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JAMELA SALIC MARUHOM, Petitioner, - versus COMMISSION ON ELECTIONS, and MOHAMMADALI Mericano A. ABINAL, Respondents. G. R. No.

179430 Promulgated: July 27, 2009 x--------------------------------------------------x DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Certiorari[1] with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction assailing the Resolution[2] dated 21 August 2007 of the Commission on Elections (COMELEC) En Banc and Resolution[3] dated 8 May 2007 of the COMELEC First Division, both pertaining to SPA No. 07-093. The facts gathered from the records are as follows: Petitioner Jamela Salic Maruhom (Maruhom) and private respondent Mohammadali Mericano A. Abinal (Abinal) were mayoralty candidates in the Municipality of Marantao, Lanao del Sur, for the 14 May 2007 national and local elections. Both Maruhom and Abinal filed their respective sworn Certificates of Candidacy (COCs) for the said position with the COMELEC Election Officer of Marantao. Abinal was then the incumbent Mayor of Marantao who was seeking re-election. On 1 April 2007, Abinal filed before the COMELEC a Petition for Disqualification and to Deny Due Course to or Cancel the Certificate of Candidacy under Section 78 of Batas Pambansa Bilang 881,[4] otherwise known as the Omnibus Election Code of the Philippines (OEC), [5] against Maruhom, which was docketed as SPA No. 07-093. Abinal alleged that Maruhom was a double registrant, being a registered voter in Precinct No. 0208A, Barangay Panggao Saduc, Marawi City and Precinct No. 0040A, Barangay Kialdan Proper, Marantao. Maruhom registered as a voter in Marawi on 26 July 2003. Only three days thereafter, on 29 July 2003, Maruhom registered again as a voter in Marantao, without canceling her Marawi registration. There being double registration, Maruhoms subsequent registration in Marantao was null and void ab initio. And, not being a registered voter in Marantao, Maruhom was disqualified from running for municipal mayor of said municipality.[6] Abinal also averred that Maruhom made false material representations in her registrations in Marawi and Marantao.[7] Maruhom stated in her Marawi registration that: (1) she was Jamela H. Salic Maruhom; (2) she was born on 5 April 1960; (3) she was born in Marawi; and (4) she had resided in Marawi for 43 years. On the other hand, Maruhom indicated in her Marantao registration that: (1) she was Hadja Jamelah Salic Abani; (2) she was born on 3 September 1960; (3) she was born in Marantao; and (4) she had resided in Marantao for 42 years.[8]

Abinal further claimed that Maruhom also made false material representations in her COC. Maruhom wrote in her Marantao registration[9] that she was born on 3 September 1960; she was a registered voter in Precinct No. 0040A, Marantao; and her surname was Abani and her maiden/maternal name was Salic. In contrast, Maruhom declared[10] in her COC that she was born on 5 April 1960; she was a registered voter in Precinct No. 0042A, Marantao; and her surname was Salic and her maiden/maternal name was Abani, Mama, Esmail, Maruhom. Moreover, Maruhom was registered in Marantao as Hadja Jamelah Salic Abani. This was inconsistent with the Certificate of Nomination dated 23 March 2007, issued by Dr. Ombra A. Tamano, Lanao del Sur Provincial Chairman of Laban ng Demokratikong Pilipino, stating that Maruhoms full name was Jamelah Abani Salic. Abinal asserted that the aforementioned false material representations made by Maruhom were valid grounds for denying due course to, or cancellation of, the latters COC under Section 78 of the OEC.[11] Maruhom filed before the COMELEC an Answer with Motion to Dismiss SPA No. 07-093 contending that she was qualified to run as municipal mayor of Marantao, as she had all the qualifications and none of the disqualifications provided by law. A candidate could only be disqualified for a ground provided by law, and there was no law declaring double registration as a ground for disqualification. Maruhom also insisted that she did not make false material representations in her COC, because her complete name was Salic, Jamelah, Abani, Mama, Esmail, Maruhom. Maruhom explained that Salic was her fathers surname; Jamelah was her first name; that Abani, Mama, Esmail were her paternal and maternal grandparents names; and Maruhom was her husbands surname. Hence, Maruhom asked the COMELEC to dismiss Abinals Petition in SPA No. 07-093.[12] After submission of the parties Position Papers and Memoranda, the COMELEC First Division issued a Resolution in SPA No. 07-093 on 8 May 2007, granting Abinals Petition. The COMELEC First Division found that Maruhom had two subsisting registrations, one in Marawi, and another in Marantao. Maruhoms Marantao registration was void ab initio pursuant to COMELEC Minute Resolution No. 00-1513, issued on 25 July 2000.[13] Since Maruhom was not a registered voter in Marantao, she was disqualified from being a mayoralty candidate therein. Thus, the COMELEC First Division ordered the deletion of Maruhoms name from the list of official candidates for municipal mayor of Marantao. Maruhom filed a Motion for Reconsideration of the 8 May 2007 Resolution of the COMELEC First Division, to which Abinal filed an Opposition.[14] The COMELEC First Division then referred Maruhoms Motion for Reconsideration to the COMELEC en banc for disposition.[15] Meanwhile, the 14 May 2007 national and local elections were held, and Abinal won over Maruhom. Abinal was proclaimed the duly elected municipal mayor of Marantao and, thereupon, assumed office. Maruhom filed an election protest against Abinal before the Regional Trial Court (RTC) of Lanao del Sur, Branch 10, docketed as Election Case No. 1731-07.[16] On 21 August 2007, the COMELEC En Banc issued a Resolution denying Maruhoms Motion for Reconsideration and affirming in toto the 8 May 2007 Resolution of the COMELEC First Division. The COMELEC En Banc further ordered the referral of the case to the COMELEC Law Department for investigation on the possible commission of an election offense by Maruhom. Aggrieved, Maruhom filed the instant Petition for Certiorari, under Rule 64 of the Revised Rules of Court, imputing grave abuse of discretion on the part of COMELEC, based on the following grounds: I.

THE COMELEC HAS NO JURISDICTION TO DECLARE NULL AND VOID THE REGISTRATION OF THE PETITIONER AS A REGISTERED VOTER OF MARANTAO, LANAO DEL SUR IN THE MAY 14, 2007 ELECTIONS; II. THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DECLARED THE PETITIONER AS A DOUBLE REGISTRANT.[17] The Petition at bar has no merit. Maruhom challenges in her Petition the jurisdiction of the COMELEC in declaring her registration in Marantao void. She asserts that Section 2, Article IX(c) of the Constitution prohibits the COMELEC from assuming jurisdiction or deciding issues involving the right to vote. Section 33 of Republic Act No. 8189, or the Voters Registration Act of 1996 (VRA), confers upon the Municipal Trial Courts (MTCs) and Metropolitan Trial Courts (MeTCs) original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. Maruhom argues that the validity of her registration in Marantao can only be directly challenged in a petition for exclusion filed with the MTC of Marantao, and cannot be collaterally attacked in the Petition for Disqualification and to Deny Due Course to or Cancel the Certificate of Candidacy filed by Abinal before the COMELEC. Maruhom further contends that the reliance by COMELEC on its broad plenary powers to enforce and administer all laws relating to election is baseless in light of the aforementioned Section 33 of the VRA. The Resolution dated 8 May 2007 of the COMELEC First Division and Resolution dated 21 August 2007 of the COMELEC En Banc amount to judicial legislation, since the COMELEC has no authority to prescribe what the law does not provide, its functions not being legislative.[18] Maruhom, whether intentionally or inadvertently, is muddling the issues in this case. The present case is not about her being denied her right to register as a voter, but is all about her making false material representations in her COC, which would warrant the cancellation of the same. Abinals Petition in SPA No. 07-093 primarily prays that the COMELEC deny due course to or cancel Maruhoms COC under Section 78 of the OEC, alleging that Maruhom made false material representations in her COC. Under Section 78 of the OEC, a false representation of material fact in the COC is a ground for the denial or cancellation of the COC. The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC. Such material fact refers to a candidates eligibility or qualification for elective office like citizenship, residence or status as a registered voter.[19] Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible. In other words, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office.[20] It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC.[21] In the exercise of such jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to material facts was made in the COC.[22]

If the candidate states a material representation in the COC that is false, the COMELEC is empowered to deny due course to or cancel the COC. The person whose COC is denied due course or cancelled under Section 78 of the OEC is not treated as a candidate at all, as if such person never filed a COC.[23] Evidence on record supports the following facts: Maruhom registered as a voter in Marawi on 26 July 2003;[24] only three days after, on 29 July 2003, Maruhom again registered as a voter in Marantao, without first canceling her registeration in Marawi;[25] and on 28 March 2007, Maruhom filed her COC declaring that she was a registered voter in Marantao and eligible to run as a candidate for the position of mayor of said municipality.[26] Given Maruhoms double registration in Marawi and Marantao, then COMELEC should determine which registration was valid and which one was null. COMELEC could not consider both registrations valid because it would then give rise to the anomalous situation where Maruhom could vote in two precincts at the same time. This would be a dangerous precedent that would open the floodgates to massive election cheating and fraud. This was precisely the situation that the COMELEC intended to address when it issued its Minute Resolution No. 00-1513 on 25 July 2000, seven years prior to the 14 May 2007 elections in which Maruhom intended to run. To foster honesty and credibility in the registration of voters, so as to avoid the padding of vote registration, COMELEC laid down the rule in Minute Resolution No. 00-1513 that while the first registration of any voter subsists, any subsequent registration thereto is void ab initio. Following the clear and plain words of Minute Resolution No. 00-1513, therefore, Maruhoms earlier registration in Marawi is deemed valid, while her subsequent registration in Marantao is void ab initio. Accordingly, Maruhom cannot be considered a registered voter in Marantao and, thus, she made a false representation in her COC when she claimed to be one. Maruhoms voter registration constitutes a material fact because it affects her el igibility to be elected as municipal mayor of Marantao. Section 39(a) of Republic Act No. 7160, otherwise known as the Local Government Code of 1991,[27] requires that an elective local official must be, among other things, a registered voter in the barangay, municipality, city or province where he intends to be elected. Several circumstances convince us that Maruhom was aware that she had a subsisting registration in Marawi and deliberately attempted to conceal said fact, which would have rendered her ineligible to run as mayoralty candidate in Marantao. Before filing her COC, Maruhom requested the COMELEC to cancel her Marawi registration.[28] It is undisputed that by the time Maruhom filed her COC, the COMELEC had not yet acted on her request for cancellation of her Marawi registration. Despite knowing that her request for cancellation of her Marawi registration was still pending before the COMELEC, Maruhom proceeded to declare, under oath, in her COC, that she was a registered voter in Marantao and that she was eligible to run for the position of mayor of said municipality. There is no showing that Maruhom informed or advised the election officer of Marantao of her subsisting Marawi registration and her pending request for cancellation of the same. Evidently, Maruhom would much rather sweep the fact of her Marawi registration under the carpet, than deal with the complications arising from it, which may very well put in jeopardy her intention to run for mayor of Marantao. Indeed, Maruhom made false material representations in her COC that she was a registered voter in Marantao and that she was eligible to be a mayoralty candidate in said municipality. Maruhoms insistence that only the MTC has jurisdiction to rule on her voter registration is specious. It must be underscored that in addition to the express jurisdiction of COMELEC over petitions

