provincial Board of Canvassers under Section 19 of R.A. No. 7166. prcd The COMELEC failed to resolve the more serious issue the disqualification of private respondent to be proclaimed Governor on grounds of lack of Filipino citizenship. In this aspect, the petition is one for quo warranto. In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo warranto, questioning the respondent's title and seeking to prevent him from holding office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section 253 of the Omnibus Election Code. Furthermore, we explained that "qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure; once any of the required qualification is lost, his title may be seasonably challenged." Petitioner's argument, that to unseat him will frustrate the will of the electorate, is untenable. Both the Local Government Code and the Constitution require that only Filipino citizens can run and be elected to public office. We can only surmise that the electorate, at the time they voted for private respondent, was of the mistaken belief that he had legally reacquired Filipino citizenship. Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered stray and that he, being the candidate obtaining the second highest number of votes, be declared winner. In Labo, Jr. v. COMELEC , 176 SCRA 1 (1989), we ruled that where the candidate who obtained the highest number of votes is later declared to be disqualified to hold the office to which he was elected, the candidate who garnered the second highest number of votes is not entitled to be declared winner (See also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]). prLL G.R. No. 105735 In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the petition in G.R. No. 105735 moot and academic. WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both GRANTED while the petition in G.R. No. 105735 is DISMISSED. Private respondent is declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as GOVERNOR of the Province of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the Vice-Governor of the Province of Sorsogon once this decision becomes final and executory. No pronouncement as to costs. cdll SO ORDERED.

42

[G.R. No. 86564. August 1, 1989.] RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS LARDIZABAL, respondents. Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent. SYLLABUS 1. SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION FILED TIMELY. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the tenday period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. 2. ID.; ID.; PAYMENT OF FILING FEES NECESSARY FOR CONFERMENT OF JURISDICTION; COURT MAY ALLOW PAYMENT WITHIN A REASONABLE TIME. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, however, this Court, taking into account the special circumstances of that case, reiterated the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, this court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988. 3. CIVIL PROCEDURE; ACTION; RESOLUTION ON THE MERITS INSTEAD OF REMANDING THE CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS; AS DEMANDED BY THE DICTATES OF JUSTICE. Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 4. ID.; ID.; DOCTRINE OF RES JUDICATA NOT APPLICABLE TO QUESTIONS OF CITIZENSHIP; DEFENSE TO BE SEASONABLY INVOKED. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

5. POLITICAL LAW; NATURALIZATION; ACQUISITION OF CITIZENSHIP BY NATURALIZATION. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance. 6. ID.; CITIZENSHIP; MODES OF LOSING PHILIPPINE CITIZENSHIP. CA No. 63 enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." 7. ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN AUTOMATIC RESTORATION OF PHILIPPINE CITIZENSHIP. Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. 8. ID.; ID.; MEANS OF REACQUIRING PHILIPPINE CITIZENSHIP. Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. 9. ID.; ID.; LACK OF PHILIPPINE CITIZENSHIP ON THE DAY OF LOCAL ELECTIONS; GROUND FOR DISQUALIFICATION AS A CANDIDATE FOR MAYOR. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. He was therefore ineligible as a candidate for mayor of Baguio City under Section 42 of the Local Government Code. 10. ID.; ELECTION; QUALIFICATIONS OF CANDIDATE FOR PUBLIC OFFICE, CONTINUING REQUIREMENTS. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. 11. ID.; ELECTION; CANDIDATE OBTAINING THE SECOND HIGHEST NUMBER OF VOTES; NOT QUALIFIED TO REPLACE THE DISQUALIFIED CANDIDATE; SANTOS RULING REVERSED.

43

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. Re-examining Santos v. Commission on Elections, 137 SCRA 740 the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, which represents the more logical and democratic rule. There the Court held it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. DECISION CRUZ, J p: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. cdphil It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary' period, there is no question that this petition must be granted and the challenge abated. The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows: SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall files sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election. The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filing of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact, he says, it was filed ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date. The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26, 1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days alter its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. cdasia The petitioner forgets Taada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v.

44

Asuncion, 5 however, this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality." It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus: From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6 xxx xxx xxx

decision raised again to the Intermediate Appellate Court and from there to this Court." (p. 43) Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that: ". . . But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162). 'Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (of: Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand . . . the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality."7 xxx xxx xxx

Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8 This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. We also note in his Reply, the petitioner says: In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9 This is still another reason why the Court has seen fit to rule directly on the merits of this case. Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11 The first decision was penned by then COMELEC Chairman Vicente Santiago, Jr., with Commissioners Pabalate, Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case.

