EN BANC G.R. No.

L-21664

March 28, 1969

REPUBLIC
OF
THE
PHILIPPINES
and
THE
COMMISSIONER
OF
IMMIGRATION, petitioners, vs.
HON. MANOLO L. MADDELA, as Judge of the Court of First
Instance of Quezon, Branch II, and MIGUELA TAN
SUAT, respondents.G.R. No. L-21665
March 28,
1969
REPUBLIC
OF
THE
PHILIPPINES
and
THE
COMMISSIONER
OF
IMMIGRATION, petitioners,
vs. HON. MANOLO L. MADDELA, as Judge of the Court of
First Instance of Quezon, Branch II and CHAN PO
LAN, respondents.
MAKALINTAL, J.:
These are actually two (2) separate petitions for certiorari and
prohibition with preliminary injunction but are decided jointly
because the issues presented proceed from the same factual
background.
The pertinent facts are not disputed. On April 29, 1963 the
Court of First Instance of Quezon (Branch 11), Hon. Manolo L.
Maddela presiding, rendered a decision in its Special Proceeding
No. 4012, which is hereunder quoted in its entirety:
This is a petition to have the petitioner Miguela Tan
Suat, a Chinese National, to be declared a Filipino
citizen. The Solicitor General has been represented by
Assistant Fiscal Jose Veluz. During the trial it has been
established to the satisfaction of the Court that
sometime in the year 1937 petitioner was legally
married to Sy Ing Seng, a Filipino citizen; and that the
petitioner has all the qualifications and none of the
disqualifications to become a Filipino citizen. After the
submission of the evidence for the petitioner, the court
inquired from Fiscal Veluz if he has any opposition to
the petition to which the Fiscal answered that he has
no opposition, neither has he any evidence to warrant
opposition. The Court had it announced to the public if
there is any opposition to the petition of Miguela Tan
Suat to be declared a Filipino citizen and nobody in the
crowded courtroom registered his opposition.
IN VIEW OF ALL THE FOREGOING, petitioner Miguela
Tan Suat is hereby declared a Filipino citizen by
marriage and the Commissioner of Immigration is
hereby ordered to cancel the necessary alien
certificate of registration and immigrant certificate of
residence of the petitioner and to issue the
corresponding identification card.lwphi1.et
On the same day the same court rendered another similarly
worded, decision in its special Proceeding No. 4013, this time in
favor of Chan Po Lan. This second decision reads:
This is a petition to have the petitioner Chan Po Lan,
a Chinese National, to be declared a Filipino citizen.
The Solicitor General has been represented by
Assistant Fiscal Jose Veluz. During the trial it has been
established to the satisfaction of the Court that
sometime in the year 1961, petitioner was legally
married to Cu Bon Piao, a Filipino citizen; and the
petitioner has all the qualifications and more of the
disqualifications to become a Filipino citizen. After the
submission of the evidence for the petitioner, the court
inquired from Fiscal Veluz if he has any opposition to
the petition to which the Fiscal answered that he has
no opposition, neither has he any evidence to warrant
any opposition. The Court had it announced to the
public if there is any opposition to the petition of Chan
Po Lan to be declared a Filipino citizen and nobody in
the crowded courtroom registered his position.

IN VIEW OF THE FOREGOING, petitioner Chan Po Lan

is hereby declared a Filipino citizen by marriage and
the Commissioner of the Bureau of Immigration is
hereby ordered to cancel the necessary alien
certificate of registration and immigrant certificate of
residence of the petitioner and to issue the
corresponding identification card.
On July 1, 1963 the Solicitor General 1 filed separate notices of
appeal from said decisions, at the same time requesting an
extension of ten (10) days within which to file the
corresponding records on appeal. However, because of the
unexplained failure of the Clerk of Court of the Court of First
Instance of Quezon to forward the records immediately despite
repeated requests therefor by the Solicitor General, the latter,
unable to prepare the records on appeal, filed the instant
petitions instead, including the Commissioner of Immigration as
co-petitioner in view of the fact that the dispositive parts of the
decisions of the lower court are addressed to him for
compliance.
On August 10, 1963 we issued in each case a writ of
preliminary injunction to restrain execution and enforcement of
the judgment. Thereafter these two cases were submitted for
decision without any answer from the respondents.
Private respondents' identical prayer in the lower court was for
a declaration of their Filipino citizenship and for an order to
compel the Commissioner of Immigration to cancel their
respective alien certificates of registration on the ground that
they had married Filipino husbands. In granting the said prayer
the lower court was clearly in error. At that time jurisprudence
had already set the question at rest: no person claiming to be a
citizen may get a judicial declaration of citizenship.
Under our laws, there can be no action or proceeding
for the judicial declaration of the citizenship of an
individual. Courts of justice exist for the settlement of
justiciable controversies, which imply a given right,
legally demandable and enforceable, an act or
omission violative of said right, and a remedy, granted
or sanctioned by law, for said breach of right. As an
incident only of the adjudication of the right of the
parties to a controversy, the court may pass upon, and
make a pronouncement relative to, their status.
Otherwise, such a pronouncement is beyond judicial
power. Thus, for instance, no action or proceeding may
be instituted for a declaration to the effect that plaintiff
or petitioner is married, or single, or a legitimate child,
although a finding thereon may be made as a
necessary premise to justify a given relief available
only to one enjoying said status. At times, the law
permits the acquisition of a given status, such as
naturalization by judicial decree. But there is no similar
legislation authorizing the institution of a judicial
proceeding to declare that a given person is part of our
citizenry. (Tan v. Republic, L-14159, April 18, 1960).2
Before these cases were submitted for decision, the Solicitor
General filed a motion, dated February 14, 1964, to cite the
Clerk of Court of the Court of First Instance of Quezon for
contempt by reason of his failure to forward the records of
these cases to this Court despite our resolution to that effect. It
appears, however, that after the said resolution was issued the
Clerk did send those records and the same were received here
on January 24, 1964. The question of contempt has therefore
become moot.
WHEREFORE, the writs prayed for are hereby granted; the
questioned decisions are set aside and the writs of preliminary
injunction previously issued are made permanent. Costs against
private respondents.
ZITA NGO BURCA V. REPUBLIC OF THE PHILIPPINES G.R. No. L24252 (January 30, 1967)

This decision, although concerning the marriage of an alien

woman to a Filipino, is ironically reflective of the difficulty
Filipino women faced under the 1935 Constitution when they
automatically lost Philippine citizenship by marrying an alien.
Facts: Zita Ngo was married to Florencio Burca, a Filipino
citizen and a resident of Ormoc City. Prior to her marriage, Zita
was a Chinese citizen. The record showed, however, that she
was born in Gigaquit, Surigao, and was a holder of Native Born
Certificate of Residence No. 46333. She filed a petition
declaring herself as possessing all the qualifications and none of
the disqualifications for naturalization under Commonwealth Act
No. 473, and sought the cancellation of her alien certification of
registration with the Bureau of Immigration. The Solicitor
General opposed such petition and moved that the petition be
dismissed because: (1) there was no procedure under the law
that can judicially declare citizenship to a particular person; and
(2) fatal defects in the petition. After trial, Zita was declared a
Filipino citizen, primarily because she was married to a Filipino
citizen.
Held: The Supreme Court reversed the ruling of the lower court
and held that Zita was not a citizen of the Philippines. It had
the same ratiocination as those of its previous rulings, i.e. that
the Philippine citizenship of the husband does not ipso facto
grant Philippine citizenship to the alien wife. Indeed, the
political privilege of citizenship should not be handed out blindly
to any alien woman on the sole basis of her marriage to a
Filipinoirrespective of moral character, ideological beliefs, and
identification with Filipino ideals, customs and traditions.
[Emphasis supplied.] Thus, if an alien wife of a Filipino wishes
to acquire Philippine citizenship, the Supreme Court held that
she herself must file a petition for citizenship or naturalization.
1 Citizenship derived from that of another, as from a person
who holds citizenship by virtue of naturalization.
2 If there is no valid repatriation, then he can be summarily
deported for being an undocumented alien.
EN

BANC

[G.R.

No.

L-21289.

October

4,

1971.]

MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and

LAU
YUEN
YEUNG, Petitioners-Appellants,
v.
THE
COMMISSIONER
OF
IMMIGRATION, RespondentAppellee.
SYLLABUS
1. POLITICAL LAW; CITIZENSHIP; IMMIGRATION ACT; SECTION
9 (G) THEREOF, NOT APPLICABLE TO ALIEN WHO
LEGITIMATELY BECOMES FILIPINO. Section 9 (g) of the
Immigration Act does not apply to aliens who after coming into
the Philippines as temporary visitors, legitimately become
Filipino citizens or acquire Filipino citizenship. Such change of
nationality naturally bestows upon them the right to stay in the
Philippines permanently or not, as they may choose, and if they
elect to reside here, the immigration authorities may neither
deport
them
nor
confiscate
their
bonds.
2. ID.; ID.; NATURALIZATION; EFFECTS. The naturalization
of an alien visitor as a Philippine citizen logically produces the
effect of conferring upon him ipso facto all the rights of
citizenship including that of being entitled to permanently stay
in the Philippines outside the orbit of authority of the
Commissioner of Immigration vis-avis aliens, if only because by
its very nature and express provisions, the Immigration Law is
a law only for aliens and is inapplicable to citizens of the
Philippines.
3. STATUTORY CONSTRUCTION; WHERE LANGUAGE OF
STATUTE IS SUSCEPTIBLE OF TWO CONSTRUCTIONS, THAT
WHICH CARRIES OUT OBJECT PREVAILS. A statute is to be
construed with reference to its manifest object, and if the
language is susceptible of two constructions, one which will
carry out and the other defeat such manifest object, it should
receive the former construction. A construction will cause
objectionable results should be avoided and the court will, if
possible, place on the statute a construction which will not
result in injustice, and in accordance with the decisions
construing statutes, a construction will not result in oppression,
hardship, or inconveniences will also be avoided, as will a
construction which will prejudice public interest, or construction
resulting in unreasonableness, as well as a construction which

will

result

in

absurd

consequences.