for cancellation of COCs, on the ground of false material representations, under Section 78 of the OEC, the Constitution also extends to COMELEC all the necessary and incidental powers for it to achieve the holding of free, orderly, honest, peaceful, and credible elections.[29] The determination, therefore, made by the COMELEC that Maruhoms Marawi registration is valid, while her Marantao registration is void, is only in accord with its explicit jurisdiction, or at the very least, its residual powers. Furthermore, as aptly pointed out by Abinal and COMELEC, through the Office of the Solicitor General,[30] the 8 May 2007 Resolution of the COMELEC First Division and the 21 August 2007 Resolution of the COMELEC en bancmerely defeated Maruhoms intent to run for elective office, but it did not deprive her of her right to vote. Although Maruhoms registration in Marantao is void, her registration in Marawi still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right to vote, or even run for an elective post, in the latter. Maruhom does not deny at all that she registered twice. However, Maruhom calls our attention to the fact that on 30 December 2003, she made a written request to the election officer of Marawi to cancel her registration therein as a voter. On 20 March 2007, she reiterated her request to the same election officer. On 23 March 2007, she also informed the COMELEC Law Department of her request for cancellation of her registration in Marawi. Thus, the failure of the election officer of Marawi to cancel Maruhoms voter registration in said municipality, despite repeated requests, should not be taken against the latter.[31] It is true that Maruhom did make several requests for the cancellation of her Marawi registration, but without official action by the COMELEC thereon, they remain mere requests. They cannot simply be deemed granted. We take note that Maruhoms first request for cancellation of her Marawi registration was submitted on 30 December 2003, and her next request was made only on 20 March 2007. Maruhom subsequently filed her COC for the mayoralty position in Marantao on 28 March 2007. Far from convincing us that she had exercised due diligence in having her Marawi registration cancelled, we are more persuaded that Maruhom had not been assiduous in ensuring that her request for cancellation be acted upon by COMELEC. Maruhoms reiteration of her request for cancellation of her Marawi registration on 20 March 2007, three years and three months since her first request, and just a week prior to the filing of her COC for the mayoralty position in Marantao, reveals a harried attempt to comply with the eligibility requirements for her candidacy than a sincere desire to right a wrong. COMELEC, thus, had more than enough basis to support its conclusion of Maruhom being a double registrant whose subsequent registration in Marantao was null and void, rendering her unfit to run as municipal mayor therein. Therefore, Maruhom, at the time she filed her COC, could not have honestly declared therein that she was a registered voter of Marantao and an eligible candidate for mayor of the said municipality. It is incumbent upon Maruhom to truthfully state her eligibility in her COC, especially so because the COC is filled up under oath.[32] An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself.[33] The well-settled rule is that this Court will not interfere with a COMELEC decision/resolution unless the COMELEC is shown to have committed grave abuse of discretion. Correctly understood, grave abuse of discretion is such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or an exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law.[34] Given our foregoing discussion, we find no capricious and whimsical exercise of judgment on the part of the COMELEC in rendering the assailed Resolutions in SPA No. 07-093. WHEREFORE, after due deliberation, the instant Petition for Certiorari is hereby DISMISSED. The Resolution dated 8 May 2007 of the COMELEC First Division and the

Resolution dated 21 August 2007 of the COMELEC En Banc in SPA No. 07-093, are hereby AFFIRMED in toto. Costs against petitioner Jamela Salic Maruhom. SO ORDERED.

KABATAAN PARTY-LIST REPRESENTATIVE RAYMOND V. PALATINO, ALVIN A. PETERS, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP), MA. CRISTINA ANGELA GUEVARRA, CHAIRPERSON OF THE STUDENT CHRISTIAN MOVEMENT OF THEPHILIPPINES (SCMP), VENCER MARI E. CRISOSTOMO, SECRETARY GENERAL OF KABATAAN PARTY-LIST, VIJAE O. ALQUISOLA, PRESIDENT OF THE COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP), DIANNE KRISTEL M. ASUELO, SECRETARY GENERAL OF THE KABATAANG ARTISTA PARA SA TUNAY NA KALAYAAN (KARATULA), KENNETH CARLISLE EARL EUGENIO, ANA KATRINA V. TEJERO, VICTOR LOUIS E. CRISOSTOMO, JACQUELINE ALEXIS S. MERCED, and JADE CHARMANE ROSE J. VALENZUELA, Petitioners,

G.R. No. 189868 CARPIO MORALES, J.: Present: At the threshold once again is the right of suffrage of the sovereign Filipino people the foundation of Philippine democracy. As the country prepares to elect its next set of leaders on May 10, 2010, the Court upholds this primordial right.

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA,

- versus -

LEONARDO-DE CASTRO, BRION, PERALTA,

On November 12, 2008, respondent Commission on Elections (COMELEC) issued Resolution No. 8514[1] which, among other things, set December 2, 2008 to December 15, 2009as the period of continuing voter registration using the biometrics process in all areas nationwide, except in the Autonomous Region of Muslim Mindanao. Subsequently, the COMELEC issued Resolution No. 8585[2] on February 12, 2009 adjusting the deadline of voter registration for the May 10, 2010 national and local elections to October 31, 2009, instead of December 15, 2009 as previously fixed by Resolution No. 8514.

COMMISSION ON ELECTIONS, Respondent.

BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ.

The intense public clamor for an extension of the October 31, 2009 deadline notwithstanding, the COMELEC stood firm in its decision not to extend it, arguing mainly that it needs ample time to prepare for the automated elections. Via the present Petition for Certiorari and Mandamus filed on October 30, 2009,[3] petitioners challenge the validity of COMELEC Resolution No. 8585 and seek a declaration of its nullity.

Petitioner Raymond V. Palatino, a youth sectoral representative under the Kabataan Partylist, sues as a member of the House of Representatives and a concerned citizen, while the rest of petitioners sue as concerned citizens.

Promulgated:

December 15, 2009 x --------------------------------------------------x

Petitioners contend that the serious questions involved in this case and potential disenfranchisement of millions of Filipino voters justify resort to this Court in the first instance, claiming that based on National Statistics Office (NSO) data, the projected voting population for the May 10, 2010 elections is 3,758,964 for the age group 18-19 and 8,756,981 for the age group 20-24, or a total of 12,515,945.

Petitioners further contend that COMELEC Resolution No. 8585 is an unconstitutional encroachment on the legislative power of Congress as it amends the system of continuing voter registration under Section 8 of Republic Act No. 8189 (RA 8189), otherwise known as The Voters Registration Act of 1996, reading: DECISION

Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. They thus pray that COMELEC Resolution No. 8585 be declared null and void, and that the COMELEC be accordingly required to extend the voter registration until January 9, 2010 which is the day before the 120-day prohibitive period starting on January 10, 2010. The COMELEC maintains in its Comment filed on December 7, 2009 that, among other things, the Constitution and the Omnibus Election Code confer upon it the power to promulgate rules and regulations in order to ensure free, orderly and honest elections; that Section 29 of Republic Act No. 6646 (RA 6646)[4] and Section 28 of Republic Act No. 8436 (RA 8436)[5] authorize it to fix other dates for pre-election acts which include voter registration; and that its schedule of pre-election acts shows that the October 31, 2009 deadline of voter registration was impelled by operational and pragmatic considerations, citing Akbayan-Youth v. COMELEC[6] wherein the Court denied a similar prayer for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections.

The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.

Preserving the sanctity of the right of suffrage ensures that the State derives its power from the consent of the governed. The paramount importance of this right is also a function of the State policy of people empowerment articulated in the constitutional declaration that sovereignty resides in the people and all government authority emanates from them,[7] bolstered by the recognition of the vital role of the youth in nation-building and directive to the State to encourage their involvement in public and civic affairs.[8]

The petition is impressed with merit.

It is against this backdrop that Congress mandated a system of continuing voter registration in Section 8 of RA 8189 which provides:

The right of suffrage lies at the heart of our constitutional democracy. The right of every Filipino to choose the leaders who will lead the country and participate, to the fullest extent possible, in every national and local election is so zealously guarded by the fundamental law that it devoted an entire article solely therefor:

Section 8. System of Continuing Registration of Voters. The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. (emphasis and underscoring supplied)

ARTICLE V SUFFRAGE The clear text of the law thus decrees that voters be allowed to register daily during regular offices hours, except during the period starting 120 days before a regular election and 90 days before a special election.

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.

SECTION 2. The Congress shall provide a system of securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

By the above provision, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections including: (1) completion of project precincts, which is necessary for the proper allocation of official ballots, election returns and other election forms and paraphernalia; (2) constitution of the Board of Election Inspectors, including the determination of the precincts to which they shall be assigned; (3) finalizing the Computerized Voters List; (4) supervision of the campaign period; and (5) preparation, bidding, printing and distribution of Voters Information Sheet. Such determination of Congress is well within the ambit of its legislative power, which this Court is bound to respect. And the COMELECs rule-making power should be exercised in accordance with the prevailing law.[9]

Respecting the authority of the COMELEC under RA 6646 and RA 8436 to fix other dates for pre-election acts, the same is not in conflict with the mandate of continuing voter registration under RA 8189. This Courts primary duty is to harmonize laws rather than consider one as repealed by the other. The presumption is against inconsistency or repugnance and, accordingly, against implied repeal. For Congress is presumed to know the existing laws on the subject and not to enact inconsistent or conflicting statutes.[10]

continuing registration under R.A. 8189.[12] (emphasis and underscoring supplied)

Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. This grant of power, however, is for the purpose of enabling the people to exercise the right of suffrage the common underlying policy of RA 8189, RA 6646 and RA 8436.