While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states: ". . . it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its

45

"Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian. The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. prLL It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the Subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 8473). and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I. . . ., renouncing all other allegiance . . . .," etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen.

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose his Australian citizenship under Section 17 of the Act. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12TH DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13 Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976. 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance." Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen.14 and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15 The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980,

E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship: (i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or

46

when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18 The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the member joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia. . . . , and to fulfill his duties as an Australian citizen." cdll The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: . . . (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.) That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect. The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the secondplacer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. LLpr Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.

47

The latest ruling of the Court on this issue is Santos v. Commission on Elections, 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26 Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes, 28 was supported by ten members of the Court, 29 without any dissent, although one reserved his vote, 30 another took no part, 31 and two others were an leave. 32 There the Court held: ". . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or noneligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City

once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED. Fernan, C . J ., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ ., concur.

48

[G.R. No. 83820. May 25, 1990.] JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner, vs. COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEA, respondents. Rufino B. Requina for petitioner. Angara, Abello, Concepcion, Regala & Cruz for private respondent. DECISION PARAS, J p:

than six months; and that he has been a registered voter in the Philippines since 1965. (pp. 107-108, Rollo) On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to proclaim the winning candidates. Having obtained the highest number of votes, private respondent was proclaimed the Provincial Governor of Cebu. Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for disqualification for not having been timely filed and for lack of sufficient proof that private respondent is not a Filipino citizen. cdrep Hence, the present petition.

Before Us is a petition for certiorari assailing the Resolution of the Commission on Elections (COMELEC) dated June 11, 1988, which dismissed the petition for the disqualification of private respondent Emilio "Lito" Osmea as candidate for Provincial Governor of Cebu Province. cdll The facts of the case are briefly as follows: On November 19, 1987, private respondent Emilio "Lito" Osmea filed his certificate of candidacy with the COMELEC for the position of Provincial Governor of Cebu Province in the January 18, 1988 local elections. On January 22, 1988, the Cebu PDP-Laban Provincial Council (CebuPDP Laban, for short), as represented by petitioner Jose B. Aznar in his capacity as its incumbent Provincial Chairman, filed with the COMELEC a petition for the disqualification of private respondent on the ground that he is allegedly not a Filipino citizen, being a citizen of the United States of America. On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate issued by the then Immigration and Deportation Commissioner Miriam Defensor Santiago certifying that private respondent is an American and is a holder of Alien Certificate of Registration (ACR) No. B-21448 and Immigrant Certificate of Residence (ICR) No. 133911, issued at Manila on March 27 and 28, 1958, respectively. (Annex "B-1"). The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to temporarily enjoin the Cebu Provincial Board of Canvassers from tabulating/canvassing the votes cast in favor of private respondent and proclaiming him until the final resolution of the main petition. Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to continue canvassing but to suspend the proclamation. At the hearing before the COMELEC (First Division), the petitioner presented the following exhibits tending to show that private respondent is an American citizen: Application for Alien Registration Form No. 1 of the Bureau of Immigration signed by private respondent dated November 21, 1979 (Exh. "B"); Alien Certificate of Registration No. 015356 in the name of private respondent dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines dated November 21, 1979 (Exh. "D"); Immigration Certificate of Clearance dated January 3, 1980 (Exh. "E"). (pp. 117-118, Rollo). Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio D. Osmea, a Filipino and son of the late President Sergio Osmea, Sr.; that he is a holder of a valid and subsisting Philippine Passport No. 0855103 issued on March 25, 1987; that he has been continuously residing in the Philippines since birth and has not gone out of the country for more

The petition is not meritorious. There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: "(1) Before election, pursuant to Section 78 thereof which provides that: 'Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty five days from the time of the filing of the certificate of candidacy and shall be decided, after the notice and hearing, not later than fifteen days before the election. and "(2) After election, pursuant to Section 253 thereof, viz:

'Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of inelligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election." The records show that private respondent filed his certificate of candidacy on November 19, 1987 and that the petitioner filed its petition for disqualification of said private respondent on January 22, 1988. Since the petition for disqualification was filed beyond the twenty five-day period required in Section 78 of the Omnibus Election Code, it is clear that said petition was filed out of time. The petition for the disqualification of private respondent cannot also be treated as a petition for quo warranto under Section 253 of the same Code as it is unquestionably premature, considering that private respondent was proclaimed Provincial Governor of Cebu only on March 3, 1988. However, We deem it is a matter of public interest to ascertain the respondent's citizenship and qualification to hold the public office to which he has been proclaimed elected. There is enough basis for us to rule directly on the merits of the case, as the COMELEC did below. Petitioner's contention that private respondent is not a Filipino citizen and, therefore, disqualified from running for and being elected to the

49

office of Provincial Governor of Cebu, is not supported by substantial and convincing evidence. In the proceedings before the COMELEC, the petitioner failed to present direct proof that private respondent had lost his Filipino citizenship by any of the modes provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. From the evidence, it is clear that private respondent Osmea did not lose his Philippine citizenship by any of the three mentioned hereinabove or by any other mode of losing Philippine citizenship. In concluding that private respondent had been naturalized as a citizen of the United States of America, the petitioner merely relied on the fact that private respondent was issued alien certificate of registration and was given clearance and permit to re-enter the Philippines by the Commission on Immigration and Deportation. Petitioner assumed that because of the foregoing, the respondent is an American and "being an American", private respondent "must have taken and sworn to the Oath of Allegiance required by the U.S. Naturalization Laws." (p. 81, Rollo) Philippine courts are only allowed to determine who are Filipino citizens and who are not. Whether or not a person is considered an American under the laws of the United States does not concern Us here. By virtue of his being the son of a Filipino father, the presumption that private respondent is a Filipino remains. It was incumbent upon the petitioner to prove that private respondent had lost his Philippine citizenship. As earlier stated, however, the petitioner failed to positively establish this fact. The cases of Juan Gallanosa Frivaldo v. COMELEC et al., (G.R. No. 87193, June 21, 1989) and Ramon L. Labo v. COMELEC et al. (G.R. No. 86564, August 1, 1989) are not applicable to the case at bar. In the Frivaldo case, evidence shows that he was naturalized as a citizen of the United States in 1983 per certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. Frivaldo expressly admitted in his answer that he was naturalized in the United States but claimed that he was forced to embrace American citizenship to protect himself from the persecution of the Marcos government. The Court, however, found this suggestion of involuntariness unacceptable, pointing out that there were many other Filipinos in the United States similarly situated as Frivaldo who did not find it necessary to abandon their status as Filipinos. Likewise, in the case of Labo, records show that Labo was married to an Australian citizen and that he was naturalized as an Australian citizen in 1976, per certification from the Australian Government through its Consul in the Philippines. This was later affirmed by the Department of Foreign Affairs. The authenticity of the above evidence was not disputed by Labo. In fact, in a number of sworn statements, Labo categorically declared that he was a citizen of Australia. LexLib In declaring both Frivaldo and Labo not citizens of the Philippines, therefore, disqualified from serving as Governor of the Province of Sorsogon and Mayor of Baguio City, respectively, the Court considered the fact that by their own admissions, they are indubitably aliens, no

longer owing any allegiance to the Republic of the Philippines since they have sworn their total allegiance to a foreign state. In the instant case, private respondent vehemently denies having taken the oath of allegiance of the United States (p. 81, Rollo). He is a holder of a valid and subsisting Philippine passport and has continuously participated in the electoral process in this country since 1963 up to the present, both as a voter and as a candidate (pp. 107108, Rollo). Thus, private respondent remains a Filipino and the loss of his Philippine citizenship cannot be presumed. In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that because Osmea obtained Certificates of Alien Registration as an American citizen, the first in 1958 when he was 24 years old and the second in 1979, he, Osmea should be regarded as having expressly renounced Philippine citizenship. To Our mind, this is a case of non sequitur (It does not follow). Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. Thus, by way of analogy, if a person who has two brothers named Jose and Mario states or certifies that he has a brother named Jose, this does not mean that he does not have a brother named Mario; or if a person is enrolled as student simultaneously in two universities, namely University X and University Y, presents a Certification that he is a student of University X, this does not necessarily mean that he is not still a student of University Y. In the case of Osmea, the Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express", it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied ". Parenthetically, the statement in the 1987 Constitution that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law" (Art. IV, Sec. 5) has no retroactive effect. And while it is true that even before the 1987 Constitution, Our country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has not yet been enacted. WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of the COMELEC is hereby AFFIRMED. SO ORDERED. Narvasa, Bidin, Grio-Aquino, Medialdea, Regalado and Feliciano, JJ., concur. Fernan, C.J., took no part Gutierrez, Jr., J., My stand in the cases of Willie Yu v. Miriam Defensor Santiago, et al. (G.R. No. 83882, January 24, 1989) and Ramon Labo, Jr. v. Commission on Elections (G.R. 86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this case because one of the principal counsels is my relative by affinity within the fourth civil degree. Gancayco, J., is on official leave. Cortes, J., concurs in the result.