4. ID.; CONSTRUCTION AVOIDED IF INCONSISTENT WITH

LEGISLATIVE INTENT. So a construction should, if possible,
be avoided if the result would be an apparent inconsistency in
legislative intent, as has been determined by the judicial
decisions, or which would result in futility, redundancy, or a
conclusion not contemplated by the legislature; and the court
should adopt that construction which will be the least likely to
produce mischief. Unless plainly shown to have been the
intention of the legislature an interpretation which would render
the requirements of the statute uncertain and vague is to be
avoided, and the court will not ascribe to the legislature an
intent
to
confer
an
illusory
right.
5. POLITICAL LAW; CITIZENSHIP; NATURALIZATION; POLICY
OF SELECTIVE ADMISSION, EXPLAINED. The avowed policy
of "selective admission" more particularly refers to a case
where a citizenship is sought to be acquired in a judicial
proceeding for naturalization. In such a case, the courts should
no doubt apply the national policy of selecting only those who
are worthy to be come citizens. There is here a choice between
accepting or rejecting the application for citizenship. But this
policy finds no application is cases where citizenship is
conferred by operation of law. In such cases, the courts have
no choice to accept or reject. If the individual claiming
citizenship by operations of law proves in legal proceedings that
he satisfies the statutory requirements, the cannot do
otherwise than to declare that he is a citizens of the Philippines.
6. ID.; ID.; ID.; ALIEN WOMAN MARRYING FILIPINO IPSO
FACTO BECOME CITIZEN PROVIDED NOT DISQUALIFIED BY
LAW. We now hold, all previous decisions of this Court
indicating otherwise notwithstanding, that under Section 15 of
Commonwealth Act 473, an alien woman marrying a Filipino,
native-born or naturalized, becomes ipso facto a Filipina
provided she is not disqualified to be a citizen of the Philippines
under Section 4 of the same law. Likewise, an alien woman
married an alien who is subsequently naturalized here follows
the Philippine citizenship of her husband the moment he takes
his oath as Filipino citizens, provided that she does not suffer
from any of the disqualifications under said Section 4.
7. ID.; ID.; ID.; ID.; NATURALIZATION PROCEEDING, NOT
REQUIRED. Section 16 is a parallel provision to Section 15. If
the widow of an applicant for naturalization a Filipino, who dies
during the proceedings, is not required to go through a
naturalization proceeding, in order to be considered as a Filipino
citizen hereof, it should not follow that the wife of a living
Filipino cannot be denied that same privilege. This is plain
common sense and there is absolutely no evidence that the
Legislature
intended
to
treat
them
differently.
8. ID.; ID.; ID.; MODES OF. The Constitution itself
recognizes as Philippine citizens "Those who are naturalized in
accordance with law" (Section 1 [5], Article IV, Philippine
Constitution). Citizens by naturalization, under this provision,
include not only those who are naturalized in accordance with
legal proceedings for the acquisition of citizenship, but also
those who acquire citizenship by "derivative naturalization" or
by operation of law, as, for example, the "naturalization" of an
alien wife through the naturalization of her husband, or by
marriage
of
an
alien
woman
to
a
citizen.
9. ID.; ID.; ID.; SECTION 15 OF REVISED NATURALIZATION
LAW; PURPOSE. The leading idea or purpose of Section 15
was to confer Philippine citizenship by operation of law upon
certain classes of aliens as a legal consequence of their
relationship, by blood or by affinity, to persons who are already
citizens of the Philippines. Whenever the fact of relationship of
the persons enumerated in the provisions concurs with the fact
of citizenship of the person to who they are related, the effect
is for said person to become ipso facto citizens of the
Philippines. "Ipso facto" as here used does not mean that all
alien wives and all minor children of the Philippine citizens,
from the mere fact of relationship, necessarily become such
citizens also. Those who do not meet the statutory
requirements do not ipso facto become citizens; they must
apply for naturalization in order to acquire such status. What it
does mean, however, is that in respect of those persons
enumerated in Section 15, the relationship to a citizen of the
Philippines is the operative fact which establishes the
acquisition of Philippine citizenship by them. Necessarily, it also
determines the point of time at which such citizenship
commences.
10. ID.; ID.; ID.; ID.; ALIEN WIFE DEEMED A CITIZEN IF SHE
MIGHT HERSELF BE NATURALIZED. The legislature could not

have intended that an alien wife should not be deemed a

Philippine citizen unless and until she proves that she might
herself be lawfully naturalized. Far from it, the law states in
plain terms that she shall be deemed a citizen of the Philippines
if she is one "who might herself be lawfully naturalized." The
proviso that she must be one "who might herself be lawfully
naturalized" is not a condition precedent to the vesting or
acquisition of citizenship; it is only a condition or a state of fact
necessary to establish her citizenship as a factum probandum,
i.e., as a fact established and proved in evidence. The word
"might," as used in that phrase, precisely implies that at the
time of her marriage to Philippine citizen, the alien woman "had
(the) power" to become such a citizen herself under the laws
then
in
force.
11. ID.; ID.; RES JUDICATA NOT APPLICABLE TO RULINGS
THEREON. Everytime the citizenship of a person is material
or indispensable in a judicial or administrative case, whatever
the corresponding court or administrative authority decides
therein as to such citizenship is generally not considered as res
adjudicata, hence it has to be threshed out again and again as
the
occasion
may
demand.
12. ID.; ID.; NATURALIZATION; PROCEDURES FOR ALIEN WIFE
TO ACQUIRE PHILIPPINE CITIZENSHIP. Regarding the steps
that should be taken by an alien woman married to a Filipino
citizen in order to acquire Philippine citizenship, the procedure
followed in the Bureau of Immigration is as follows: The alien
woman must file a petition for the cancellation of her alien
certificate of registration alleging, among other things, that she
is married to a Filipino citizen and that she is not disqualified
from acquiring her husbands citizenship pursuant to Section 4
of Commonwealth Act No. 473, as amended. Upon the filing of
the said petition, which should be accompanied or supported by
the joint affidavit of the petitioner and her Filipino husband to
the effect that the petitioner does not belong to any of the
groups disqualified by the cited Section from becoming
naturalized Filipino citizen, the Bureau of Immigration conducts
an investigation and thereafter promulgates its order or
decision
granting
or
denying
the
petition.

1960 and 1961 was P3,945.65 and P5,105.79, respectively, or

from about P330 to P425 a month and his income tax return for
1962 filed subsequently to the institution of this case, showed a
net income of P6,485.50 for that year, or about P540 a month,
and considering that petitioner has a wife and 3 children, one of
them of school age, at the time of the filing of his application
for naturalization, his aforementioned income is not a lucrative
one.
3. ID.; ID.; ID.; RENUNCIATION OF ALLEGIANCE TO FOREIGN
COUNTRY, PURPOSE. Section 12 of Commonwealth Act No.
473 provides, that before the naturalization certificate is issued,
the petitioner shall "solemnly swear," inter alia, that he
renounces "absolutely and forever all allegiance and fidelity to
any foreign prince, potentate" and particularly to the state "of
which" he is "a subject or citizen."cralaw virtua1aw library
4. ID.; ID.; ID.; ID.; REQUIREMENT REGARDING CHINESE
NATIONAL. A Chinese national cannot be naturalized as a
citizen of the Philippines, unless he has complied with the laws
of Nationalist China requiring previous permission of its Minister
of the Interior for the renunciation of nationality. The obvious
purpose of this requirement is to divest him of his nationality,
before acquiring Philippine citizenship, because, otherwise, he
would have two nationalities and owe allegiance to two (2)
distinct sovereignties, which our laws do not permit, except
that, pursuant to Republic Act No. 2639, "the acquisition of
citizenship by a natural born Filipino citizen from one of the
Iberian and any friendly democratic Ibero-American countries
shall not produce loss or forfeiture of the Philippine citizenship,
if the law of that country grants the same privilege to its
citizens and such had been agreed upon by treaty between the
Philippines and the foreign country from which citizenship is
acquired.
5. ID.; ID.; ID.; ID.; ID.; INSTANT CASE. Where it is
conceded that petitioner has not secured from the Minister of
the Interior of Nationalist China the permission required by the
laws thereof for a valid renunciation of his Chinese citizenship,
petitioners application for citizenship should be denied.

REYES, J.B.L., J., dissenting:chanrob1es virtual 1aw library

POLITICAL LAW; CITIZENSHIP; NATURALIZATION; ALIEN
WOMAN MARRIED TO FILIPINO MUST PROVE QUALIFICATIONS
UNDER SECTION 3. Our naturalization law separates
qualifications from disqualifications; the positive qualifications
under Section 3 thereof express a policy of restriction as to
candidates for naturalization as much as the disqualifications
under Section 4. And it has been shown in our decision in the
second Ly Giok Ha case (Ly Giok Ha v. Galang, L-21332 March
18, 1966, 16 SCRA 416) that those not disqualified under
Section 4 would not necessarily qualify under Section 3, even if
the residence qualification were disregarded. In other words, by
giving to Section 15 of our Naturalization Law the effect of
excluding only those women suffering from disqualification
under Section 3 could result in admitting to citizenship woman
that Section 2 intends to exclude. In these circumstances, I do
not see why American interpretation of the words who might
herself be lawfully naturalized should be considered hinding in
this jurisdiction.

EN

BANC

[G.R.

No.

L-27429.

August

27,

1969.]

IN THE MATTER OF THE PETITION FOR ADMISSION AS

CITIZEN OF THE PHILIPPINES, OH HEK HOW, PetitionerAppellee, v. REPUBLIC OF THE PHILIPPINES, OppositorAppellant.

1. POLITICAL LAW; NATURALIZATION; OATH OF ALLEGIANCE;

NULL AND VOID WHEN TAKEN AFTER APPROVAL OF
GOVERNMENTS TIMELY APPEAL. It is obvious that the oath
of allegiance taken by petitioner on November 28, 1966, and
the certificate of naturalization issued to petitioner in pursuance
thereof, as well as the authority given therefor by the lower
court, are null and void. Indeed, the order of February 9, had
not and up to the present has not become final and
executory, in view of the appeal duly taken by the Government.
What is more, petitioners second oath was taken, not only
after the filing of the notice of appeal and the submission of the
record on appeal, but, also, after the approval thereof. In other
words, the lower court had already lost its jurisdiction over the
case.
2. ID.; ID.: REQUIREMENTS; LUCRATIVE INCOME; P540 A
MONTH, NOT LUCRATIVE. Where petitioners net income in

EN

BANC

[G.R.

No.

30241.

December

29,

1928.]

GREGORIO NUVAL, Petitioner-Appellant, v. NORBERTO

GURAY,
ET
AL., Respondents.
NORBERTO
GURAY, Appellee.
SYLLABUS
1. ELECTIONS; ELECTION LISTS, PETITION TO EXCLUDE,
VOTER FROM; SUMMARY CHARACTER OF PROCEDURE. The
procedure prescribed by section 437 of the Administrative
Code, as amended by Act No. 3387, is of a summary character
and the judgment rendered therein is not appealable except
when the petition is tried before the justice of the peace of the
capital or the circuit judge, in which case it may be appealed to
the
judge
of
first
instance.
2. ID.; ID.; "QUO WARRANTO." The judgment rendered in
the case on the petition to cancel the respondent-appellees
name in the election list is not conclusive and does not
constitute res judicata in the present quo warranto proceeding,
as in the two cases, there is no identity either of parties, or of
the matter litigated, or of issues or causes of action.
3. ID.; RESIDENCE OF VOTER. It is an established rule that
"where a voter abandons his residence in a state and acquires
one in another state, he cannot again vote in the state of his
former residence until he has qualified by a new period of
residence" (20 Corpus Juris, p. 71, par. 28). "The term
residence as so used, is synonymous with domicile which
imports not only intention to reside in a fixed place, but also
personal presence in that place, coupled with conduct indicative
of such intention." (People v. Bender, 141 N. Y. S., 45.)