The clear import of the Courts pronouncement in Akbayan-Youth is that had the therein petitioners filed their petition and sought an extension date that was before the 120-day prohibitive period, their prayer would have been granted pursuant to the mandate of RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition (October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-day prohibitive period. The Court, therefore, finds no legal impediment to the extension prayed for.

In the present case, the Court finds no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by RA 8189, Sec. 8 daily during office hours, except during the period starting 120 days before the May 10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its power to fix other dates or deadlines therefor.

WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is declared null and void insofar as it set the deadline of voter registration for the May 10, 2010elections on October 31, 2009. The COMELEC is directed to proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010. This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

The present case differs significantly from Akbayan-Youth v. COMELEC.[11] In said case, the Court held that the COMELEC did not commit abuse of discretion in denying the request of the therein petitioners for an extension of the December 27, 2000 deadline of voter registration for the May 14, 2001 elections. For the therein petitioners filed their petition with the Court within the 120-day prohibitive period for the conduct of voter registration under Section 8 of RA 8189, and sought the conduct of a twoday registration on February 17 and 18, 2001, clearly within the 120-day prohibitive period.

The Court in fact suggested in Akbayan-Youth that the therein petitioners could have, but had not, registered during the period between the December 27, 2000 deadline set by the COMELEC and before the start of the 120-day prohibitive period prior to the election date or January 13, 2001, thus:

[T]here is no allegation in the two consolidated petitions and the records are bereft of any showing that anyone of herein petitioners has filed an application to be registered as a voter which was denied by the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded to the Office of the Election Officer to register between the period starting from December 28, 2000 to January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his application for registration. While it may be true that respondent COMELEC set the registration deadline onDecember 27, 2000, this Court is of the firm view that petitioners were not totally denied the opportunity to avail of the

G.R. No. 104960 September 14, 1993 PHILIP G. ROMUALDEZ, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA, BOARD OF ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL REGISTRAR COMELEC, TOLOSA, LEYTE, respondents. Otilia Dimayuga-Molo for petitioner. The Solicitor General for respondents.

Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving on December 1991 apparently without any government document. 7 When Romualdez arrived in the Philippines, he did not delay his return to his residence at Malbog, Tolosa, Leyte. During the registration of voters conducted by the Commission on Election ("COMELEC") on 01 February 1992 for the Synchronized National and Local Election scheduled for 11 May 1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of the Board of Election Inspectors, who had known Romualdez to be a resident of the place and, in fact, an elected Barangay Chairman of Malbog in 1982, allowed him to be registered. Romualdez's registration, however, was not to be unquestioned. On 21 February 1992, herein private respondent Donato Advincula ("Advincula") filed a petition with the Municipal Trial Court of Tolosa, Leyte, praying that Romualdez be excluded from the list of voters in Precinct No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA 7166. 8 Advincula alleged that Romualdez was a resident of Massachusetts, U.S.A.; that his profession and occupation was in the U.S.A.; that he had just recently arrived in the Philippines; and that he did not have the required one-year residence in the Philippines and the six-month residence in Tolosa to qualify him to register as a voter in Barangay Malbog, Tolosa, Leyte. 9 On 25 February 1992, Romualdez filed an answer, contending that he has been a resident of Tolosa, Leyte, since the early 1980's, and that he has not abandoned his said residence by his physical absence therefrom during the period from 1986 up to the third week of December 1991. 10 After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision 11 on 28 February 1992, the dispositive portion of which reads: WHEREFORE PREMISES CONSIDERED, the court finds the respondent to be a resident of Brgy. Malbog, Tolosa, Leyte and qualified to register as a voter thereat. Hence, the instant petition for exclusion of Philip G. Romualdez from the list of voter of Precinct No. 9, Malbog, Tolosa, Leyte is hereby ordered DENIED and petition DISMISSED. SO ORDERED. Upon receipt of the adverse decision, Advincula appealed the case to the respondent court. On 03 April 1992, the respondent court rendered the assailed decision, 12 thus: WHEREFORE, this Court finds respondent Philip Romualdez disqualified to register as a voter for the 1992 elections and hereby reverses the decision of the lower court in toto. The Municipal Registrar of the Commission on Elections of Tolosa, Leyte, is hereby ordered to delete and cancel the name of respondent Philip G. Romualdez from the list of qualified voters registered February 1, 1992, at Precinct 9, barangay Malbog, Tolosa, Leyte. SO ORDERED.

VITUG, J.: An event in this decade, which future generations would likely come to know simply as the "EDSA People's Power Revolution of 1986," has dramatically changed the course of our nation's history. So, too, not a few of our countrymen have by it been left alone in their own personal lives. One such case is that of the petitioner in this special civil action for certiorari. The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of the former Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda Marcos. Sometime in the early part of 1980, the petitioner, in consonance with his decision to establish his legal residence at Barangay Malbog, Tolosa, Leyte, 1 caused the construction of his residential house therein. He soon thereafter also served as Barangay Captain of the place. In the 1984 Batasan Election and 1986 "snap" Presidential Election, Romualdez acted as the Campaign Manager of the Kilusang Bagong Lipunan (KBL) in Leyte where he voted. 2 When the eventful days from the 21st to the 24th of February, 1986, came or were about to come to a close, some relatives and associates of the deposed President, fearing for their personal safety, whether founded or not, "fled" the country. Petitioner Romualdez, for one, together with his immediate family, left the Philippines and sought "asylum" in the United States which the United States (U.S.) government granted. 3 While abroad, he took special studies on the development of Leyte-Samar and international business finance. 4 In the early part of 1987, Romualdez attempted to come back to the Philippines to run for a congressional seat in Leyte. On 23 March 1987, he finally decided to book a flight back to the Philippines but the flight was somehow aborted. 5 On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of the U.S. Immigration and Naturalization Service, informing him that he should depart from the U.S. at his expense on or before 23 August 1992, thus: . . . Failure to depart on or before the specified date may result in the withdrawal of voluntary departure and action being taken to effect your deportation. In accordance with a decision made to your case, you are required to depart from the United States at your expense on or before 23 August 1992. 6

Hence, this recourse. On 7 May 1992, this Court issued a temporary restraining order directing respondent Regional Trial Court Judge Pedro Espino to cease and desist from enforcing questioned decision. 13 The petitioner has raised several issues which have been well synthesized by the Solicitor General into (1) Whether or not the MTC and RTC acquired jurisdiction over, respectively, Case No. 01-S. 1992 and Case No. 92-03-42, the petition having been filed by one who did not allege to be himself a registered voter of the municipality concerned; and (2) Whether or not the respondent court erred in finding the petitioner to have voluntarily left the country and abandoned his residence in Malbog, Tolosa, Leyte. The petition is impressed with merit. Anent the first issue, the petitioner assails for the first time the jurisdiction of the respondent Court and the MTC of Tolosa, Leyte, in taking cognizance of the case, despite an absence of any allegation in the petition filed with the MTC that Advincula was himself a registered voter in Precinct No. 9 of Barangay Malbog, Tolosa, Leyte conformably with Section 142 of the Omnibus Election Code. 14 When respondent Advincula filed the petition with the MTC for the exclusion of herein petitioner Romualdez, the latter countered by filing his answer 15 and praying for the denial of the petition, without raising the issue of jurisdiction. But what can be telling is that when the MTC decision, denying the petition for disqualification, went on appeal to the RTC, Romualdez, in his own appeal-memorandum, explicitly prayed that the MTC decision be affirmed. This unassailable incident leads us to reiterate that "while lack of jurisdiction may be assailed at any stage, a party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing such lack of jurisdiction." 16 Undoubtedly, the petitioner is now estopped from questioning the jurisdiction of the respondent not only by his active participation in the proceedings thereat but, more importantly, in having sought an affirmative relief himself when the appeal was made to the latter court whose jurisdiction he, in effect, invoked. Furthermore, the question is not really as much the jurisdiction of the courts below as merely the locus standi of the complainant in the proceedings, a matter that, at this stage, should be considered foreclosed. In any case, we consider primordial the second issue of whether or not Romualdez voluntarily left the country and abandoned his residence in Malbog, Tolosa, Leyte. Here, this time, we find for the petitioner. The Solicitor General himself sustains the view of petitioner Romualdez. Expressing surprise at this stance given by the Solicitor General, respondent Advincula posits non sequitur argument 17 in his comment assailing instead the person of Solicitor Edgar Chua. If it would have any value, at all, in disabusing the minds of those concerned, it may well be to recall what this Court said in Rubio vs. Sto. Tomas: 18

It is also incumbent upon the Office of the Solicitor General to present to the Court the position that will legally uphold the best interest of the government, although it may run counter to a client's position. In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile", which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." 19 "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. 20 That residence, in the case of the petitioner, was established during the early 1980's to be at Barangay Malbog, Tolosa, Leyte. Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. 21 In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 22 The political situation brought about by the "People's Power Revolution" must have truly caused great apprehension to the Romualdezes, as well as a serious concern over the safety and welfare of the members of their families. Their going into self-exile until conditions favorable to them would have somehow stabilized is understandable. Certainly, their sudden departure from the country cannot be described as "voluntary," or as "abandonment of residence" at least in the context that these terms are used in applying the concept of "domicile by choice." We have closely examined the records, and we find not that much to convince us that the petitioner had, in fact, abandoned his residence in the Philippines and established his domicile elsewhere. It must be emphasized that the right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him to participate in the process of government so as to ensure that the government can truly be said to derive its power solely from the consent of the governed. 23 We, therefore, must commend respondent Advincula for spending time and effort even all the way up to this Court, for as the right of suffrage is not to be abridged, so also must we safeguard and preserve it but only on behalf of those entitled and bound to exercise it. WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE COURSE; of the Decision of the respondent Regional Trial Court dated 03 April 1992 is hereby REVERSED and SET ASIDE, and the Decision of the Municipal Trial Court dated 28 February 1992 is hereby REINSTATED and the Temporary Restraining Order issued by the Court in this case is correspondingly made PERMANENT. No pronouncement as to costs. SO ORDERED.