50

[G.R. No. 135083. May 26, 1999.] ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. Balase, Tamase, Alampay Law Office for petitioner. Siguion Reyna, Montecillo & Ongsiako for private respondent. SYNOPSIS Petitioner Mercado and private respondent Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. The Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and under Sec. 40 of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. Private respondent filed a motion for reconsideration. The motion remained pending until after the election. The board of canvassers tabulated the votes but suspended the proclamation of the winner. Petitioner sought to intervene in the case for disqualification. COMELEC en banc reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC en banc, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC en banc and to declare the private respondent disqualified to hold the office of the vice mayor of Makati. cdasia On the issue of whether the petitioner has personality to bring this suit considering that he was not the original party in the disqualification case, the Supreme Court ruled that under Sec. 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. As regards the issue of citizenship, the Court ruled that by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. SYLLABUS 1. POLITICAL LAW; ELECTORAL REFORMS LAW OF 1987 (R.A. No. 6646); INTERVENTION, ALLOWED IN PROCEEDINGS FOR DISQUALIFICATION EVEN AFTER ELECTION IF THERE HAS BEEN NO FINAL JUDGMENT RENDERED; CASE AT BAR. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment." The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo vs. COMELEC, reiterated in several cases, only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for leave to File Intervention" on May 20, 1998, there had been no

proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under Section 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. 2. ID.; CITIZENSHIP; DUAL CITIZENSHIP; DISTINGUISHED FROM DUAL ALLEGIANCE. Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, Section 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." 3. ID.; ID.; ID.; ID.; RATIONALE. In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, Section 40(d) and in R.A. No. 7854, Section 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as

51

persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. 4. ID.; ID.; FILING OF THE CERTIFICATE OF CANDIDACY SUFFICED TO RENOUNCE AMERICAN CITIZENSHIP; CASE AT BAR. By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo vs. COMELEC it was held: It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship long before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." On this point, we quote from the assailed Resolution dated December 19, 1995: "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. Until the filing of his certificate of candidacy on March 21, 1998, private respondent had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied." To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent's oath of allegiance to the Philippines, when

considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. acCITS DECISION MENDOZA, J p: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano Ernesto S. Mercado 100,894 Gabriel V. Daza III 54,275 1 The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELEC's Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for ViceMayor of Makati City. 103,853

52

On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's motion was opposed by private respondent. The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. 5 The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli. He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty-three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety-four (100,894) votes, or a margin of two thousand nine hundred fifty-nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy-five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondent's certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and

proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. cdasia This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and, 2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998. B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati; C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati. We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to intervene granted. I. PETITIONER'S RIGHT TO BRING THIS SUIT Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: SECTION 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. xxx xxx xxx

SECTION 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the

53

private respondent be ultimately disqualified by final and executory judgment." The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private respondent's alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City. II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office." To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. 9 For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: 10 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance and I reiterate a dual allegiance is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all. What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the People's Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council.

54

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

different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." 12 By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: 13 SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a subject

55

or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic, 15 it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic. III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that now he is solely a Philippine national. Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority. In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath: 6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN xxx xxx xxx

OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17 It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship-long before May 8, 1995. At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." On this point, we quote from the assailed Resolution dated December 19, 1995: "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioner's contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC 18 applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships.

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR. 11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. 12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION

56

Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied." To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. DefensorSantiago, 19 we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. cdasia WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Panganiban and Purisima, JJ., are on leave. Pardo, J., took no part.