SECOND
1935.]

DIVISION

[G.R.

No.

43314.

December

19,

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

Graydon Moody, Plaintiff-Appellant, v. JUAN POSADAS,
JR., Collector of Internal Revenue, Defendant-Appellee.
SYLLABUS
1. INHERITANCE TAX; DOMICILE OF TAXPAYER. To effect the
abandonment of ones domicile, there must be a deliberate and
provable choice of a new domicile, coupled with actual

residence in the place chosen, with a declared or provable

intent that it should be ones fixed and permanent place of
abode, ones home. There is a complete dearth of evidence in
the record that M ever established a new domicile in a foreign
country.
2. INHERITANCE AND INCOME TAXES. As Ms legal domicile
at the time of his death was the Philippine Islands and his
estate had its situs here, the inheritance and income taxes here
involved were lawfully collected.

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

of Manila in an action to recover from the defendant-appellee as
Collector of Internal Revenue the sum of P77,018,39 as
inheritance taxes and P13,001.41 as income taxes assessed
against the estate of Arthur G. Moody, deceased.
The parties submitted to the court an agreed statement of facts
as
follows:jgc:chanrobles.com.ph
"I. That Arthur Graydon Moody died in Calcutta, India, on
February
18,
1931.
"II. That Arthur Graydon Moody executed in the Philippine
Islands a will, certified copy of which marked Exhibit AA is
hereto attached and made a part hereof, by virtue of which will,
he bequeathed all his property to his only sister, Ida M. Palmer,
who then was and still is a citizen and resident of the State of
New
York,
United
States
of
America.
"III. That on February 24, 1931, a petition for appointment of
special administrator of the estate of the deceased Arthur
Graydon Moody was filed by W. Maxwell Thebaut with the Court
of First Instance of Manila, the same being designated as case
No. 39113 of said court. Copy of said petition marked Exhibit
BB is hereto attached and made a part hereof.
"IV. That subsequently or on April 10, 1931, a petition was filed
by Ida M. Palmer, asking for the probate of said will of the
deceased Arthur Graydon Moody, and the same was, after
hearing, duly probated by the court in a decree dated May 5,
1931. Copies of the petition and of the decree marked Exhibits
CC and DD, respectively, are hereto attached and made parts
hereof.
"V. That on July 14, 1931, Ida M. Palmer was declared to be the
sole and only heiress of the deceased Arthur Graydon Moody by
virtue of an order issued by the court in said case No. 39113,
copy of which marked Exhibit EE is hereto attached and made a
part hereof; and that during the hearing for the declaration of
heirs, Ida M. Palmer presented as evidence a letter dated
February 28, 1925, and addressed to her by Arthur Graydon
Moody, copy of which marked Exhibit FF is hereto attached and
made
a
part
hereof.
"VI. That the property left by the late Arthur Graydon Moody
consisted principally of bonds and shares of stock of
corporations organized under the laws of the Philippine Islands,
bank deposits and other personal properties, as are more fully
shown in the inventory of April 17, 1931, filed by the special
administrator with the court in said case No. 39113, certified
copy of which inventory marked Exhibit GG is hereto attached
and made a part hereof. This stipulation does not, however,
cover the respective values of said properties for the purpose of
the
inheritance
tax.
"VII. That on July 22, 1931, the Bureau of Internal Revenue
prepared for the estate of the late Arthur Graydon Moody an
inheritance tax return, certified copy of which marked Exhibit
HH is hereto attached and made a part hereof.
"VIII. That on September 9, 1931, an income tax return for the
fractional period from January 1, 1931 to June 30, 1931,
certified copy of which marked Exhibit II is hereto attached and
made a part hereof, was also prepared by the Bureau of
Internal Revenue for the estate of the said deceased Arthur
Graydon
Moody.
"IX. That on December 3, 1931, the committee on claims and
appraisals filed with the court its report, certified copy of which
marked Exhibit KK is hereto attached and made a part hereof.
"X. That on September 15, 1931, the Bureau of Internal
Revenue addressed to the attorney for the administratrix Ida M.
Palmer a letter, copy of which marked Exhibit LL is hereto
attached
and
made
a
part
hereof.

"XI. That on October 15, 1931, the attorney for Ida M. Palmer
answered the letter of the Collector of Internal Revenue
referred to in the preceding paragraph. Said answer marked
Exhibit MM is hereto attached and made a part hereof.
"XII. That on November 4, 1931, and in answer to the letter
mentioned in the preceding paragraph, the Bureau of Internal
Revenue addressed to the attorney for Ida M. Palmer another
letter, copy of which marked Exhibit NN is hereto attached and
made
a
part
hereof.
"XIII. That on December 7, 1931, the attorney for Ida M.
Palmer again replied in a letter, marked Exhibit OO, hereto
attached
and
made
a
part
hereof.
"XIV. That the estate of the late Arthur Graydon Moody paid
under protest the sum of P50,000 on July 22, 1931, and the
other sum of P40,019,75 on January 19, 1932, making a total
of P90,019,75, of which P77,018.39 covers the assessment for
inheritance tax and the sum of P13,001.41 covers the
assessment
for
income
tax
against
said
estate.
"XV. That on January 21, 1932, the Collector of Internal
Revenue overruled the protest made by Ida M. Palmer through
her
attorney.
"XVI. The parties reserve their right to introduce additional
evidence
at
the
hearing
of
the
present
case.
"Manila,

August

15,

1933."cralaw

virtua1aw

library

In addition to the foregoing agreed statement of facts, both

parties introduced oral and documentary evidence from which it
appears that Arthur G. Moody, an American citizen, came to the
Philippine Islands in 1902 or 1903 and engaged actively in
business in these Islands up to the time of his death in
Calcutta, India, on February 18, 1931. He had no business
elsewhere and at the time of his death left an estate consisting
principally of bonds and shares of stock of corporations
organized under the laws of the Philippine Islands, bank
deposits and other intangibles and personal property valued by
the commissioners of appraisal and claims at P609,767.58 and
by the Collector of Internal Revenue for the purposes of
inheritance tax at P653,657.47. All of said property at the time
of his death was located and had its situs within the Philippine
Islands. So far as this record shows, he left no property of any
kind located anywhere else. In his will, Exhibit AA, executed
without date in Manila in accordance with the formalities of the
Philippine law, in which he bequeathed all his property to his
sister, Ida M. Palmer, he stated:jgc:chanrobles.com.ph
"I, Arthur G. Moody, a citizen of the United States of America,
residing in the Philippine Islands, hereby publish and declare
the following as my last Will and Testament . . . ."cralaw
virtua1aw
library
The substance of the plaintiffs cause of action is stated in
paragraph 7 of his complaint as follows:jgc:chanrobles.com.ph
"That there is no valid law or regulation of the Government of
the Philippine Islands under or by virtue of which any
inheritance tax may be levied, assessed or collected upon
transfer, by death and succession, of intangible personal
properties of a person not domiciled in the Philippine Islands,
and the levy and collection by defendant of inheritance tax
computed upon the value of said stocks, bonds, credits and
other intangible properties as aforesaid constituted and
constitutes the taking and deprivation of property without due
process of law contrary to the Bill of Rights and organic law of
the
Philippine
Islands."cralaw
virtua1aw
library
Section 1536 of the Revised Administrative Code (as amended)
provides
as
follows:jgc:chanrobles.com.ph
"SEC. 1536. Conditions and rate of taxation. Every
transmission by virtue of inheritance, devise, bequest, gift
mortis causa or advance in anticipation of inheritance, devise,
or bequest of real property located in the Philippine Islands and
real rights in such property; of any franchise which must be
exercised in the Philippine Islands; of any shares, obligations,
or bonds issued by any corporation or sociedad anonima
organized or constituted in the Philippine Islands in accordance
with its laws; of any shares or rights in any partnership,
business or industry established in the Philippine Islands or of
any personal property located in the Philippine Islands shall be
subject to the following tax:"
x
x
x

It is alleged in the complaint that at the time of his death,

Arthur G. Moody was a "non-resident of the Philippine Islands."
The answer, besides the general denial, sets up as a special
defense that "Arthur G. Moody, now deceased, was and prior to
the date of his death, a resident in the City of Manila, Philippine
Islands, where he was engaged actively in business." Issue was
thus joined on the question: Where was the legal domicile of
Arthur
G.
Moody
at
the
time
of
his
death?
The Solicitor-General raises a preliminary objection to the
consideration of any evidence that Moodys domicile was
elsewhere than in Manila at the time of his death based on the
proposition that as no such objection was made before the
Collector of Internal Revenue as one of the grounds of the
protest against the payment of the tax, this objection cannot be
considered in a suit against the Collector to recover the taxes
paid under protest. He relies upon the decision in the case of W.
C. Tucker v. A. C. Alexander, Collector (15 Fed. [2], 356). We
call attention, however, to the fact that this decision was
reversed in 275 U. S., 232; 72 Law. ed., 256, and the case
remanded for trial on the merits on the ground that the
requirement that the action shall be based upon the same
grounds, and only such, as were presented in the protest had
been waived by the collector. In the case before us no copy of
the taxpayers protest is included in the record and we have no
means of knowing its contents. We think, therefore, the
preliminary objection made on behalf of the appellee does not
lie.
We proceed, therefore, to the consideration of the question on
the merits as to whether Arthur G. Moody was legally domiciled
in the Philippine Islands on the day of his death. Moody was
never married and there is no doubt that he had his legal
domicile in the Philippine Islands from 1902 or 1903 forward
during which time he accumulated a fortune from his business
in the Philippine Islands. He lived in the Elks Club in Manila for
many years and was living there up to the date he left Manila
the latter part of February, 1928, under the following
circumstances: He was afflicted with leprosy in an advanced
stage and had been informed by Dr. Wade that he would be
reported to the Philippine authorities for confinement in the
Culion Leper Colony as required by the law. Distressed at the
thought of being thus segregated and in violation of his promise
to Dr. Wade that he would voluntarily go to Culion, he
surreptitiously left the Islands the latter part of February, 1928,
under cover of night, on a freighter, without ticket, passport or
tax clearance certificate. The record does not show where
Moody was during the remainder of the year 1928. He lived
with a friend in Paris, France, during the months of March and
April of the year 1929 where he was receiving treatment for
leprosy at the Pasteur Institute. The record does not show
where Moody was in the interval between April, 1929, and
November 26, 1930, on which latter date he wrote a letter,
Exhibit B, to Harry Wendt of Manila, offering to sell him his
interest in the Camera Supply Company, a Philippine
corporation, in which Moody owned 599 out of 603 shares. In
this letter, among other things, he states: "Certainly Ill never
return there to live or enter business again." In this same letter
he
says:jgc:chanrobles.com.ph
"I wish to know as soon as possible now (as to the purchase)
for I have very recently decided either to sell or put in a line of
school or office supplies . . . before I go to the necessary
investments in placing any side lines. I concluded to get your
definite reply to this . . . I have given our New York buying
agent a conditional order not to be executed until March and
this will give you plenty of time . . . anything that kills a
business is to have it peddled around as being for sale and this
is what I wish to avoid." He wrote letters dated December 12,
1930, and January 3, 1931, along the same line to Wendt. As
Moody died of leprosy less than two months after these letters
were written, there can be no doubt that he would have been
immediately segregated in the Culion Leper Colony had he
returned to the Philippine Islands. He was, therefore, a fugitive,
not from justice, but from confinement in the Culion Leper
Colony in accordance with the law of the Philippine Islands.
There is no statement of Moody, oral or written, in the record
that he had adopted a new domicile while he was absent from
Manila. Though he was physically present for some months in
Calcutta prior to the date of his death there, the appellant does
not claim that Moody had a domicile there although it was
precisely from Calcutta that he wrote and cabled that he wished
to sell his business in Manila and that he had no intention to
live there again. Much less plausible, it seems to us, is the
claim that he established a legal domicile in Paris in February,