[G.R. No. 133944. October 28, 1999] MARCITA MAMBA PEREZ, petitioner, vs. COMMISSION ON ELECTIONS and RODOLFO E. AGUINALDO, respondents. D E C I S I O N: MENDOZA, J.: This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First Division of the Commission on Elections, dismissing petitioner Marcita Mamba Perezs petition for the disqualification of private respondent Rodolfo E. Aguinaldo as a candidate for Representative of the Third District of Cagayan in the May 11, 1998 elections, as well as the resolution of the COMELEC en banc, dated June 11, 1998, denying petitioners motion for reconsideration. The facts are not in dispute. On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30, 1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification of private respondent as a candidate on the ground that he had not been a resident of the district for at least one (1) year immediately before the day of the elections as required by Art. VI, 6 of the Constitution. In support of her claim, petitioner presented private respondents certificates of candidacy [1] for governor of Cagayan in the 1988, 1992, and 1995 elections; his voters affidavit[2] which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter registration record dated June 22, 1997, [3] in all of which it is stated that he is a resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of Cagayan. Petitioner alleged that private respondent filed an application[4] for the transfer of his registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third District) only on December 17, 1997 and that said application was approved only on January 7, 1998. Petitioner prayed that in the event the case was not finally decided before the elections and private respondent obtained the highest number of votes, the latters proclamation be suspended. In his answer, private respondent claimed that while he had been a resident of Gattaran, Cagayan in 1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment at No. 13-E Magallanes St., Tuguegarao, Cagayan, in order to hide his mistress from public view because, at that time, his marriage to his former wife was still subsisting. In support of his claim, he presented the affidavit[5] of the owner of the apartment, Engineer Alfredo Ablaza, in which it is stated that private respondent had been his lessee since July 1990. In addition, private respondent presented the contract of lease[6] of another residential apartment at Kamias Street, Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997;[7] the marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18, 1998;[8] the birth certificate[9] of their daughter, Geniah Laureen D. Aguinaldo; and various letters,[10] all of which show that he had been a resident of Tuguegarao, Cagayan for at least one (1) year before the May 11, 1998 elections. On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution,[11] dismissed the petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of Cagayan. On May 11, 1998, private respondent was elected Representative of the Third District of Cagayan, with 65,058 votes over his rival Manuel N. Mambas 58,507 votes.[12] Accordingly, on May 16, 1998, he was proclaimed elected and, on May 17, 1998, he was sworn in office. On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that private respondent lacked the requisite residency in the Third District of Cagayan and arguing that the

proclamation of private respondent was not a legal impediment to the continuation of the hearing on her motion in view of R.A. No. 6646, 6. Her motion was, however, denied by the COMELEC en banc in its resolution of June 11, 1998. Hence, this petition. Petitioner contends that the COMELEC committed grave abuse of discretion in holding that private respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented an apartment there in order to hide his mistress. Petitioner contends that transfer of residence to the place where private respondent is keeping his mistress cannot amount to a change of domicile because ones domicile is the place where one and ones legitimate family resides. She also argues that private respondent could not have changed his residence to Tuguegarao in 1990 considering that his certificates of candidacy for governor of Cagayan in the 1988, 1992, and 1995 elections, as well as his voter registration records, the latest of which was made on June 22, 1997, indicate that he is a resident of Gattaran, which is in the First District of Cagayan. Petitioner avers that in the absence of clear and positive proof, ones domicile of origin should be deemed to continue and that to successfully effect a change of domicile, one must prove an actual change of domicile, a bonafide intention of abandoning the former place of residence and of establishing a new one, and unequivocal acts which correspond with the intention. On the other hand, private respondent asks that the instant petition be dismissed. He argues that after his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the COMELEC lost jurisdiction to pass upon his qualifications for the office of Representative. He argues further that this case should have been filed with the House of Representatives Electoral Tribunal which has jurisdiction over the subject matter of the case. In a supplemental pleading,[13] petitioner replies that the COMELEC retained jurisdiction over the case because she filed the petition for disqualification on March 30, 1998, before the elections on May 11, 1998, and that pursuant to R.A. No. 6646, 6, the COMELEC could continue the proceedings for the determination of the disqualification of private respondent. The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant petition for certiorari and eventually pass upon private respondents eligibility for the office of Representative of the Third District of Cagayan. Petitioner, in sustaining the affirmative side of the question, invokes the following provision of R.A. No. 6646:
Sec. 6 Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission (COMELEC) shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

As already stated, the petition for disqualification against private respondent was decided by the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were held. Notwithstanding the fact that private respondent had already been proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because the proclamation of private respondent barred further consideration of petitioners action. In the same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of Representatives, this Court has no jurisdiction over the same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives

Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of private respondents ineligibility. As this Court held in Lazatin v. House of Representatives Electoral Tribunal:[14] The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as intended to be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. Petitioners remedies should have been (1) to reiterate her prayer in the petition for disqualification, and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the hearing of the said petition and, in the event the motion was denied before the proclamation of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the proclamation of private respondent; or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on May 16, 1998.[15] Obviously, neither of these remedies can be availed of now. In any event, even assuming that the Court has jurisdiction to resolve the instant petition for certiorari, we find no merit in petitioners allegation that private respondent is ineligible for the office of Representative of the Third District of Cagayan. Art. VI, 6 of the Constitution states:
No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondents second daughter; and (5) various letters addressed to private respondent and his family, which all show that private respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on May 11, 1998. There is thus substantial evidence supporting the finding that private respondent had been a resident of the Third District of Cagayan and there is nothing in the record to detract from the merit of this factual finding. Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22, 1997, is shown by the following documentary evidence in the record, to wit: (1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voters registration records, the latest of which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and 1995. The contention is without merit. The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino,[17] this Court held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the law,[18] what is required for the election of governor is residency in the province, not in any district or municipality, one year before the election. Moreover, as this Court said in Romualdez-Marcos v. COMELEC:[19] It is the fact of residence, not a statement in a certificate of candidacy, which ought to be decisive in determining whether or not an individual has satisfied the constitutions residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of the province of Cagayan. As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,[20] in which this Court held: [W]hen the evidence on the alleged lack of residence qualif ication is weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified, having been governor of the entire province of Cagayan for ten years immediately before his election as Representative of that provinces Third District. WHEREFORE, the petition is DISMISSED. SO ORDERED.

The meaning and purpose of the residency requirement were explained recently in our decision in Aquino v. COMELEC,[16] as follows:
. . . [T]he place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice.

In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a residential apartment at Kamias

LUIS A. ASISTIO, Petitioner,

G.R. No. 191124

No. 10-582, entitled Atty. Enrico R. Echiverri v. Luis Aquino Asistio, the Board of Election Inspectors of Precinct No. 1811A, Barangay 15, Caloocan City and the City Election Officer of Caloocan. In his petition, Echiverri alleged that Asistio is not a resident of Caloocan City, specifically not of 123 Interior P. Zamora St., Barangay 15, Caloocan City, the address stated in his Certificate of Candidacy (COC) for Mayor in the 2010 Automated National and Local Elections. Echiverri, also a candidate for Mayor of Caloocan City, was the respondent in a Petition to Deny Due Course and/or Cancellation of the Certificate of Candidacy filed by Asistio. According to Echiverri, when he was about to furnish Asistio a copy of his Answer to the latters petition, he found out that Asistios address is non existent. To support this, Echiverri attached to his petition a Certification[4] dated December 29, 2009 issued by the Tanggapan ng Punong Barangay of Barangay 15 Central, Zone 2, District II of Caloocan City. He mentioned that, upon verification of the 2009 Computerized Voters List (CVL) for Barangay 15, Asistios name appeared under voter number 8, with address at 109 Libis Gochuico, Barangay 15, Caloocan City.[5] Echiverri also claimed that Asistio was no longer residing in this address, since what appeared in the latters COC for Mayor[6] in the 2007 elections was No. 110 Unit 1, P. Zamora St., Barangay 15, Caloocan City,[7] but that the address used in Asistios current COC is situated in Barangay 17. He said that, per his verification, the voters [8] duly registered in the 2009 CVL using the address No. 123 P. Zamora St., Barangay 17, Caloocan City did not include Asistio.[9] On January 28, 2010, the MeTC issued a Notice of Hearing[10] notifying Asistio, through Atty. Carlos M. Caliwara, his counsel of record in SPA No. 09-151 (DC), entitled Asistio v. Echiverri, before the Commission on Elections (COMELEC), of the scheduled hearings of the case on February 1, 2 and 3, 2010. On February 2, 2010, Asistio filed his Answer Ex Abundante Ad Cautelam with Affirmative Defenses.[11] Asistio alleged that he is a resident of No. 116, P. Zamora St., CaloocanCity, and a registered voter of Precinct No. 1811A because he mistakenly relied on the address stated in the contract of lease with Angelina dela Torre Tengco (Tengco), which was 123 Interior P. Zamora St., Barangay 15, Caloocan City.[12] Trial on the merits ensued, after which Judge Malabaguio directed the parties to file their respective position papers on or before February 4, 2010. Echiverri filed his Memorandum[13] on February 4, 2010. Asistio, on the other hand, failed to file his memorandum since the complete transcripts of stenographic notes (TSN) were not yet available.[14] On February 5, 2010, Judge Malabaguio rendered a decision,[15] disposing, as follows WHEREFORE, premises considered, the Election Registration Board, Caloocan City is hereby directed to remove the name of LUIS AQUINO ASISTIO from the list of permanent voters of Caloocan City. SO ORDERED.[16] Meanwhile, on January 26, 2010, Echiverri filed with the COMELEC a Petition for Disqualification,[17] which was docketed as SPA No. 10-013 (DC). The Petition was anchored on the grounds that Asistio is not a resident of Caloocan City and that he had been previously convicted of a crime involving moral turpitude. Asistio, in his Answer with Special and Affirmative Defenses (Com Memorandum),[18] raised the same arguments with respect to his residency and also argued that the President of the Philippines granted him an absolute pardon.

Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated:

- versus -

HON. THELMA CANLAS TRINIDAD-PE AGUIRRE, Presiding Judge, Regional Trial Court, Caloocan City, Branch 129; HON. ARTHUR O. MALABAGUIO, Presiding Judge, Metropolitan Trial Court, Caloocan City, Branch 52; ENRICO R. ECHIVERRI, Board of Election Inspectors of Precinct 1811A, Barangay 15, Caloocan City; and the CITY ELECTION OFFICER, Caloocan City, Respondents.