57

[G.R. No. 142840. May 7, 2001.] ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents. Brillantes Nachura Navarro Jumamil Arcilla Escolin & Martinez Law Offices for petitioner. The Solicitor General for public respondent. Romulo B. Macalintal for private respondent. SYNOPSIS Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution. On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, Section 1(4), a Filipino citizen may lose his citizenship by, among others, "rendering service to or accepting commission in the armed forces of a foreign country." On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630. He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won over petitioner Antonio Bengson III. Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen. The HRET rendered its decision dismissing the petition for quo warranto and declaring respondent Cruz the duly elected Representative of the Second District of Pangasinan. The HRET likewise denied petitioner's motion for reconsideration. Petitioner thus filed the present petition for certiorari assailing the HRET's decision. The issue now before the Supreme Court is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship. AcIaST According to the Supreme Court, a citizen who is not a naturalized Filipino, i.e., 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. The petition was dismissed by the Court. SYLLABUS 1. CONSTITUTIONAL LAW; CITIZENSHIP; WHO ARE FILIPINO CITIZENS. The 1987 Constitution enumerates who are Filipino citizens as follows: (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. TCIHSa 2. ID.; ID.; KINDS OF CITIZENS. There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. 3. ID.; ID.; ID.; NATURAL BORN AND NATURALIZED CITIZENS, DEFINED. As defined in the same Constitution, naturalborn citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. To be naturalized, an applicant has to prove that he possesses all the qualifications and none of the disqualifications provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. 4. ID.; ID.; MODES OF REACQUISITION THEREOF BY A FORMER CITIZEN. Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act No. 63 (C.A. No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reaquiring Philippine citizenship is governed by Commonwealth Act No. 63. Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications and none of the disqualifications mentioned in Section 4 of C.A. 473. Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces; (2) service in the armed forces of the allied forces in World War II; (3) service in the Armed Forces of the United States at any other time; (4) marriage of a Filipino woman to an alien; and (5) political and economic necessity. DTAaCE 5. ID.; ID.; ID.; REPATRIATION DISTINGUISHED FROM NATURALIZATION. As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. In Angat v. Republic, we held: . . . . Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. 6. ID.; ID.; ID.; ID.; RESULTS IN THE RECOVERY OF THE ORIGINAL NATIONALITY. Moreover, repatriation results in the

58

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. 7. REMEDIAL LAW; JURISDICTION; COURT HAS NO CORRECTIVE POWER NOR POWER TO ANNUL DECISION OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET). The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgment for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision. DECSIT PANGANIBAN, J., Concurring Opinion: 1. CONSTITUTIONAL LAW; CITIZENSHIP; REPATRIATION; AS RECOVERY OF ORIGINAL CITIZENSHIP; CONSTRUED. Repatriation is simply the recovery of original citizenship. Under Section 1 of RA 2630, a person "who ha[s] lost his citizenship" may "reacquire" it by "taking an oath of allegiance to the Republic of the Philippines." Former Senate President Jovito R. Salonga, a noted authority on the subject, explains this method more precisely in his treatise, Private International Law. He defines repatriation as "the recovery of the original nationality upon fulfillment of certain conditions." Webster buttresses this definition by describing the ordinary or common usage of repatriate, as "to restore or return to one's country of origin, allegiance, or citizenship; . . . ." In relation to our subject matter, repatriation, then, means restoration of citizenship. It is not a grant of a new citizenship, but a recovery of one's former or original citizenship. To "reacquire" simply means "to get back as one's own again." Ergo, since Cruz, prior to his becoming a US citizen, was a natural-born Filipino citizen, he "reacquired" the same status upon repatriation. To rule otherwise that Cruz became a non-natural-born citizen would not be consistent with the legal and ordinary meaning of repatriation. It would be akin to naturalization, which is the acquisition of a new citizenship. "New," because it is not the same as that with which he has previously been endowed. 2. ID.; ID.; CLASSES OF CITIZENS; DISTINGUISHED. There are generally two classes of citizens: (1) natural-born citizens and (2) naturalized citizens. While CA 63 provides that citizenship may also be acquired by direct act of the Legislature, I believe that those who do become citizens through such procedure would properly fall under the second category (naturalized). Naturalized citizens are former aliens or foreigners who had to undergo a rigid procedure, in which they had to adduce sufficient evidence to prove that they possessed all the qualifications and none of the disqualifications provided by law in order to become Filipino citizens. In contrast, as stated in the early case Roa v. Collector of Customs, a natural-born citizen is a citizen "who has become such at the moment of his birth." CSDAIa 3. ID.; ID.; NATURAL-BORN CITIZEN; SCOPE EXPANDED IN THE PRESENT CONSTITUTION; EFFECT THEREOF. The assailed HRET Decision, penned by Mr. Justice Vicente V. Mendoza, explains clearly who are considered natural-born Filipino citizens. He traces the concept as first defined in Article III of the 1973 Constitution, which simply provided as follows: "Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." Under the