1929. The record contains no writing whatever of Moody from

Paris. There is no evidence as to where in Paris he had any
fixed abode that he intended to be his permanent home. There
is no evidence that he acquired any property in Paris or
engaged in any settled business on his own account there.
There is no evidence of any affirmative factors that prove the
establishment of a legal domicile there. The negative evidence
that he told Cooley that he did not intend to return to Manila
does not prove that he had established a domicile in Paris. His
short stay of three months in Paris is entirely consistent with
the view that he was a transient in Paris for the purpose of
receiving treatments at the Pasteur Institute. The evidence in
the record indicates clearly that Moodys continued absence
from his legal domicile in the Philippines was due to and
reasonably accounted for by the same motive that caused his
surreptitious departure, namely, to evade confinement in the
Culion Leper Colony; for he doubtless knew that on his return
he would be immediately confined, because his affliction
became graver while he was absent than it was on the day of
his precipitous departure and he could not conceal himself in
the Philippines where he was well known, as he might do in
foreign
parts.
Our Civil Code (art. 40) defines the domicile of natural persons
as "the place of their usual residence." The record before us
leaves no doubt in our minds that the "usual residence" of this
unfortunate man, whom appellant describes as a "fugitive" and
"outcast", was in Manila where he had lived and toiled for more
than a quarter of a century, rather than in any foreign country
he visited during his wanderings up to the date of his death in
Calcutta. To effect the abandonment of ones domicile, there
must be a deliberate and provable choice of a new domicile,
coupled with actual residence in the place chosen, with a
declared or provable intent that it should be ones fixed and
permanent place of abode, ones home. There is a complete
dearth of evidence in the record that Moody ever established a
new
domicile
in
a
foreign
country.
The contention under the appellants third assignment of error
that the defendant collector illegally assessed an income tax of
P13,001.41 against the Moody estate is, in our opinion,
untenable. The grounds for this assessment, stated by the
Collector of Internal Revenue in his letter, Exhibit NN, appear to
us to be sound. That the amount of P259,986.69 was received
by the estate of Moody as dividends declared out of surplus by
the Camera Supply Company is clearly established by the
evidence. The appellant contends that this assessment involves
triple taxation: First, because the corporation paid income tax
on the same amount during the years it was accumulated as
surplus; second, that an inheritance tax on the same amount
was assessed against the estate, and third, the same amount is
assessed as income of the estate. As to the first, it appears
from the collectors assessment, Exhibit II, that the collector
allowed the estate a deduction of the normal income tax on
said amount because it had already been paid at the source by
the Camera Supply Company. The only income tax assessed
against the estate was the additional tax or surtax that had not
been paid by the Camera Supply Company for which the estate,
having actually received the income, is clearly liable. As to the
second alleged double taxation, it is clear that the inheritance
tax and the additional income tax in question are entirely
distinct. They are assessed under different statutes and we are
not convinced by the appellants argument that the estate
which received these dividends should not be held liable for the
payment of the income tax thereon because the operation was
simply the conversion of the surplus of the corporation into the
property of the individual stockholders. (Cf. U. S. v. Phellis, 257
U. S., 171, and Taft v. Bowers, 278 U. S., 460.) Section 4 of Act
No. 2833 as amended, which is relied on by the appellant,
plainly provides that the income from exempt property shall be
included
as
income
subject
to
tax.
Finding no merit in any of the assignments of error of the
appellant, we affirm the judgment of the trial court, first,
because the property in the estate of Arthur G. Moody at the
time of his death was located and had its situs within the
Philippine Islands and, second, because his legal domicile up to
the time of his death was within the Philippine Islands. Costs
against the Appellant.

EN

BANC

[G.R.

No.

MELECIO CLARINIO
REPUBLIC OF THE
SYLLABUS

L-22041.

May

19,

1966.]

UJANO, Petitioner-Appellant, v.
PHILIPPINES,Oppositor-Appellee.

1.
NATURALIZATION;
REACQUISITION
OF
PHILIPPINE
CITIZENSHIP; RESIDENCE REQUIREMENT. One of the
qualifications for reacquiring Philippine citizenship is that the
applicant shall have resided in the Philippines at least six
months before he applies for naturalization [Section 3(1),
Commonwealth
Act
No.
63].
2. ID.; ID.; ID; TERM "RESIDENCE" CONSTRUED. The term
"residence" has already been interpreted to mean the actual or
constructive permanent home otherwise known as legal
residence or domicile (Wilfredo Uytengsu v. Republic of the
Philippines, 95 Phil., 890; 50 Off. Gaz., 4781). A place in a
country or state where he lives and stays permanently, and to
which he intends to return after a temporary absence, no
matter how long, is his domicile. In other words, domicile is
characterized by animus manendi. So an alien who hae been
admitted into this country as a temporary visitor, either for
business or pleasure, or for reasons of health, though actually
present in this country cannot be said to have established his
domicile here because the period of his stay is only temporary
in nature and must leave when the purpose of his coming is
accomplished.

EN

BANC

[G.R.

No.

88831.

MATEO CAASI, Petitioner,

APPEALS
and
MERITO

November

8,

1990.]

v. THE HON. COURT OF

C.
MIGUEL,Respondents.

[G.R. No. 84508. November 8, 1990.] ANECITO

CASCANTE, Petitioner,
v.
THE
COMMISSION
ON
ELECTIONS and MERITO C. MIGUEL, Respondents.
SYLLABUS
1. POLITICAL LAW; SUFFRAGE AND ELECTIONS; ELIGIBILITY
OF CANDIDATES; IMMIGRATION TO THE UNITED STATES,
CONSTITUTED AN ABANDONMENT OF DOMICILE AND
RESIDENCE IN THE PHILIPPINES. In the case of Merito Miguel,
the Court deems it significant that in the "Application for
Immigrant Visa and Alien Registration" (Optional Form No. 230,
Department of State) which Miguel filled up in his own
handwriting and submitted to the US Embassy in Manila before
his departure for the United States in 1984, Miguels answer to
Question No. 21 therein regarding his "Length of intended stay
(if
permanently,
so
state),"
Miguels
answer
was,
"Permanently." On its face, the green card that was
subsequently issued by the United States Department of Justice
and Immigration and Registration Service to the respondent
Merito C. Miguel identifies him in clear bold letters as a
RESIDENT ALIEN. Despite his vigorous disclaimer, Miguels
immigration to the United States in 1984 constituted an
abandonment of his domicile and residence in the Philippines.
For he did not go to the United States merely to visit his
children or his doctor there, he entered the United States with
the intention to live there permanently as evidenced by his
application for an immigrants (not a visitors or tourists) visa.
Based on that application of his, he was issued by the U.S.
Government the requisite green card or authority to reside
there
permanently.
2. ID.; ID.; ID.; "IMMIGRATION" AND "IMMIGRANT", DEFINED.
"Immigration is the removing into one place from another;
the act of immigrating, the entering into a country with the
intention of residing in it. "An immigrant is a person who
removes into a country for the purpose of permanent
residence. As shown infra 84, however, statutes sometimes give
a broader meaning to the term immigrant." (3 CJS 674.)
3. ID.; ID.; ID.; SECTION 68 OF THE OMNIBUS ELECTION
CODE (B.P. BLG. 881), APPLICABLE TO THE CASE AT BAR, NOT
SECTION 18, ARTICLE IX OF THE 1987 CONSTITUTION.
Section 18, Article XI of the 1987 Constitution which provides
that "any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another
country during his tenure shall be dealt with by law" is not
applicable to Merito Miguel for he acquired the status of an
immigrant of the United States before he was elected to public
office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election
Code (B.P. Blg. 881), which provides: "Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, unless such person has waived his status as permanent
resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election
laws."cralaw
virtua1aw
library
4. ID.; ID.; ID.; REQUIRED PRIOR WAIVER OF GREEN CARD,

CONSTRUED. To be "qualified to run for elective office" in the

Philippines, the law requires that the candidate who is a green
card holder must have "waived his status as a permanent
resident or immigrant of a foreign country." Therefore, his act
of filing a certificate of candidacy for elective office in the
Philippines, did not of itself constitute a waiver of his status as
a permanent resident or immigrant of the United States. The
waiver of his green card should be manifested by some act or
acts independent of and done prior to filing his candidacy for
elective office in this country. Without such prior waiver, he was
"disqualified to run for any elective office" (Sec. 68, Omnibus
Election
Code).
5. ID.; ID.; ID.; RESIDENCE REQUIREMENT; REASON
THEREFOR. The reason for Section 68 of the Omnibus
Election Code is not hard to find Residence in the municipality
where he intends to run for elective office for at least one (1)
year at the time of filing his certificate of candidacy, is one of
the qualifications that a candidate for elective public office must
possess (Sec. 42, Chap. 1, Title 2, Local Government Code).
Miguel did not possess that qualification because he was a
permanent resident of the United States and he resided in
Bolinao for a period of only three (3) months (not one year)
after his return to the Philippines in November 1987 and before
he ran for mayor of that municipality on January 18, 1988. In
banning from elective public office Philippine citizens who are
permanent residents or immigrants of a foreign country, the
Omnibus Election Code has laid down a clear policy of excluding
from the right to hold elective public office those Philippine
citizens who possess dual loyalties and allegiance. The law has
reserved that privilege for its citizens who have cast their lot
with our country "without mental reservations or purpose of
evasion." The assumption is that those who are resident aliens
of a foreign country are incapable of such entire devotion to the
interest and welfare of their homeland for with one eye on their
public duties here, they must keep another eye on their duties
under the laws of the foreign country of their choice in order to
preserve their status as permanent residents thereof.
6. ID.; ID.; ID.; WAIVER OF IMMIGRANT STATUS, SHOULD BE
AS INDUBITABLE AS THE APPLICATION FOR IT. Miguels
application for immigrant status and permanent residence in
the U.S. and his possession of a green card attesting to such
status are conclusive proof that he is a permanent resident of
the U.S. despite his occasional visits to the Philippines. The
waiver of such immigrant status should be as indubitable as his
application for it. Absent clear evidence that he made an
irrevocable waiver of that status or that he surrendered his
green card to the appropriate U.S. authorities before he ran for
mayor of Bolinao in the local elections on January 18, 1988, our
conclusion is that he was disqualified to run for said public
office, hence, his election thereto was null and void.