April 27, 2010 x-----------------------------------------------------------------------------------------x

RESOLUTION: NACHURA, J.: This is a petition[1] for certiorari, with prayer for the issuance of a status quo ante order, under Rule 65 of the Rules of Court, assailing the Order[2] dated February 15, 2010 issued, allegedly with grave abuse of discretion amounting to lack or excess of jurisdiction, by public respondent Judge Thelma Canlas Trinidad-Pe Aguirre (Judge Aguirre) of the Regional Trial Court (RTC), Branch 129, Caloocan City in SCA No. 997. The petition likewise ascribes error in, and seeks to nullify, the decision dated February 5, 2010, promulgated by the Metropolitan Trial Court (MeTC), Branch 52, Caloocan City in SCA No. 10-582. The Antecedents On January 26, 2010, private respondent Enrico R. Echiverri (Echiverri) filed against petitioner Luis A. Asistio (Asistio) a Petition[3] for Exclusion of Voter from the Permanent List of Voters of Caloocan City (Petition for Exclusion) before the MeTC, Branch 52, Caloocan City. Public respondent Judge Arthur O. Malabaguio (Judge Malabaguio) presides over MeTC Branch 52. The petition was docketed as SCA

On February 10, 2010, Asistio filed his Notice of Appeal [19] and his Appeal (from the Decision dated February 5, 2010)[20] and paid the required appeal fees through postal money orders.[21] On February 11, 2010, Echiverri filed a Motion[22] to Dismiss Appeal, arguing that the RTC did not acquire jurisdiction over the Appeal on the ground of failure to file the required appeal fees. On the scheduled hearing of February 15, 2010, Asistio opposed the Motion and manifested his intention to file a written comment or opposition thereto. Judge Aguirre directed Echiverris counsel to file the appropriate responsive pleading to Asistios appeal in her Order[23] of same date given in open court. Judge Aguirre, however, cancelled her February 15, 2010 Order, and issued an Amended Order[24] on that date holding in abeyance the filing of the responsive pleading of Echiverris counsel and submitting the Motion for resolution. In another Order also dated February 15, 2010, Judge Aguirre granted the Motion on the ground of non-payment of docket fees essential for the RTC to acquire jurisdiction over the appeal. It stated that Asistio paid his docket fee only on February 11, 2010 per the Official Receipt of the MeTC, Office of the Clerk of Court. Hence, this petition. Per Resolution[25] dated February 23, 2010, this Court required the respondents to comment on the petition, and issued the Status Quo Ante Order prayed for. On March, 8, 2010, Echiverri filed his Comment to the Petition (with Motion to Quash Status Quo Ante Order). Departing from Echiverris position against the Petition, the Office of the Solicitor General (OSG), on March 30, 2010, filed its Comment via registered mail. The OSG points out that Asistios family is known to be one of the prominent political families inCaloocan City, and that there is no indication whatsoever that [Asistio] has ever intended to abandon his domicile, Caloocan City. Further, the OSG proposes that the issue at hand is better resolved by the people of Caloocan City. In all, the OSG propounds that technicalities and procedural niceties should bow to the sovereign will of the people of Caloocan City. Our Ruling In her assailed Order, Judge Aguirre found The payment of docket fees is an essential requirement for the perfection of an appeal. The record shows that Respondent-Appellant paid his docket fee only on February 11, 2010, evidenced by O.R. No. 05247240 for Php1,510.00 at the Metropolitan Trial Court, Office of the Clerk of Court, yet the Notice of Appeal was filed on February 10, 2010, at 5:30 p.m., which is way beyond the official office hours, and a copy thereof was filed at the Office of the Clerk of Court, Metropolitan Trial Court at 5:00 p.m. of February 10, 2010. Thus, it is clear that the docket fee was not paid simultaneously with the filing of the Notice of Appeal. It taxes the credulity of the Court why the Notice of Appeal was filed beyond the regular office hours, and why did respondent-appellant had to resort to paying the docket fee at the Mall of Asia when he can conveniently pay it at the Office of the Clerk of Court, Metropolitan Trial Court along with the filing of the

Notice of Appeal on February 10, 2010 at 5:30 p.m. at the Metropolitan Trial Court, which is passed [sic] the regular office hours. The conclusion is then inescapable that for failure to pay the appellate docket fee, the Court did not acquire jurisdiction over the case.[26] This Court observes, that while Judge Aguirre declares in her Order that the appellate docket fees were paid on February 11, 2010, she conveniently omits to mention that the postal money orders obtained by Asistio for the purpose were purchased on February 10, 2010. [27] It is noteworthy that, as early as February 4, 2010, Asistio already manifested that he could not properly file his memorandum with the MeTC due to the non-availability of the TSNs. Obviously, these TSNs were needed in order to prepare an intelligent appeal from the questioned February 5, 2010 MeTC Order. Asistio was able to get copies of the TSNs only on February 10, 2010, the last day to file his appeal, and, naturally, it would take some time for him to review and incorporate them in his arguments on appeal. Understandably, Asistio filed his notice of appeal and appeal, and purchased the postal money orders in payment of the appeal fees on the same day. To our mind, Asistio, by purchasing the postal money orders for the purpose of paying the appellate docket fees on February 10, 2010, although they were tendered to the MeTC only on February 11, 2010, had already substantially complied with the procedural requirements in filing his appeal. This appeal to the RTC assails the February 5, 2010 MeTC Order directing Asistios name to be removed from the permanent list of voters [in Precinct 1811A] of Caloocan City. The Order, if implemented, would deprive Asistio of his right to vote. The right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him to participate in the process of government to ensure that it can truly be said to derive its power solely from the consent of its constituents.[28] Time and again, it has been said that every Filipinos right to vote shall be respected, upheld, and given full effect.[29] A citizen cannot be disenfranchised for the flimsiest of reasons. Only on the most serious grounds, and upon clear and convincing proof, may a citizen be deemed to have forfeited this precious heritage of freedom. In this case, even if we assume for the sake of argument, that the appellate docket fees were not filed on time, this incident alone should not thwart the proper determination and resolution of the instant case on substantial grounds. Blind adherence to a technicality, with the inevitable result of frustrating and nullifying the constitutionally guaranteed right of suffrage, cannot be countenanced. [30] On more than one occasion, this Court has recognized the emerging trend towards a liberal construction of procedural rules to serve substantial justice. Courts have the prerogative to relax rules of even the most mandatory character, mindful of the duty to reconcile both the need to speedily end litigation and the parties right to due process. It is true that, faced with an appeal, the court has the discretion whether to dismiss it or not. However, this discretion must be sound; it is to be exercised pursuant to the tenets of justice, fair play and equity, in consideration of the circumstances obtaining in each case. Thus, dismissal of appeals on purely technical grounds is frowned upon as the policy of the Court is to encourage resolution of cases on their merits over the very rigid and technical application of rules of procedure used only to help secure, not override, substantial justice. Verily, it is far better and more prudent for the court to excuse a technical lapse and afford the parties a review of the case on appeal rather than dispose of it on a technicality that would cause grave injustice to the parties.[31] The primordial issue in this case is whether Asistio should be excluded from the permanent list of voters of [Precinct 1811A] of Caloocan City for failure to comply with the residency required by law.

Section 117 of The Omnibus Election Code (Batas Pambansa Bilang 881) states: SECTION 117. Qualifications of a voter.Every citizen of the Philippines, not otherwise disqualified by law, eighteen years of age or over, who shall have resided in the Philippines for one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election, may be registered as a voter. Any person who transfers residence to another city, municipality or country solely by reason of his occupation; profession; employment in private or public service; educational activities; work in military or naval reservations; service in the army, navy or air force; the constabulary or national police force; or confinement or detention in government institutions in accordance with law, shall be deemed not to have lost his original residence. This provision is echoed in Section 9 of The Voters Registration Act of 1996 (Republic Act No. 8189), to wit: SEC. 9. Who May Register.All citizens of the Philippines not otherwise disqualified by law who are at least eighteen (18) years of age and who shall have resided in the Philippines for at least one (1) year and in the place wherein they propose to vote for at least six (6) months immediately preceding the election, may register as a voter. Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National Police Force, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence. Any person who, on the day of registration may not have reached the required age or period of residence but who, on the day of election shall possess such qualifications, may register as a voter. From these provisions, the residency requirement of a voter is at least one (1) year residence in the Philippines and at least six (6) months in the place where the person proposes or intends to vote. Residence, as used in the law prescribing the qualifications for suffrage and for elective office, is doctrinally settled to mean domicile, importing not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention [32] inferable from a persons acts, activities, and utterances.[33] Domicile denotes a fixed permanent residence where, when absent for business or pleasure, or for like reasons, one intends to return. [34] In the consideration of circumstances obtaining in each particular case, three rules must be borne in mind, namely: (1) that a person must have a residence or domicile somewhere; (2) once established, it remains until a new one is acquired; and (3) that a person can have but one residence or domicile at a time.[35]

choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.[37]

Asistio has always been a resident of Caloocan City since his birth or for more than 72 years. His family is known to be among the prominent political families in Caloocan City. In fact, Asistio served in public office as Caloocan City Second District representative in the House of Representatives, having been elected as such in the 1992, 1995, 1998, and 2004 elections. In 2007, he also sought election as City Mayor. In all of these occasions, Asistio cast his vote in the same city. Taking these circumstances into consideration, gauged in the light of the doctrines above enunciated, it cannot be denied that Asistio has qualified, and continues to qualify, as a voter of Caloocan City. There is no showing that he has established domicile elsewhere, or that he had consciously and voluntarily abandoned his residence in Caloocan City. He should, therefore, remain in the list of permanent registered voters of Precinct No. 1811A, Barangay 15, Caloocan City.

That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for the 2007 and 2010 elections, a non-existent or false address, or that he could not be physically found in the address he indicated when he registered as a voter, should not operate to exclude him as a voter of Caloocan City. These purported misrepresentations in Asistios COC, if true, might serve as basis for an election offense under the Omnibus Election Code (OEC),[38] or an action to deny due course to the COC.[39] But to our mind, they do not serve as proof that Asistio has abandoned his domicile in Caloocan City, or that he has established residence outside of Caloocan City.

With this disquisition, we find no necessity to discuss the other issues raised in the petition.

WHEREFORE, the petition is GRANTED. The assailed Order dated February 15, 2010 of the Regional Trial Court, Branch 129, Caloocan City in SCA No. 997 and the decision dated February 5, 2010 of the Metropolitan Trial Court, Branch 52, Caloocan City in SCA No. 10-582 are REVERSED and SET ASIDE. Petitioner Luis A. Asistio remains a registered voter of Precinct No. 1811A, Barangay 15, Caloocan City. The Status Quo Ante Order issued by this Court on February 23, 2010 is MADE PERMANENT.