above definition, there are two requisites in order that a Filipino citizen may be considered "natural-born": (1) one must be a citizen of the Philippines from birth, and (2) one does not have to do anything to acquire or perfect one's Philippine citizenship. Thus, under the 1973 Constitution, excluded from the class of "natural-born citizens" were (1) those who were naturalized and (2) those born before January 17, 1973, of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. The present Constitution, however, has expanded the scope of natural-born citizens to include "[t]hose who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof," meaning those covered under class (2) above. Consequently, only naturalized Filipino citizens are not considered natural-born citizens. Premising therefrom, respondent being clearly and concededly not naturalized is, therefore, a natural-born citizen of the Philippines. With respect to repatriates, since the Constitution does not classify them separately, they naturally reacquire their original classification before the loss of their Philippine citizenship. In the case of Congressman Teodoro C. Cruz, upon his repatriation in 1994, he reacquired his lost citizenship. In other words, he regained his original status as a natural-born Filipino citizen, nothing less. ISDHEa 4. REMEDIAL LAW; JURISDICTION; THE COURT HAS NO POWER TO REVERSE OR MODIFY RULINGS OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET); RATIONALE. The Court has no power to reverse or modify HRET's rulings, simply because it differs in its perception of controversies. It cannot substitute its discretion for that of HRET, an independent, constitutional body with its own specific mandate. The Constitution explicitly states that the respective Electoral Tribunals of the two chambers of Congress "shall be the sole judges of all contests relating to the election, returns, and qualifications of their respective members." In several cases, this Court has held that the power and the jurisdiction of the Electoral Tribunals are original and exclusive, as if they remained in the legislature, a coequal branch of government. Their judgments are beyond judicial interference, unless rendered without or in excess of their jurisdiction or with grave abuse of discretion. In the elegant words of Mr. Justice Hugo E. Gutierrez Jr.: "The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action." Be it remembered that our Constitution vests upon the HRET the power to be the sole judge of the qualifications of members of the House of Representatives, one of which is citizenship. Absent any clear showing of a manifest violation of the Constitution or the law or any judicial decision, this Court cannot impute grave abuse of discretion to the HRET in the latter's actions on matters over which full discretionary authority is lodged upon it by our fundamental law. Even assuming that we disagree with the conclusions of public respondent, we cannot ipso facto attribute to it "grave abuse of discretion." Verily, there is a line between perceived error and grave abuse. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. "It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." HASTCa 5. POLITICAL LAW; ELECTION LAWS; PUBLIC INTEREST AND THE SOVEREIGN WILL SHOULD AT ALL TIMES BE THE PARAMOUNT CONSIDERATION THEREOF; RATIONALE. Wellentrenched in our jurisprudence is the doctrine that in case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot. Public interest and the sovereign will should, at all times, be the paramount