EN BANC [G.R. No. 119976. September 18, 1995.]

IMELDA ROMUALDEZ-MARCOS, Petitioner, v.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, Respondents.
SYLLABUS
1. CIVIL LAW; DOMICILE; CONSTRUED. 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 v. 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.
2. ID.; ID.; RESIDENCE, CONSTRUED. 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.
3. ID.; ID.; DIFFERENTIATED FROM RESIDENCE. 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.
4. POLITICAL LAW; ELECTIONS; RESIDENCE USED
SYNONYMOUSLY WITH DOMICILE. For political purposes the
concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our
election law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used synonymously
with domicile.
5. ID.; ID.; ID.; ABSENCE FROM PERMANENT RESIDENCE
WITHOUT INTENTION TO ABANDON IT DOES NOT RESULT IN
LOSS OR CHANGE OF DOMICILE. So settled is the concept
(of domicile) in our election law that in these and other election
law cases, this Court has stated that the mere absence of an
individual from his permanent residence without the intention
to abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only
"domicile."cralaw virtua1aw library
6. ID.; ID.; ID.; FACT OF RESIDENCE, NOT STATEMENT IN
CERTIFICATE OF CANDIDACY, DECISIVE FACTOR IN
DETERMINING RESIDENCY QUALIFICATION REQUIREMENT.
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not an individual has satisfied the constitutions residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her
disqualification.
7. ID.; ID.; ID.; ID.; CASE AT BAR. It stands to reason
therefore, that petitioner merely committed an honest mistake
in jotting down the word "seven" in the space provided for the
residency qualification requirement. The circumstances leading
to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down
the period of her actual stay in Tolosa, Leyte instead of her
period of residence in the First district, which was "since
childhood" in the space provided. These circumstances and
events are amply detailed in the COMELECs Second Divisions
questioned resolution, albeit with a different interpretation. For
instance, when herein petitioner announced that she would be
registering in Tacloban City to make her eligible to run in the
First District, private respondent Montejo opposed the same,
claiming that petitioner was a resident of Tolosa, not Tacloban
City. Petitioner then registered in her place of actual residence
in the First District, which was Tolosa, Leyte, a fact which she
subsequently noted down in her Certificate of Candidacy. A
close look at said certificate would reveal the possible source of
the confusion: the entry for residence (Item No. 7) is followed
immediately by the entry for residence in the constituency
where a candidate seeks election. Having been forced by
private respondent to register in her place of actual residence in
Leyte instead of petitioners claimed domicile, it appears that
petitioner had jotted down her period of stay in her legal
residence or domicile. The juxtaposition of entries in Item 7 and
Item 8 the first requiring actual residence and the second
requiring domicile coupled with the circumstances
surrounding petitioners registration as a voter in Tolosa
obviously led to her writing down an unintended entry for which
she could be disqualified. This honest mistake should not,
however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing
than a mere entry on a piece of paper.

8. ID.; ID.; ID.; ABSENCE FROM LEGAL RESIDENCE OR

DOMICILE OF A TEMPORARY OR SEMI-PERMANENT NATURE
DOES NOT CONSTITUTE LOSS OF RESIDENCE. We have
stated, many times in the past, that an individual does not lose
his domicile even if he has lived and maintained residences in
different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence
from legal residence or domicile to pursue a profession, to
study or to do other things of a temporary or semi-permanent
nature does not constitute loss of residence. Thus, the assertion
by the COMELEC that "she could not have been a resident of
Tacloban City since childhood up to the time she filed her
certificate of candidacy because she became a resident of many
places" flies in the face of settled jurisprudence in which this
Court carefully made distinctions between (actual) residence
and domicile for election law purposes.
9. CIVIL LAW; DOMICILE; A MINOR FOLLOWS THE DOMICILE
OF HIS PARENTS; CASE AT BENCH. A minor follows the
domicile of his parents. As domicile, once acquired is retained
until a new one is gained, it follows that in spite of the fact of
petitioners being born in Manila, Tacloban, Leyte was her
domicile of origin by operation of law. This domicile was not
established only when her father brought his family back to
Leyte contrary to private respondents averments.
10. ID.; ID.; REQUISITES TO EFFECT CHANGE OF DOMICILE.
Domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate: 1. An actual
removal or an actual change of domicile; 2. A bona fide
intention of abandoning the former place of residence and
establishing a new one; and 3. Acts which correspond with the
purpose.
11. ID.; ID.; ID.; CASE AT BENCH. In the absence of clear
and positive proof based on these criteria, the residence of
origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a
change of residence requires an actual and deliberate
abandonment, and one cannot have two legal residences at the
same time. In the case at bench, the evidence adduced by
private respondent plainly lacks the degree of persuasiveness
required to convince this court that an abandonment of
domicile of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the voluntary act
of relinquishing petitioners former domicile with an intent to
supplant the former domicile with one of her own choosing
(domicilium voluntarium).
12. ID.; ID.; ID.; MARRIAGE, NOT A CAUSE FOR LOSS OF
DOMICILE. In this connection, it cannot be correctly argued
that petitioner lost her domicile of origin by operation of law as
a result of her marriage to the, late President Ferdinand E.
Marcos in 1954. For there is a clearly established distinction
between the Civil Code concepts of "domicile" and "residence."
The presumption that the wife automatically gains the
husbands domicile by operation of law upon marriage cannot
be inferred from the use of the term "residence" in Article 110
of the Civil Code because the Civil Code is one area where the
two concepts are well delineated. A survey of jurisprudence
relating to Article 110 or to the concepts of domicile or
residence as they affect the female spouse upon marriage
yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the
husbands choice of residence upon marriage. Article 110 is a
virtual restatement of Article 58 of the Spanish Civil Code of
1889: La mujer esta obligada a seguir a su marido donde
quiera que fije su residencia. Los Tribunales, sin embargo,
podran con justa causa eximirla de esta obligacion cuando el
marido transende su residencia a ultramar o a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia"
in the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this

interpretation is further strengthened by the phrase "cuando el

marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence,"
referring to another positive act of relocating the family to
another home or place of actual residence. The article obviously
cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another not only
once, but as often as the husband may deem fit to move his
family, a circumstance more consistent with the concept of
actual residence. Very significantly, Article 110 of the Civil Code
is found under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband
and wife to live together. The duty to live together can only be
fulfilled if the husband and wife are physically together. This
takes into account the situations where the couple has many
residences (as in the case of petitioner). If the husband has to
stay in or transfer to any one of their residences, the wife
should necessarily be with him in order that they may "live
together." Hence, it is illogical to conclude that Art. 110 refers
to "domicile" and not to "residence." Otherwise, we shall be
faced with a situation where the wife is left in the domicile while
the husband, for professional or other reasons, stays in one of
their (various) residences.
13. ID.; ID.; TERM RESIDENCE REFERS TO "ACTUAL
RESIDENCE." The term residence may mean one thing in
civil law (or under the Civil Code) and quite another thing in
political law. What stands clear is that insofar as the Civil Code
is concerned affecting the rights and obligations of husband
and wife the term residence should only be interpreted to
mean "actual residence." The inescapable conclusion derived
from this unambiguous civil law delineation therefore, is that
when petitioner married the former President in 1954, she kept
her domicile of origin and merely gained a new home, not a
domicilium necessatium.
14. STATUTORY CONSTRUCTION; STATUTE REQUIRING
RENDITION OF JUDGMENT WITHIN SPECIFIED TIME, MERELY
DIRECTORY. It is a settled doctrine that a statute requiring
rendition of judgment within a specified time is generally
construed to be merely directory, "so that non-compliance with
them does not invalidate the judgment on the theory that if the
statute had intended such result it would have clearly indicated
it." The difference between a mandatory and a directory
provision is often made on grounds of necessity.
15. CONSTITUTIONAL LAW; COMELEC; JURISDICTION TO
DECIDE PENDING DISQUALIFICATION CASE NOT LOST BY
HOLDING OF ELECTIONS. With the enactment of Sections 6
and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is
evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending disqualification case
under Section 78 of B.P. 881 even after the elections.
16. ID.; LEGISLATURE; HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL (HRET); SOLE JUDGE OF ALL CONTESTS
RELATING TO ELECTIONS, RETURNS AND QUALIFICATIONS OF
MEMBERS OF CONGRESS; CANDIDATE MUST HAVE BEEN
PROCLAIMED. As to the House of Representatives Electoral
Tribunals supposed assumption of jurisdiction over the issue of
petitioners qualifications after the May 8, 1995 elections,
suffice it to say that HRETs jurisdiction as the sole judge of all
contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become
a member of the House of Representatives. Petitioner not being
a member of the House of Representatives, it is obvious that
the HRET at this point has no jurisdiction over the question.
PUNO, J., concurring opinion:chanrob1es virtual 1aw library
1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN AND
DOMICILE OF CHOICE; ESTABLISHED BY CANDIDATES
CONTINUED STAY IN HER PARENTS RESIDENCE. There is no
question that petitioners original domicile is in Tacloban, Leyte.
Her parents were domiciled in Tacloban. Their ancestral house

is in Tacloban. They have vast real estate in the place.