SO ORDERED.

Domicile is not easily lost. To successfully effect a transfer thereof, one must demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which correspond with that purpose. [36] There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of

G.R. No. 188671

February 24, 2010

MOZART P. PANLAQUI, Petitioner, vs. COMMISSION ON ELECTIONS and NARDO M. VELASCO, Respondents. DECISION CARPIO MORALES, J.: The present petition is one for certiorari. Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections (Comelec) En Banc Resolution of June 17, 2009 denying his motion for proclamation, which he filed after this Court affirmed in G.R. No. 1800511 the nullification of the proclamation of private respondent Nardo Velasco (Velasco) as mayor of Sasmuan, Pampanga. Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He married Evelyn Castillo on June 29, 1975. In 1983, he moved to the United States where he subsequently became a citizen. Upon Velascos application for dual citizenship under Republic Act No. 92252 was approved on July 31, 2006, he took on even date his oath of allegiance to the Republic of the Philippines and returned to the Philippines on September 14, 2006. On October 13, 2006, Velasco applied for registration as a voter of Sasmuan, which application was denied by the Election Registration Board (ERB). He thus filed a petition for the inclusion of his name in the list of voters before the Municipal Trial Court (MTC) of Sasmuan which, by Decision of February 9, 2007, reversed the ERBs decision and ordered his inclusion in the list of voters of Sasmuan. On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision of March 1, 2007, reversed3 the MTC Decision, drawing Velasco to elevate the matter via Rule 42 to the Court of Appeals which, by Amended Decision4 of August 19, 2008, dismissed the appeal for lack of jurisdiction. In the meantime, Velasco filed on March 28, 2007 his Certificate of Candidacy (COC) for mayor of Sasmuan, therein claiming his status as a registered voter. Panlaqui, who vied for the same position, thereupon filed before the Comelec a Petition to Deny Due Course To and/or To Cancel Velascos COC based on gross material misrepresentation as to his residency and, consequently, his qualification to vote. In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of Sasmuan. As the Comelec failed to resolve Panlaquis petition prior to the elections, Velasco took his oath of office and assumed the duties of the office. Finding material misrepresentation on the part of Velasco, the Comelec cancelled his COC and nullified his proclamation, by Resolutions of July 6, 2007 and October 15, 2007, which this Court affirmed in G.R. No. 180051.

Panlaqui thereafter filed a motion for proclamation which the Comelec denied by the assailed Resolution, pointing out that the rule on succession does not operate in favor of Panlaqui as the second placer because Velasco was not disqualified by final judgment before election day. Hence, the present petition which imputes grave abuse of discretion on the part of the Comelec for not regarding the RTC March 1, 2007 Decision as the final judgment of disqualification against Velasco prior to the elections, so as to fall within the ambit of Cayat v. Commission on Elections5 on the exception to the doctrine on the rejection of the second placer. Velasco filed his Comment of September 18, 2009 with motion to consolidate the present case with G.R. No. 189336, his petition challenging the Comelecs September 8, 2009 Order which directed him to vacate his mayoralty post for the incumbent vice-mayor to assume office as mayor. A perusal of the records of the petition shows, however, that it had already been dismissed by the Court by Resolution of October 6, 2009.6 In his present petition, Panlaqui implores this Court to apply in his favor the case of Cayat where the Court affirmed, inter alia, the Comelec Order directing the proclamation of the second placer as Mayor of Buguias, Benguet in this wise: There is no doubt as to the propriety of Palilengs proclamation for two basic reasons. First, the COMELEC First Divisions Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twentythree days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of Buguias, Benguet is beyond question. Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsans favor, regardless of his intervention in the present case, if two conditionsconcur: (1) the decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayats disqualification became final only after the elections.7 (emphasis and italics in the original; underscoring supplied) Repackaging the present petition in Cayats fashion, Panlaqui asserts that the RTC March 1, 2007 Decision in the voters inclusion proceedings must be considered as the final judgment of disqualification against Velasco, which decision was issued more than two months prior to the elections. Panlaqui posits that when Velascos petition for inclusion was denied, he was also declared as disqualified to run for public office. Unwrapping the present petition, the Court finds that the true color of the issue of distinction between a petition for inclusion of voters in the list and a petition to deny due course to or cancel a certificate of candidacy has already been defined in Velasco v. Commission on Elections8 where the Court held that the two proceedings may ultimately have common factual bases but they are poles apart in terms of the issues, reliefs and remedies involved, thus:

In terms of purpose, voters inclusion/exclusion and COC denial/cancellation are different proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the other refers to the application to be a candidate. Because of their differing purposes, they also involve different issues and entail different reliefs, although the facts on which they rest may have commonalities where they may be said to converge or interface. x x x9 (underscoring supplied) Voters inclusion/exclusion proceedings, on the one hand, essentially involve the issue of whether a petitioner shall be included in or excluded from the list of voters based on the qualifications required by law and the facts presented to show possession of these qualifications.10 On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false representation of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a material fact or those that refer to a candidates qualifications for elective office. Apart from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible or, otherwise stated, with the intention to deceive the electorate as to the would-be candidates qualifications for public office.11 In Velasco, the Court rejected Velascos contention that the Comelec improperly ruled on the right to vote when it cancelled his COC. The Court stated that the Comelec merely relied on or recognized the RTCs final and executory decision on the matter of the right to vote in the precinct within its territorial jurisdiction. In the present petition, it is Panlaquis turn to proffer the novel interpretation that the RTC properly cancelled Velascos COC when it ruled on his right to vote. The Court rejects the same.1avvphi1 It is not within the province of the RTC in a voters inclusion/exclusion proceedings to take cognizance of and determine the presence of a false representation of a material fact. It has no jurisdiction to try the issues of whether the misrepresentation relates to material fact and whether there was an intention to deceive the electorate in terms of ones qualifications for public office. The finding that Velasco was not qualified to vote due to lack of residency requirement does not translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render him ineligible. Assuming arguendo the plausibility of Panlaquis theory, the Comelec correctly observed that when the RTC issued its March 1, 2007 Decision, there was yet no COC to cancel because Velascos COC was filed only on March 28, 2007. Indeed, not only would it be in excess of jurisdiction but also beyond the realm of possibility for the RTC to rule that there was deliberate concealment on the part of Velasco when he stated under oath in his COC that he is a registered voter of Sasmuan despite his knowledge of the RTC decision which was yet forthcoming. IN FINE, the Comelec did not gravely abuse its discretion when it denied Panlaquis motion for proclamation. Since Velascos disqualification as a candidate had not become final before the elections, the Comelec properly applied the rule on succession. x x x To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the

conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and the right of the people to elect officials of their choice. Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally repudiated candidate as the voters choice. x x x12 WHEREFORE, the petition is DISMISSED. The assailed June 17, 2009 Resolution of the Commission on Elections is AFFIRMED. SO ORDERED.

[A.M. No. MTJ-00-1301. July 30, 2002]

Respondent judge denied committing any anomaly in ordering the inclusion of the thirtyfour (34) petitioners in the voters list of Barangay Kabulihan. He explained that his Order was based on his interviews with those petitioners,[3] who registered as voters in the said barangay during the registration on June 14-15 and 21-22, 1997, per Certification issued by the Office of the Election Officer.[4] In her comment, respondent clerk of court denied any hand in the issuance of the questioned Order, asserting that it was respondent judges official and personal act. She claimed that, as a mere clerk of court, she could not coerce respondent judge into issuing the Order. Moreover, she did not have any personal reason or motive in aiding the thirty-four (34) petitioners. Lastly, she invoked the presumption of regularity in the performance of her duties as clerk of court and prayed for the dismissal of the complaint against her.[5] In a Memorandum[6] dated March 17, 1999, the Office of the Court Administrator found respondents comments unsatisfactory. Thus, on April 21, 1999, this Court resolved to refer the case to the Executive Judge of the Regional Trial Court, Cabanatuan City, for investigation, report and recommendation.[7] On January 3, 2000, Executive Judge Johnson L. Ballutay submitted the following findings and recommendation: in the memorandum of respondent Judge Hector F. Dysangco, he admitted that he conducted merely personal interviews, he did not categorically state as to whether during his interviews, the counsel for the petitioners as well as the counsel for the oppositors were present. Likewise, the respondent Teresita Esteban admitted that the thirty-four (34) petitioners for inclusion were included and allowed to vote merely on the strength of interview conducted by Judge Hector F. Dysangco and that there was no hearing conducted. Considering, however, that Atty. Ambrosio Matias, Jr. appeared for the thirty-nine (39) petitioners for inclusion and Atty. Ellis F. Jacoba appeared for the oppositors, fair play requires that during the interview of the thirty-nine (39) petitioners at least this (sic) two (2) counsel must have been present which, however, as admitted by the Clerk of Court, Teresita S. Esteban, they were not present. Such failure to wait for Attys. Ambrosio Matias, Jr. and Ellis F. Jacoba, as in fact, they were both absent when the interviews were conducted by the Municipal Judge, is a conduct which should have been avoided if a fair hearing should have been afforded the two (2) lawyers. Such act of the respondent Judge is not only reprehensible, but also denial of due process. RECOMMENDATION IN VIEW OF THE FOREGOING, recommendation is hereby made that for the said act of respondent Judge Hector F. Dysangco, he should be meted a fine of FIVE THOUSAND (P5,000.00) PESOS with warning that a repetition of the same will be dealt with more severely. On the part of respondent Teresita S. Esteban, she must be reprimanded and warned that she should be more careful in her actuation and she should act strictly in accordance with her duties as stated in her job description.[8] In his Memorandum dated October 12, 2000, the Court Administrator found that respondent judge, in issuing the questioned Order, committed a lapse and recommended that he be fined in the amount of Five Thousand Pesos (P5,000.00) with a stern warning that a repetition of a similar offense will be dealt with more severely. The Court Administrator further recommended that the complaint against respondent clerk of court be dismissed for lack of merit. Thus: In order that a judge may be held liable for serious misconduct, there must be reliable evidence showing that the judicial acts complained for were corrupt or inspired by an intention to violate the law or were in persistent disregard of well-known legal rules (Ang Kek Chen vs. Judge Amalia Andrade, A.M. No. RTJ-