59

considerations in election controversies. For it would be better to err in favor of the people's choice than to be right in complex but little understood legalisms. "Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote." SCETHa SANDOVAL-GUTIERREZ, J., Dissenting Opinion: CONSTITUTIONAL LAW; CITIZENSHIP, NATURAL-BORN CITIZENS; DEFINITION THEREOF; MUST BE CONSTRUED IN WHAT ITS PLAIN MEANING CONVEYED; APPLICATION IN CASE AT BAR. I reiterate that Section 2, Article IV of the Constitution defines natural-born citizens as "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." Pursuant to R.A. No. 2630, quoted as follows: "Republic Act No. 2630. AN ACT PROVIDING FOR REACQUISITION OF PHILIPPINE CITIZENSHIP BY PERSONS WHO LOST SUCH CITIZENSHIP BY RENDERING SERVICE TO, OR ACCEPTING COMMISSION IN, THE ARMED FORCES OF THE UNITED STATES, provides: Section 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with the Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship." Respondent Cruz had to perform certain acts before he could again become a Filipino citizen. He had to take an oath of allegiance to the Republic of the Philippines and register his oath with the Local Civil Registry of Mangatarum, Pangasinan. He had to renounce his American citizenship and had to execute an affidavit of reacquisition of Philippine citizenship. Clearly, he did not reacquire his natural-born citizenship. The cardinal rule in the interpretation and construction of a constitution is to give effect to the intention of the framers and of the people who adopted it. Words appearing in a Constitution are used according to their plain, natural, and usual significance and import and must be understood in the sense most obvious to the common understanding of the people at the time of its adoption, The provision on "natural-born citizens of the Philippines" is precise, clear and definite. Indeed, neither HRET nor this Court can construe it other than what its plain meaning conveys. It is not phrased in general language which may call for construction of what the words imply. In J.M. Tuason & Co., Inc. vs. Land Tenure Administration, this Court held: "Ascertainment of meaning of provisions of Constitution begins with the language of the document itself. The words used in the Constitution are to be given their ordinary meaning, except where technical terms are employed, in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible, should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say." The definition of a natural-born citizen in the

Constitution must be applied to this petition according to its natural sense. It bears stressing that we are tracing and enforcing a doctrine embodied in no less than the Constitution. Indeed, a deviation from the clear and constitutional definition of a "natural-born Filipino citizen" is a matter which can only be accomplished through a constitutional amendment. Clearly, respondent HRET gravely abused its discretion. ITDHcA DECISION KAPUNAN, J p: The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no person shall be a Member of the House of Representatives unless he is a natural-born citizen." 1 Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution. 2 On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, Section 1(4), a Filipino citizen may lose his citizenship by, among others, "rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads: ITDHcA SECTION 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of the following ways and/or events: xxx xxx xxx

(4) By rendering services to, or accepting commission in, the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country; And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of said country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen . . . . Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps. On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630. 3 He ran

60

for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for reelection. Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Article VI, Section 6 of the Constitution. 4 On March 2, 2000, the HRET rendered its decision 5 dismissing the petition, for quo warranto and declaring respondent Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000. 6 Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds: 1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renunciation of such citizenship on his part. SDEHCc 2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact that he did not validly acquire his Philippine citizenship. 3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not legally and constitutionally restore his natural-born status. 7 The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship. Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost his Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He insists that Article IV, Section 2 of the Constitution expressly states that natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect such citizenship. Respondent on the other hand contends that he reacquired his status as a natural-born citizen when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a natural-born citizen. The petition is without merit. The 1987 Constitution enumerates who are Filipino citizens as follows: (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. 8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. 9 As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." 10 On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. 11 To be naturalized, an applicant has to prove that he possesses all the qualifications 12 and none of the disqualifications 13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. 14 Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act No. 63 (CA No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 15 Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63. 16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications 17 and none of the disqualifications mentioned in Section 4 of C.A. 473. 18 Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces; 19 (2) service in the armed forces of the allied forces in World War II; 20 (3) service in the Armed Forces of the United States at any other time; 21 (4) marriage of a Filipino woman to an alien; 22 and (5) political and economic necessity. 23 As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. aSECAD In Angara v. Republic, 24 we held: . . . . Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he had last resided in the Philippines. [Emphasis in the original.] 25

61

Moreover, repatriation results in the recovery of the original nationality. 26 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. In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides: SECTION 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. 27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows: SECTION 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen from birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship. Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973, 28 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipinos at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippine citizenship. The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-born 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, i.e., 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. A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. 29 The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. 30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgment for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision. 31 There is no such showing of grave abuse of discretion in this case. WHEREFORE, the petition is hereby DISMISSED. Davide, Jr., C.J., Bellosillo and Puno, JJ., concur. Melo, J., took no part. Chairman of the HRET which rendered the decision under review. Vitug, J., took no part. A member of the HRET which rendered the appealed judgment. Mendoza, J., took no part, being ponente of decision under review. Panganiban, J., please see concurring opinion. Quisumbing, Buena and De Leon, Jr., JJ., are on leave. Pardo, J., concurs on this and the concurring opinion of J. Panganiban. Gonzaga-Reyes, J., also joins concurring opinion of J. Panganiban. Ynares-Santiago, J., hereby certifies that J. Santiago joins with the majority opinion of J. Kapunan. Gutierrez, J., Please see dissenting opinion.

62