Petitioner went to school, and thereafter worked there. Justice
Puno considers Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her domicile of
origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there
even after reaching the age of majority.
2. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY
MARRIAGE AND DELIBERATE CHOICE OF A DIFFERENT
DOMICILE BY THE HUSBAND. There is also no question that
in May, 1954, petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became subject
to change by law, and the right to change it was given by
Article 110 of the Civil Code. The difficult issues start as we
determine whether petitioners marriage to former President
Marcos ipso facts resulted in the loss of her Tacloban domicile.
Justice Puno respectfully submits that her marriage by itself
alone did not cause her to lose her Tacloban domicile. Article
110 of the Civil Code merely gave the husband the right to fix
the domicile of the family. In the exercise of the right, the
husband may explicitly choose the prior domicile of his wife, in
which case, the wifes domicile remains unchanged. The
husband can also implicitly acquiesce to his wifes prior domicile
even if it is different. It is not, therefore, the mere fact of
marriage but the deliberate choice of a different domicile by the
husband that will change the domicile of a wife from what it
was prior to their marriage. The domiciliary decision made by
the husband in the exercise of the right conferred by Article
110 of the Civil Code binds the wife. Any and all acts of a wife
during her coverture contrary to the domiciliary choice of the
husband cannot change in any way the domicile legally fixed by
the husband. These acts are void not only because the wife
lacks the capacity to choose her domicile but also because they
are contrary to law and public policy.
3. ID.; ID.; ID.; CASE AT BENCH. In the case at bench, it is
not disputed that former President Marcos exercised his right to
fix the family domicile and established it in Batac, Ilocos Norte,
where he was then the congressman. At that particular point of
time and throughout their married life, petitioner lost her
domicile in Tacloban, Leyte. Since petitioners Batac domicile
has been fixed by operation of law, it was not affected in 1959
when her husband was elected as Senator, when they lived in
San Juan, Rizal and where she registered as a voter. It was not
also affected in 1965 when her husband was elected President,
when they lived in Malacaang Palace, and when she registered
as a voter in San Miguel, Manila. Nor was it affected when she
served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the
incumbency of her husband as President of the nation. Under
Article 110 of the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence shows he
did not effect any such change. To a large degree, this follows
the common law that "a woman on her marriage loses her own
domicile and by operation of law, acquires that of her husband,
no matter where the wife actually lives or what she believes or
intends."cralaw virtua1aw library
4. ID.; ID.; ID.; PRINCIPLE THAT AFTER THE HUSBANDS
DEATH, WIFE RETAINS LAST DOMICILE OF HER HUSBAND,
SHOULD NOW BE ABANDONED. The more difficult task is
how to interpret the effect of the death on September 28, 1989
of former President Marcos on petitioners Batac domicile. The
issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is espoused by
our distinguished colleague, Mr. Justice Davide, Jr., heavily
relying on American authorities. He echoes the theory that after
the husbands death, the wife retains the last domicile of her
husband until she makes an actual change. The American case
law that the wife still retains her dead husbands domicile is
based on ancient common law which we can no longer apply in
the Philippine setting today. The presumption that the wife
retains the domicile of her deceased husband is an extension of
this common law concept. The concept and its extension have
provided some of the most iniquitous jurisprudence against
women. The rulings relied upon by Mr. Justice Davide in CJS

and AM JUR 2d are American state court decisions handed

down between the years 1917 and 1938, or before the time
when women were accorded equality of rights with men.
Undeniably, the womens liberation movement resulted in farranging state legislations in the United States to eliminate
gender inequality. However, it has been declared that under
modern statutes changing the status of married women and
departing from the common law theory of marriage, there is no
reason why a wife may not acquire a separate domicile for
every purpose known to the law. In publishing in 1969 the
Restatement of the Law, Second (Conflict of laws 2d), the
reputable American Law Institute also categorically stated that
the view of Blackstone." . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically
the same rights and powers as her unmarried sister." In light of
the Family Code which abrogated the inequality between
husband and wife as started and perpetuated by the common
law, there is no reason in espousing the anomalous rule that
the wife still retains the domicile of her dead husband. Article
110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code.
By its repeal, it becomes a dead-letter law, and we are not free
to resurrect it by giving it further effect in any way or manner
such as by ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.
5. ID.; ID.; ID.; WIFE REACQUIRED DOMICILE OF ORIGIN
UPON DEATH OF HUSBAND. Prescinding from these
premises, Justice Puno respectfully submits that the better
stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioners Batac
dictated domicile did not continue after her husbands death;
otherwise, she would have no domicile and that will violate the
universal rule that no person can be without a domicile at any
point of time. This stance also restores the right of petitioner to
choose her domicile before it was taken away by Article 110 of
the Civil Code, a right now recognized by the Family Code and
protected by the Constitution. Likewise, Justice Puno cannot
see the fairness of the common law requiring petitioner to
choose again her Tacloban domicile before she could be
released from her Batac domicile. She lost her Tacloban
domicile not through her act but through the act of her
deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The
law disabling her to choose her own domicile has been
repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead
husbands domicile. There is neither rhyme nor reason for this
gender-based burden.
6. ID.; ID.; ID.; ID.; DELIBERATE CHOICE BY WIFE MANIFEST
IN CASE AT BAR. But even assuming arguendo that there is
need for convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample evidence to
this effect. In her affidavit submitted to the respondent
COMELEC, petitioner averred among others that: "I was not
permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside,
after repairs and renovations were completed. In August 1994,
I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay
and live there." It is then clear that in 1992 petitioner
reestablished her domicile in the First District of Leyte. It is not
disputed that in 1992, she first lived at the house of her brother
in San Jose, Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot, Tolosa, Leyte. Both
Tacloban City and the municipality of Olot are within the First
District of Leyte. Since petitioner reestablished her old domicile
in 1992 in the First District of Leyte, she more than complied
with the constitutional requirement of residence." . . for a
period of not less than one year immediately preceding the day
of the election," i.e., the May 8, 1995 elections.
7. POLITICAL LAW; ELECTIONS; CERTIFICATE OF CANDIDACY;
AMENDMENT TO CORRECT A BONA FIDE MISTAKE, ALLOWED
AS A MATTER OF RIGHT. The amendment of a certificate of

candidacy to correct a bona fide mistake has been allowed by

this Court as a matter of course and as a matter of right. (Alialy
v. COMELEC, 2 SCRA 957, 960 [1961]; Canceran v. COMELEC,
107 Phil. 607 [1960]; Gabaldon v. COMELEC , 99 Phil. 898
[1956])
8. CONSTITUTIONAL LAW; FREEDOM FROM HARASSMENT AND
DISCRIMINATION OF BONA FIDE CANDIDATES FOR PUBLIC
OFFICE; RIGHT VIOLATED BY LEGAL AND EXTRA-LEGAL
OBSTACLES AGAINST CANDIDATE TO PREVENT HER FROM
RUNNING. Section 10, Article IX-C of the Constitution
mandates that "bona fide candidates for any public office shall
be free from any form of harassment and discrimination." A
detached reading of the records of the case at bench will show
that all forms of legal and extra-legal obstacles have been
thrown against petitioner to prevent her from running as the
peoples representative in the First District of Leyte. In
petitioners Answer to the petition to disqualify her, she averred
that when respondent (petitioner herein) announced that she
was intending to register as a voter in Tacloban City and run for
Congress in the First District of Leyte, petitioner (Montejo)
immediately opposed her intended registration by writing a
letter stating that she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent (petitioner
herein) had registered as a voter in Tolosa following completion
of her six-month actual residence therein, petitioner (Montejo)
filed a petition with the COMELEC to transfer the town of Tolosa
from the First District to the Second District and pursued such
move up to the Supreme Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner herein) as petitioners
(Montejos) opponent in the congressional election in the First
District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to
remove the town of Tolosa out of the First District and to make
it a part of the new district, to achieve his purpose. However,
such bill did not pass the Senate. Having failed on such moves,
petitioner now filed the instant petition, for the same objective,
as it is obvious that he is afraid to submit himself along with
respondent (petitioner herein) for the judgment and verdict of
the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995. All these
attempts to misuse our laws and legal processes are forms of
rank harassments and invidious discriminations against
petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by
torturing the meaning of equality, the end result of which will
allow the harassment and discrimination of petitioner who has
lived a controversial life, a past of alternating light and shadow.
There is but one Constitution for all Filipinos. Petitioner cannot
be adjudged by a "different" Constitution, and the worst way to
interpret the Constitution is to inject in its interpretation, bile
and bitterness.
9. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY
REQUIREMENT; RATIONALE; CANDIDATES LIFE TIME
CONTACTS WITH FIRST DISTRICT OF LEYTE SATISFIES INTENT.
In Gallego v. Vera, we explained that the reason for this
residence requirement is "to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community
and not identified with the latter, from an elective office to
serve that community . . .." Petitioners lifetime contacts with
the First District of Leyte cannot be contested. Nobody can
claim that she is not acquainted with its problems because she
is a stranger to the place. None can argue she cannot satisfy
the intent of the Constitution.
10. ID.; ID.; ELECTION CASES; DOMINANT CONSIDERATION
IN RESOLUTION THEREOF IS THE NEED TO EFFECTUATE WILL
OF THE ELECTORATE. In resolving election cases, a dominant
consideration is the need to effectuate the will of the electorate.
The election results show that petitioner received Seventy
Thousand Four Hundred Seventy-One (70,471) votes, while
private respondent got only Thirty-Six Thousand Eight Hundred
Thirty-Three (36,833) votes. Petitioner is clearly the
overwhelming choice of the electorate of the First District of
Leyte and this is not a sleight of statistics. We cannot frustrate
this sovereign will on highly arguable technical considerations.

In case of doubt, we should lean towards a rule that will give

life to the peoples political judgment.
FRANCISCO, J., concurring opinion:chanrob1es virtual 1aw
library
1. CIVIL LAW; DOMICILE; DEFINED. Domicile has been
defined as that place in which a persons habitation is fixed,
without any present intention, of removing therefrom, and that
place is properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere special
or temporary purpose, but with a present intention of making it
his permanent home (28 C.J.S. 1). It denotes a fixed
permanent residence to which when absent for business, or
pleasure, or for like reasons one intends to return, and depends
on facts and circumstances, in the sense that they disclose
intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
2. ID.; ID.; CLASSIFICATIONS. Domicile is classified into
domicile of origin and domicile of choice. The law attributes to
every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom
he is legally dependent at the time of his birth. While the
domicile of origin is generally the place where one is born or
reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on
the other hand, is the place which the person has elected and
chosen for himself to displace his previous domicile; it has for
its true basis or foundation the intention of the person (28
C.J.S. 6). A third classification is domicile by operation of law
which attributes to a person a domicile independent of his own
intention or actual residence, ordinarily resulting from legal
domestic relations, as that of the wife arising from marriage, or
the relation of a parent and a child (28 C.J.S. 7).
3. ID.; ID.; CHANGE OF DOMICILE; REQUISITES. In order to
hold that a person has abandoned his domicile and acquired a
new one called domicile of choice, the following requisites must
concur, namely, (a) residence or bodily presence in the new
locality, (b) intention to remain there or animus manendi, and
(c) an intention to abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA
408, 415).
4. POLITICAL LAW; ELECTIONS; RESIDENCE SYNONYMOUS
WITH DOMICILE. In election law, when our Constitution
speaks of residence for election purposes it means domicile (Co
v. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 713; Nuval v. Guray, 52 Phil. 645, 651).
5. ID.; ID.; ID.; NOT ABANDONED OR LOST BY REGISTRATION
OF VOTER IN A PLACE OTHER THAN HIS PLACE OF ORIGIN.
In several decisions, though, the Court has laid down the rule
that registration of a voter in a place other than his place of
origin is not sufficient to constitute abandonment or loss of
such residence (Faypon v. Quirino, 96 Phil. 294, 300).
Respondent Commission offered no cogent reason to depart
from this rule except to surmise petitioners intent of
abandoning her domicile of origin.
6. ID.; ID.; ID.; MARITAL DOMICILE; LOST UPON DEATH OF
HUSBAND; WIFE REVERTED TO HER ORIGINAL DOMICILE;
CASE AT BAR. Tacloban, Leyte, is petitioners domicile of
origin which was involuntarily supplanted with another, i.e.,
Batac, Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the domicile
of her husband. In my view, the reason for the law is for the
spouses to fully and effectively perform their marital duties and
obligations to one another. The question of domicile, however,
is not affected by the fact that it was the legal or moral duty of
the individual to reside in a given place (28 C.J.S. 11). Thus,
while the wife retains her marital domicile so long as the
marriage subsists, she automatically loses it upon the latters
termination, for the reason behind the law then ceases.
Otherwise, Petitioner, after her marriage was ended by the
death of her husband, would be placed in a quite absurd and
unfair situation of having been freed from all wifely obligations
yet made to hold on to one which no longer serves any