CIRILO I. MERCADO, ARSENIO L. CARPIO, PEDRO V. SORIANO and FLORDELIZA C. ALEJO, complainants, vs. JUDGE HECTOR F. DYSANGCO, IN HIS CAPACITY AS ACTING JUDGE OF 2nd MUNICIPAL CIRCUIT TRIAL COURT, GEN. NATIVIDAD LLANERA AND TERESITA S. ESTEBAN, CLERK OF COURT, respondents. DECISION SANDOVAL-GUTIERREZ, J.: In an election, one vote can spell the difference between victory and defeat. Trial judges are, therefore, advised to exercise caution in granting petitions for inclusion of voters. Fealty to the procedures outlined in the Omnibus Election Code is imperative, lest not only the integrity of the judiciary but also that of the election process would be undermined. In a sworn complaint[1] dated May 29, 1997, complainants Flordeliza C. Alejo, Arsenio L. Carpio, Cirilo I. Mercado, and Pedro V. Soriano charged Judge Hector F. Dysangco, Acting Presiding Judge of the 2nd Municipal Circuit Trial Court of Natividad-Llanera, Nueva Ecija, and Teresita S. Esteban, Clerk of Court of the same court, with grave misconduct. The complainants alleged that prior to the Barangay Elections of May 12, 1997, forty-eight (48) persons filed with the said court separate petitions for inclusion in the voters list. Of these forty-eight (48) petitioners, nine (9) were supporters of complainant Cirilo I. Mercado, while thirty-nine (39) were supporters of his opponent Alejandro Gonzales. Mercado and Gonzales were candidates for the position of Barangay Chairman of Kabulihan, Gen. Natividad, Nueva Ecija. Consequently, Mercado and the other complainants filed an opposition to the petition of the thirty-nine (39) supporters of Gonzales. The hearings of the petitions were set on April 17, April 28, May 6, May 8, and May 9, 1997. The first three scheduled hearings were cancelled due to the absence of either respondent judge or petitioners counsel. The May 8 hearing proceeded but only the nine (9) petitioners supporting complainant Mercado presented their evidence. The thirty-nine (39) petitioners supporting Gonzales requested the postponement of the hearing to May 9. However, on that day, those petitioners and their counsel failed to appear in court. Thus, respondent judge dismissed their petitions in open court. On May 10 (Saturday), respondent judge, when approached by herein complainants, assured them that he did not issue any order for the inclusion of the thirty-nine (39) petitioners in the voters list of Barangay Kabulihan. However, on the day of the election, complainants were surprised to find thirty-four (34) of the thirty-nine (39) petitioners with an Order signed by respondent judge and attested by respondent clerk of court,[2] directing their inclusion in the voters list of Barangay Kabulihan. Complainants averred that the issuance of the Order by respondent judge was highly anomalous, illegal, and patently of dubious origin because not one of the thirty-nine (39) petitioners presented evidence or appeared in the scheduled hearings. Respondents, therefore, aided and abetted thirty-four (34) flying voters in violating the Election Laws and in influencing the result of the Barangay Elections in Kabulihan, Gen. Natividad, Nueva Ecija. Respondents filed separate comments on the complaint.

99-1504, November 16, 1999). The misconduct must imply wrongful intention and not a mere error of judgment. In the instant case, complainants failed to present evidence to show that respondents acted with corrupt and malicious intent to violate the law so as to warrant the imposition of penalty of dismissal for grave misconduct. However, we concur with the observations of Executive Judge Ballutay that there appears to be a lapse in according herein complainant her right to due process when respondent judge interviewed the thirty-four (34) petitioners in the absence of counsels of both parties, sans a formal hearing. As to the liability of respondent Clerk of Court, this was not sufficiently established either in the complaint or the report of the investigating judge.[9] (Emphasis supplied) Accordingly, on February 11, 2002, this Court dismissed the complaint against respondent Clerk of Court Teresita S. Esteban.[10] We find respondent judge guilty of gross ignorance of the law and grave misconduct constituting violation of the Code of Judicial Conduct under Section 8, Rule 140 of the Revised Rules of Court, as amended.[11] Section 143 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, explicitly lays down the procedure governing petitions for inclusion, exclusion, and correction of names of voters, thus: SEC. 143. Common rules governing judicial proceedings in the matter of inclusion, exclusion, and correction of names of voters. -(a) Outside of regular office hours, no petition for inclusion, exclusion, or correction of names of voters shall be received. (b) Notices to the members of the board of election inspectors and to challenged voters shall state the place, day and hour in which such petition shall be heard, and such notice may be made by sending a copy thereof by registered mail or by personal delivery or by leaving it in the possession of a person of sufficient discretion in the residence of the said person or, in the event that the foregoing procedure is not practicable, by posting a copy in a conspicuous place in the city hall or municipal building and in two other conspicuous places within the city or municipality, at least ten days prior to the day set for the hearing. In the interest of justice and to afford the challenged voter every opportunity to contest the petition for exclusion, the court concerned may, when the challenged voter fails to appear in the first day set for the hearing, order that notice be effected in such manner and within such period of time as it may decide, which time shall in no case be more than ten days from the day the respondent is first found in default. (c) Each petition shall refer to only one precinct. (d) No costs shall be assessed in these proceedings. However, if the court should be satisfied that the application has been filed for the sole purpose of molesting the adverse party and causing him to incur expenses, it may condemn the culpable party to pay the costs and incidental expenses. (e) Any candidate who may be affected by the proceedings may intervene and present his evidence.

(f) The decision shall be based on the evidence presented. If the question is whether or not the voter is real or fictitious, his non-appearance on the day set for hearing shall be prima facie evidence that the registered voter is fictitious. In no case shall a decision be rendered upon a stipulation of facts. (g)These applications shall be heard and decided without delay. The decision shall be rendered within six hours after the hearing and within ten days from the date of its filing in court. Cases appealed to the regional trial court shall be decided within ten days from receipt of the appeal in the office of the clerk of court. In any case, the court shall decide these petitions not later than the day before the election and the decision rendered thereon shall be immediately final and executory, notwithstanding the provision of Section 138 on the finality of decisions. (Emphasis supplied) The clear mandate of the law is for the municipal judge a) to decide the petition on the basis of the evidence presented, b) to conduct a hearing thereon, and c) to render a decision within 10 days from the filing of the petition. Respondent judge, unfortunately, does not know the above legal provisions. He did not decide the petition on the basis of petitioners evidence. He could not have done so. Extant in the record is the fact that the thirty-nine (39) petitioners failed to attend any of the scheduled hearings. How then could they present evidence? Respondent judge claimed that he personally interviewed the thirty-four (34) petitioners on April 25, 1997 and that this was the basis of his Order. We are hard put to treat such personal interview as corresponding to the hearing required by law. A hearing means that a party is given the chance to adduce evidence to support his side of the case.[12] The minutes of the interview merely show that it is a superficial and mechanical inquiry on each petitioners age, citizenship, residence and years of residence in Barangay Kabulihan. The petitioners were not required to swear under oath or to present proof of their residence.[13] Their lawyers were not even notified. These incidents render the bare assertions of the thirty-four (34) petitioners doubtful and unreliable. Significantly, despite respondent judges allegation that the petition for inclusion was set for hearing on April 25, no notice of hearing was sent to the parties and their counsel. This was affirmed by Bonifacia C. Barcancel, the court stenographer, during the investigation conducted by Executive Judge Ballutay, thus: Court: xxx xxx

Q So, actually here as per record of the case there was no notice to their lawyer, there was no notice to the counsels, to the oppositors as well as counsel for the oppositors? A Yes, Your Honor, no notice. Q So, what happened was just a moro-moro? xxx xxx

Q It was just like this. It was not just like a proper trial that is what you want the Court to understand? A They were only interviewed, Your Honor. Q No trial, no lawyer? A Yes, Your Honor.[14] (Emphasis supplied)

That respondent judge did not conduct any hearing was confirmed by no less than respondent clerk of court, Teresita S. Esteban, thus: Court: xxx xxx Q Was there actual hearing on April 25, 1997 or merely interview which was conducted? A Only interview, Your Honor. Q No hearing? A The petitioners were there, Your Honor. Q Both counsels were not there? A None, Your Honor, on May 8, Atty. Matias was there, Your Honor. Q No, I am asking on April 25, 1997? A No lawyers, Your Honor. xxx xxx Q But there was actually no hearing, it was only/merely an interview which was conducted, there was no full blown hearing despite the opposition? A Only interview, Your Honor. Q So there was no hearing, interview merely? A Yes, Your Honor.[15] (Emphasis supplied) And, second, respondent judge issued the Order beyond the ten-day period required by Section 143. The petitions of the thirty-nine (39) Gonzales supporters were filed prior to April 17, 1997,[16] yet the Order granting them was issued only on May 9, 1997. In releasing the Order on a Friday and two days before the Barangay Elections, respondent judge effectively deprived the complainants of their right to appeal to the Regional Trial Court. Clearly, they were deprived of their right to due process. Respondent judges issuance of the controversial Order sans hearing and beyond the ten-day period constitutes gross ignorance of the law. His failure to observe the requirements of the Omnibus Election Code is inexcusable. As a judge of the Municipal Circuit Trial Court vested with the jurisdiction to hear and decide petitions for inclusion or exclusion of voters, he is expected to be familiar with these legal requirements because it can be assumed that these election cases were not the first cases he has decided.[17] Having accepted the exalted position of a judge, respondent judge must have the basic rules on the palm of his hand. He is expected to exhibit more than just a cursory acquaintance with the laws and rules of procedure.[18] The litigants will have faith in the administration of justice only if they believe that the occupants of the bench cannot be accused of deficiency in their grasp of legal principles. Respondent judge likewise committed gross misconduct constituting violation of Canon 2, Rule 2.01 of the Code of Judicial Conduct, which provides that, a judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary. That respondent judge exhibited partiality in favor of candidate Gonzales, being supported by the thirty-four (34) petitioners, is shown by the fact that he granted their petitions despite their absence on the scheduled hearings and their failure to present evidence. Surely, he did not accord the same treatment to the petitioners supporting complainant Mercado.[19] Not to be glossed over is respondent judges surreptitious issuance