meaningful purpose. It is my view therefore that petitioner

reverted to her original domicile of Tacloban, Leyte upon her
husbands death without even signifying her intention to that
effect.
7. ID.; ID.; ID.; PARTY CLAIMING THAT A PERSON HAS
ABANDONED OR LOST HIS RESIDENCE OF ORIGIN MUST
SHOW AND PROVE SUCH LOSS OR ABANDONMENT. It is for
the private respondent to prove, not for petitioner to disprove,
that petitioner has effectively abandoned Tacloban, Leyte for
Batac, Ilocos Norte or for some other place/s. The clear rule is
that it is the party (herein private respondent) claiming that a
person has abandoned or lost his residence of origin who must
show and prove preponderantly such abandonment or loss
(Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the
presumption is strongly in favor of an original or former
domicile, as against an acquired one (28 C.J.S. 16). Private
respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has
acquired, whether voluntarily or involuntarily, a new domicile to
replace her domicile of origin.
8. ID.; ID.; ID.; ONE-YEAR RESIDENCE REQUIREMENT;
REQUIREMENT MET IN CASE AT BENCH. The records, on the
contrary, clearly show that petitioner has complied with the
constitutional one-year residence requirement. After her exile
abroad, she returned to the Philippines in 1991 to reside in
Olot, Tolosa, Leyte, but the Presidential Commission on Good
Government which sequestered her residential house and other
properties forbade her necessitating her transient stay in
various places in Manila. In 1992, she ran for the position of
president writing in her certificate of candidacy her residence as
San Juan, Metro Manila. After her loss therein, she went back
to Tacloban City, acquired her residence certificate and resided
with her brother in San Jose. She resided in San Jose, Tacloban
City until August of 1994 when she was allowed by the PCGG to
move and reside in her sequestered residential house in Olot,
Tolosa, Leyte. It was in the same month of August when she
applied for the cancellation of her previous registration in San
Juan, Metro Manila in order to register anew as voter of Olot,
Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the
date when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election
from San Juan, Metro Manila to San Jose, Tacloban City, and
resided therein until August of 1994. She later transferred to
Olot, Tolosa, Leyte. It appearing that both Tacloban City and
Tolosa, Leyte are within the First Congressional District of
Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the oneyear qualification required by the 1987 Constitution.
PADILLA, J., dissenting opinion:chanrob1es virtual 1aw library
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI;
COMELEC DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN
DISQUALIFYING CANDIDATE FOR FAILURE TO COMPLY WITH
THE ONE YEAR RESIDENCE QUALIFICATION. The one year
residence period is crucial regardless of whether or not the
term "residence" is to be synonymous with "domicile." In other
words, the candidates intent and actual presence in one district
must in all situations satisfy the length of time prescribed by
the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent
in Congress and the one-year residence in said district would be
the minimum period to acquire such familiarity, if not
versatility. Petitioners certificate of candidacy filed on 8 March
1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of
"seven months" to the query of "residence in the constituency
wherein I seek to be elected immediately preceding the
election." It follows from all the above that the Comelec

committed no grave abuse of discretion in holding that

petitioner is disqualified from the position of representative for
the 1st congressional district of Leyte in the elections of 8 May
1995, for failure to meet the "not less than one-year residence
in the constituency (1st district, Leyte) immediately preceding
the day of election (8 May 1995)."cralaw virtua1aw library
2. POLITICAL LAW; ELECTIONS; DISQUALIFICATION;
CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER
OF VOTES CAN NOT BE DECLARED WINNER OF ELECTIVE
OFFICE WHERE CANDIDATE WHO OBTAINED THE HIGHEST
NUMBER OF VOTES IS DECLARED DISQUALIFIED OR NOT
ELIGIBLE FOR OFFICE. The fact that the candidate who
obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected
does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of
the elective office. The votes cast for a dead, disqualified, or
non-eligible person may not be valid to vote the winner into
office or maintain him there. However, in the absence of a
statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should
not be treated as stray, void or meaningless. (Labo v. Comelec,
G.R. 86564, August 1, 1989, 176 SCRA 1)
3. ID.; ID.; REPUBLIC ACT NO. 6646 (AN ACT INTRODUCING
REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER
PURPOSES); VOTES CAST FOR A CANDIDATE DECLARED
DISQUALIFIED BY FINAL JUDGMENT SHALL NOT BE COUNTED;
CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER
OF VOTES WHERE THE WINNING CANDIDATE IS DECLARED
DISQUALIFIED DEEMED THE WINNER. Under Sec. 6 of RA
6646, (An Act Introducing Additional Reforms in the Electoral
System and for other purposes) (84 O.G. 905, 22 February
1988) it is provided that: . . . 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. The law is
clear that in all situations, the votes cast for a disqualified
candidate SHALL NOT BE COUNTED. The law has also validated
the jurisdiction of the Court or Commission on Election to
continue hearing the petition for disqualification in case a
candidate is voted for and receives the highest number of
votes, if for any reason, he is not declared by final judgment
before an election to be disqualified. What happens then when
after the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal
contemplation, he no longer received the highest number of
votes. It stands to reason that Section 6 f RA 6646 does not
make the second placer the winner simply because a "winning
candidate is disqualified," but that the law considers him as the
candidate who had obtained the highest number of votes as a
result of the votes cast for the disqualified candidate not being
counted or considered. As this law clearly reflects the legislative
policy on the matter, then there is no reason why this Court
should not re-examine and consequently abandon the doctrine
in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate
alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is
mandated by no less than the Constitution. ACCORDINGLY, I
vote to DISMISS the petition and to order the Provincial Board
of Canvassers of Leyte to proclaim the candidate receiving the
highest number of votes, from among the qualified candidates,
as the duly elected representative of the 1st district of Leyte.
REGALADO, J., dissenting opinion:chanrob1es virtual 1aw
library
1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN; CONSTRUED.
The domicile of the parents at the time of birth, or what is
termed the "domicile of origin," constitutes the domicile of an
infant until abandoned, or until the acquisition of a new
domicile in a different place.
2. ID.; ID.; KINDS. Domicile is said to be of three kinds, that
is, domicile by birth, domicile by choice, and domicile by

operation of law. The first is the common case of the place of

birth or domicilium originis; the second is that which is
voluntarily acquired by a party or domicilium proprio motu; the
last which is consequential, as that of a wife arising from
marriage, is sometimes called domicilium necesarium.
3. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY
MARRIAGE. When petitioner contracted marriage in 1954
with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, she
acquired her husbands domicile of origin in Batac, Ilocos Norte
and correspondingly lost her own domicile of origin in Tacloban
City.
4. ID.; ID.; REQUISITES FOR CHANGE OF DOMICILE. To
successfully effect a change of domicile, one must demonstrate
(a) an actual removal or an actual change of domicile, (b) a
bona fide intention of abandoning the former place of residence
and establishing a new one, and (c) acts which correspond with
the purpose.
5. ID.; ID.; ONCE LOST CAN BE RECOVERED IN ACCORDANCE
WITH LAW; NO AUTOMATIC REVERSION OR REACQUISITION
OF DOMICILE. Domicile once lost in accordance with law can
only be recovered likewise in accordance with law. However, we
are here being titillated with the possibility of an automatic
reversion to or reacquisition of a domicile of origin after the
termination of the cause for its loss by operation of law. The
majority agrees that since petitioner lost her domicile of origin
by her marriage, the termination of the marriage also
terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this
argument.
6. ID.; ID.; VOLUNTARY ABANDONMENT OF DOMICILE DOES
NOT AUTOMATICALLY RESTORE DOMICILE OF ORIGIN. If a
party loses his domicile of origin by obtaining a new domicile of
choice, he thereby voluntarily abandons the former in favor of
the latter. If, thereafter, he abandons that chosen domicile, he
does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent
and desire to establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do. Ones
subsequent abandonment of his domicile of choice cannot
automatically restore his domicile of origin, not only because
there is no legal authority therefor but because it would be
absurd. Pursued to its logical consequence, that theory of ipso
jure reversion would rule out the fact that said party could
already very well have obtained another domicile, either of
choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code,
which the majority inexplicably invokes, advisedly does not
regulate this contingency since it would impinge on ones
freedom of choice.
7. ID.; ID.; ID.; CASE AT BAR. In the instant case, petitioner
not only voluntarily abandoned her domicile of choice (unless
we assume that she entered into the marital state against her
will) but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile by operation
of law. In fact, this is even a case of both voluntary and legal
abandonment of a domicile of origin. With much more reason,
therefore, should we reject the proposition that with the
termination of her marriage in 1989, petitioner had supposedly
per se and ipso facto reacquired her domicile of origin which
she lost in 1954. Otherwise, this would be tantamount to saying
that during the period of marital coverture, she was
simultaneously in possession and enjoyment of a domicile of
origin which was only in a state of suspended animation.
8. ID.; ID.; DOMICILE BY OPERATION OF LAW; AFTER THE
HUSBANDS DEATH, THE WIFE HAS THE RIGHT TO ELECT HER
OWN DOMICILE. The American rule is likewise to the effect
that while after the husbands death the wife has the right to