of the assailed Order, i.e. without furnishing the complainants with a copy thereof and after misleading them that no such Order was issued. It needs to be reiterated over and over again, until it sinks into the consciousness of every judge, that litigants are entitled to nothing less than the cold neutrality of an impartial judge. The other elements of due process, like notice and hearing, would become meaningless if the ultimate decision is rendered by a partial or biased judge. Judges must not only render just, correct and impartial decisions, but must do so in a manner free of any suspicion as to their fairness, impartiality and integrity.[20] The reminder applies all the more sternly to trial judges, like herein respondent, because they are the judicial front-liners. They have direct contact with the litigating parties. They are the intermediaries between conflicting interests and the embodiments of the peoples sense of justice. Thus, their official conduct should be beyond reproach.[21] In fine, we hold that respondent judge has tainted the image of the judiciary to which he owes fealty and the obligation to keep it at all times unsullied and worthy of the peoples trust. [22] He did not just commit a simple lapse. Section 8, Rule 140 of the Revised Rules of Court, as amended,[23] classifies administrative charges as serious, less serious, or light. Gross ignorance of the law or procedure and gross misconduct constituting violation of the Code of Judicial Conduct are subsumed under serious charges. Thus, the fine of Five Thousand Pesos (P5,000.00) recommended by both the investigating Executive Judge and the Court Administrator is not commensurate to the administrative offenses committed by respondent judge. Section 11 of the same Rule provides: SEC. 11. Sanctions. A. If the respondent is guilty of a serious charge, any of the following sanctions may be imposed: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00. (Emphasis supplied) Considering the circumstances in this case, the penalty of suspension from office for four (4) months without salary and other benefits is deemed appropriate. WHEREFORE, for gross ignorance of law or procedure and gross misconduct constituting violation of the Code of Judicial Conduct, respondent Judge HECTOR F. DYSANGCO, Presiding Judge of the Municipal Trial Court of Sta. Rosa, Nueva Ecija, then Acting Presiding Judge of the 2nd Municipal Circuit Trial Court, Natividad-Llanera, same province, is SUSPENDED for four (4) months without salary and other benefits. He is warned that a repetition of the same or similar acts will be dealt with more severely. Let a copy of this Decision be attached to his records with this Court. SO ORDERED.

[G.R. No. 157013. July 10, 2003] ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and Management, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 ( The Overseas Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. The Court upholds the right of petitioner to file the present petition. R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes,appropriates funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement of an unconstitutional statute. [2] The Court has held that they may assail the validity of a law appropriating public funds[3] because expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.[4] The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,[5]where the Court held: Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.[6] Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved. The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs. Angara,[7] the Court held: In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once a controversy as

to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution.[8] In yet another case, the Court said that: . . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any official, betray the peoples will as expressed in the Constitution . . .[9] The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves the instant petition[10] and determine whether Congress has acted within the limits of the Constitution or if it had gravely abused the discretion entrusted to it.[11] The petitioner raises three principal questions: A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution? B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the VicePresident shall be proclaimed as winners by Congress? C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution? The Court will resolve the questions in seriatim. A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines? Section 5(d) provides: Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act:

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12] to support his claim. In that case, the Court held that a green card holder immigrant to the United States is deemed to have ab andoned his domicile and residence in the Philippines. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise;[13] that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote.[14] He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. Respondent COMELEC refrained from commenting on this issue.[15] In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to constitutional limitations; the legislature intended to enact a valid, sensible, and just law. In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives[16] wherein the Court held that the term residence has been understood to be synonymous with domicile under both Constitutions. He further argues that a person can have only one domicile b ut he can have two residences, one permanent (the domicile) and the other temporary;[17] and that the definition and meaning given to the term residencelikewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates the Courts ruling in Faypon vs. Quirino,[19] the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never abandoned their Philippine domicile.[20] Taking issue with the petitioners contention that green card holders are considered to have abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and permanent residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite intentions, i.e., animus manendi and animus revertendi; that

Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189.[22] The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit: SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act: a) Absentee Voting refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote; (Emphasis supplied) f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied) SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied)

in relation to Sections 1 and 2, Article V of the Constitution which read:


SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they propose to vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents

overseas are perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.[23] Laws that do not conform to the Constitution shall be stricken down for being unconstitutional. Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said: . . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself.[24] Thus, presumption of constitutionality of a law must be overcome convincingly: . . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the statute allows it to be done.[25] As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon,[26] the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest.[27] The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates in the constitutional convention.[28] R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. It is viewed thus: The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law.

Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence. Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of elections. The statutes should be construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof.[29] (Emphasis supplied) Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee.[30] However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. In Romualdez-Marcos,[31] the Court enunciated: Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence. In Ong vs. Republic, this court took the concept of domicile to mean an individuals permanent home, a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent. Based on the foregoing, domicile includes the twin elements of the fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by

any means necessarily so since no length of residence without intention of remaining will constitute domicile. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.[32] (Emphasis supplied) Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus: MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world. In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of residence in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence in the Election Law. Allow me to quote: A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in other places, practice of his avocation, reengaging in

business. When an election is to be held, the citizen who left his birthplace to improve his lot may decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities. So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider abandonment or loss of such residence of origin. In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and residence in the place where he will vote. As far as residence in the Philippines is concerned, the word residence means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile. MR. OPLE. Thank you for citing the jurisprudence. It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore,seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. [33] (Emphasis supplied) Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters: MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term absentee voting also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes. MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

MR. REGALADO. How about those people who cannot go back to the places where they are registered? MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another place to register and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest.[34] (Emphasis supplied) Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified Filipinos abroad is enlightening: MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad? THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same. THE PRESIDENT. Are we leaving it to the legislature to devise the system? FR. BERNAS. I think there is a very legitimate problem raised there. THE PRESIDENT. Yes. MR. BENGZON. I believe Commissioner Suarez is clarified. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila. MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement?

THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that he has the qualifications and none of the disqualifications to vote. MR. TINGSON. That is right. So does the Committee accept? FR. BERNAS. QUALIFIED FILIPINOS ABROAD? THE PRESIDENT. Does the Committee accept the amendment? MR. REGALADO. Madam President. THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the phrase absentee voting already took that into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly. THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system. MR. MONSOD. Yes. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. THE PRESIDENT. It is just to devise a system by which they can vote. MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied) Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have the qualifications

and none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the Constitutional Commission discussed how the system should work: MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City. In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I just want to make that clear for the record. MR. REGALADO. Madam President. THE PRESIDENT. What does Commissioner Regalado say? MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record. MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under the system. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines? MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here.

FR. BERNAS. So, he does not have to come home. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body. Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I move that we close the period of amendments.
[36]

(Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as v oters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,[37] the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact. Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says: Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of residence is synonymous with domicile. As the gentleman and I know, Mr. President, domicile is the intent to return to ones home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example,

but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos. If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The key to this whole exercise, Mr. President, is qualified. In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And residents (sic) is a qualification. I will lose votes here from permanent residents so-called green-card holders, but the Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a party to something that would affect or impair the Constitution. Look at what the Constitution says In the place wherein they propose to vote for at least six months immediately preceding the election. Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking about the Constitution. As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. That is why I am raising this point because I think we have a fundamental difference here. Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence and I think this is so well-entrenched that one need not argue about it residency has been interpreted as synonymous with domicile. But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote.

[38]

(Emphasis supplied) Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process,

to wit: SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act: a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is recognized as such in the host country because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not otherwise disqualified by law must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise. To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by legislation. Thus: Senator Villar. Yes, we are going back. It states that: For Filipino immigrants and those who have acquired permanent resident status abroad, a requirement for the registration is the submission of a Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consulate official authorized to administer oath Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those who have the intention of returning to be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from exercising this right to suffrage? Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder, that means he has acquired permanent residency in the United States, then he must indicate an intention to return. This is what makes for the definition of domicile. And to acquire the vote, we thought that we would require the immigrants and the greencard holders . . . Mr. President, the three administration senators are leaving, maybe we may ask for a vote [Laughter]. Senator Villar. For a merienda, Mr. President. Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a green-card holder should file an affidavit that he will go back to the Philippines is that, if he is already an immigrant or a green-card holder, that means he may not return to the country any more and that contradicts the definition of domicile under the law. But what we are trying to do here, Mr. President, is really provide the choice to the voter. The voter, after consulting his lawyer or after deliberation within the family, may decide No, I think we are risking our permanent status in the United States if we file an affidavit that we want to go back. But we want to give him the opportunity to make that decision. We do not want to make that decision for him. [39] (Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host countries. In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration, the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return shall be cause for the removal of their names from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while providing for safeguards to a clean election. Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. 11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) days from receipt thereof. The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration. 11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections. 11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter.

Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has

not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. Petitioner argues that should a sizable number of immigrants renege on their promise to return, the result of the elections would be affected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical. Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters. Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective. B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution? Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and party-list representatives. Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. 18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president, is unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . . The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates.

which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president. The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President.[41] Respondent COMELEC has no comment on the matter. Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency. Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president. In addition, the Court notes that Section 18.4 of the law, to wit: 18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . . [Emphasis supplied] clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and Vice-President shall be certified by the board of canvassers to Congress. Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach on the power of Congress to canv ass the votes for president and vice-president and the power to proclaim the winners for the said positions. The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas

Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the hands of Congress. C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution? Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit: Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied) He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the legislators. It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C[43] of the Constitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interference by any government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion. The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit: SEC. 17. Voting by Mail. 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee. ... ... . . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions. The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative Department that would as much as imply that Congress has concurrent power to enforce and administer election laws with the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to the exclusion of all others. The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner. However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a constitutional body. R.A. No. 9189 created the JCOC, as follows: SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority. The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis supplied) SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval. ... ... . . . (Emphasis supplied)

b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to monitor and evaluate the implementation of R.A. No. 9189 is geared towards possible amendments or revision of the law itself and thus, may be performed in aid of its legislation. However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to review, revise, amend and approve the Implementing Rules and Regulations

(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined by COMELEC. The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be independent. Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that [w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government.[44] In an earlier case, the Court elucidated: The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.
[45]

the Commission, whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC. Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, only upon review and approval of the Joint Congressional Oversight Committee found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189.[48] Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC. During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee. WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL: a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: subject to the approval of the Joint Congressional Oversight Committee; b) The portion of the last paragraph of Section 17.1, to wit: only upon review and approval of the Joint Congressional Oversight Committee; c) The second sentence of the first paragraph of Section 19, to wit: The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval; and d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission of the same law; for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC. The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect. SO ORDERED.

(Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent body except those specifically granted by the Constitution, that is, to review its decisions, orders and rulings.[46] In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act. This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation.[47] Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. The second sentence of the first paragraph of Section 19 stating that [t]he Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval, and the second sentence of the second paragraph of Section 25 stating that [i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by