elect her own domicile, she nevertheless retains the last

domicile of her deceased husband until she makes an actual
change. In the absence of affirmative evidence, to the contrary,
the presumption is that a wifes domicile or legal residence
follows that of her husband and will continue after his death.
9. ID.; FAMILY CODE; RIGHT AND POWER TO FIX FAMILY HOME
CAN NOT AFFECT DOMICILE FIXED BY LAW. I cannot
appreciate the premises advanced in support of the majoritys
theory based on Articles 68 and 69 of the Family Code. All that
is of any relevance therein is that under this new code, the
right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the
first place was never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for her
husband, long prior thereto. It is true that a wife now has the
coordinate power to determine the conjugal or family domicile,
but that has no bearing on this case. With the death of her
husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that
joint power was and is no longer called for or material in the
present factual setting of this controversy. Instead, what is of
concern in petitioners case was the matter of her having
acquired or not her own domicile of choice.
10. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY
REQUIREMENT; NOT MET BY CANDIDATES RESIDENCY FOR
SEVEN (7) MONTHS IMMEDIATELY PRECEDING ELECTION;
PREVIOUS RESIDENCY AT DOMICILE OF ORIGIN NOT COUNTED
WHERE THE SAME WAS LOST DUE TO MARRIAGE AND NOT
REACQUIRED AFTER HUSBANDS DEATH. In sum, petitioner
having lost Tacloban City as her domicile of origin since 1954
and not having automatically reacquired any domicile therein,
she cannot legally claim that her residency in the political
constituency of which it is a part continued since her birth up to
the present. Respondent commission was, therefore, correct in
rejecting her pretension to that effect in her amended/corrected
certificate of candidacy, and in holding her to her admission in
the original certificate that she had actually resided in that
constituency for only seven months prior to the election.
DAVIDE, JR., J., dissenting opinion:chanrob1es virtual 1aw
library
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI;
PROPER REMEDY FROM A DECISION, ORDER OR RULING OF
THE COMELEC. Under Section 7, Subdivision A, Article IX of
the Constitution, decisions, orders, or rulings of the COMELEC
may be brought to this Court only by the special civil action
for certiorari under Rule 65 of the Rules of Court (Aratuc v.
COMELEC , 88 SCRA 251 [1979]; Dario v. Mison, 176 SCRA 84
[1989]).
2. ID.; ID.; ID.; ID.; WRIT OF, CERTIORARI; MAY BE GRANTED
ONLY IN ABSENCE OR EXCESS OF JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION. A writ of certiorari may be
granted only if the COMELEC has acted without or in excess of
jurisdiction or with grave abuse of discretion (Section 1, Rule
65, Rules of Court).
3. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BENCH, NOT A CASE
FOR ISSUANCE OF WRIT. Since the COMELEC has,
undoubtedly, jurisdiction over the private respondents petition,
the only issue left is whether it acted with grave abuse of
discretion in disqualifying the petitioner. My careful and
meticulous perusal of the challenged resolution of 24 April 1995
of the COMELEC Second Division and the En Banc resolution of
7 May 1995 discloses total absence of abuse of discretion,
much less grave abuse thereof. The resolution of the Second
Division dispassionately and objectively discussed in minute
details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack
of residence in the First Congressional District of Leyte. It has
not misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her
residence.

4. POLITICAL LAW; ELECTIONS; DOMICILE; LOSS OR

ABANDONMENT THEREOF IN CASE AT BAR. I respectfully
submit that the petitioner herself has provided the COMELEC,
either by admission or by documentary evidence, overwhelming
proof of the loss or abandonment of her domicile of origin,
which is Tacloban City and not Tolosa, Leyte. Assuming that she
decided to live again in her domicile of origin, that became her
second domicile of choice, where her stay, unfortunately, was
for only seven months before the day of the election. She was
then disqualified to be a candidate for the position of
Representative of the First Congressional District of Leyte. A
holding to the contrary would be arbitrary.
5. ID.; ID.; ID.; DOMICILE OF CHOICE LOST BY OPERATION OF
LAW BY MARRIAGE. It may indeed be conceded that the
petitioners domicile of choice was either Tacloban City or
Tolosa, Leyte. Nevertheless, she lost it by operation of law
sometime in May 1954 upon her marriage to the then
Congressman (later, President) Ferdinand E. Marcos. A domicile
by operation of law is that domicile which the law attributes to
a person, independently of his own intention or actual
residence, as results from legal domestic relations as that of
the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her
new domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Under common law, a
woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where
the wife actually lives or what she believes or intends. Her
domicile is fixed in the sense that it is declared to be the same
as his, and subject to certain limitations, he can change her
domicile by changing his own (25 Am Jur 2d Domicile 48, 37).
6. CIVIL LAW; FAMILY CODE; FAMILY DOMICILE; FIXING
THEREOF, A JOINT DECISION OF SPOUSES. It must,
however, be pointed out that under Article 69 of the Family
Code, the fixing of the family domicile is no longer the sole
prerogative of the husband, but is now a joint decision of the
spouses, and in case of disagreement the court shall decide.
The said article uses the term "family domicile," and not family
residence, as "the spouses may have multiple residences, and
the wife may elect to remain in one of such residences, which
may destroy the duty of the spouses to live together and its
corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on
the Family Code of the Philippines, [1988], 102).
7. ID.; DOMICILE, DOMICILE BY OPERATION OF LAW; DEATH
OF HUSBAND REVIVES POWER OF WIFE TO ACQUIRE HER OWN
DOMICILE; NO AUTOMATIC RESTORATION OF WOMANS
DOMICILE OF ORIGIN. The theory of automatic restoration of
a womans domicile of origin upon the death of her husband,
which the majority opinion adopts to overcome the legal effect
of the petitioners marriage on her domicile, is unsupported by
law and by jurisprudence. The settled doctrine is that after the
husbands death the wife has a right to elect her own domicile,
but she retains the last domicile of her husband until she makes
an actual change (28 C.J.S. Domicile 12, 27). Or on the death
of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death
(25 Am Jur 2d Domicile 62, 45). Note that what is revived is
not her domicile of origin but her power to acquire her own
domicile.
8. ID.; ID.; LOSS OF DOMICILE; MARRIAGE, NOT A GROUND.
I find to be misplaced the reliance by the majority opinion on
Faypon v. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice ones
profession, or engage in business in other states does not
constitute loss of such residence or domicile. So is the reliance
on Section 117 of the Omnibus Election Code which provides
that transfer of residence to any other place by reason of ones
"occupation; profession; employment in private and 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" is

not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for
the exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to consider
the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice),
then such cases and legal provision should have expressly
mentioned the same.
9. ID.; ID.; ABANDONMENT THEREOF IN CASE AT BENCH.
This Court should not accept as gospel truth the self-serving
claim of the petitioner in her affidavit that her "domicile or
residence of origin is Tacloban City," and that she "never
intended to abandon this domicile or residence of origin to
which [she] always intended to return whenever absent." Such
a claim of intention cannot prevail over the effect of Article 110
of the Civil Code. Besides, the facts and circumstances or the
vicissitudes of the petitioners life after her marriage in 1954
conclusively establish that she had indeed abandoned her
domicile of origin and had acquired a new one animo et facto
(KOSSUTH KENT KENNAN, A Treatise on Residence and
Domicile, [1934], 214, 326).
10. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY;
SELF-SERVING STATEMENT, WITHOUT PROBATIVE VALUE.
Neither should this Court place complete trust on the
petitioners claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in the
certificate of candidacy. Such a claim is self-serving and, in the
light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake,
honest or otherwise; what she stated was the truth.
11. ID.; ID.; BURDEN OF PROOF; ONE WHO ASSERTS A FACT
HAS THE BURDEN OF PROVING IT. The majority opinion also
disregards a basic rule in evidence that he who asserts a fact or
the affirmative of an issue has the burden of proving it
(Imperial Victory Shipping Agency v. NLRC , 200 SCRA 178
[1991]; P.T. Cerna Corp. v. Court of Appeals, 221 SCRA 19
[1993]). Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband.
The majority opinion rules or at least concludes that" [b]y
operation of law (domicilium necesarium), her legal domicile at
the time of her marriage automatically became Batac, Ilocos
Norte." That conclusion is consistent with Article 110 of the Civil
Code. Since she is presumed to retain her deceased husbands
domicile until she exercises her revived power to acquire her
own domicile, the burden is upon her to prove that she has
exercised her right to acquire her own domicile. She miserably
failed to discharge that burden.
ROMERO, J., separate opinion:chanrob1es virtual 1aw library
POLITICAL LAW; ELECTIONS; RESIDENCE; DOMICILE BY
OPERATION OF LAW; WIDOW NO LONGER BOUND BY THE
DOMICILE OF THE DEPARTED HUSBAND; WIDOW MAY CHOOSE
DOMICILE; ONE YEAR RESIDENCE REQUIREMENT, MET IN CASE
AT BAR. Bearing in mind that the term "resident" has been
held to be synonymous with "domicile" for election purposes, it
is important to determine whether petitioners domicile was in
the First District of Leyte and if so, whether she had resided
there for at least a period of one year. Undisputed is her
domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same
may have been changed when she married Ferdinand E.
Marcos, then domiciled in Batac, by operation of law. Assuming
it did, his death certainly released her from the obligation to
live with him at the residence fixed by him during his lifetime.
What may confuse the layman at this point is the fact that the
term "domicile" may refer to "domicile of origin," "domicile of
choice," or "domicile by operation of law," which subject we
shall not belabor since it has been amply discussed by the
ponente and in the other separate opinions. A widow, like the
petitioner and others similarly situated, can no longer be bound

by the domicile of the departed husband, if at all she was

before. Neither does she automatically revert to her domicile of
origin, but exercising free will, she may opt to reestablish her
domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First
District of Leyte, petitioner amply demonstrated by overt acts,
her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set
up her domicile in the two places sufficed to meet the one-year
requirement to run as Representative of the First District of
Leyte.
VITUG, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; CONSTITUTIONAL PROVISIONS,
GENERALLY MANDATORY IN CHARACTER. Constitutional
provisions must be taken to be mandatory in character unless,
either by express statement or by necessary implication, a
different intention is manifest (see Marcelino v. Cruz, 121 SCRA
51).
2. ID.; COMELEC.; WITH JURISDICTION OVER PREPROCLAMATION CONTROVERSIES. The Commission on
Election (the "COMELEC") is constitutionally bound to enforce
and administer "all laws and regulations relative to the conduct
of election . . . (Art. IX, C, Sec. 2, Constitution) that, there
being nothing said to the contrary, should include its authority
to pass upon the qualification and disqualification prescribed by
law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the
COMELECs jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT ON THE
OBSERVANCE OF ONE-YEAR RESIDENCY REQUIREMENT OF THE
COMELEC, GENERALLY UPHELD ON APPEAL. The matter
before us specifically calls for the observance of the
constitutional one-year residency requirement. This issue
(whether or not there is here such compliance), to my mind, is
basically a question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court. Using the above
tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed
resolution.
4. CIVIL LAW; DOMICILE; PLACE OF HABITUAL RESIDENCE.
For civil law purposes, i.e., as regards the exercise of civil rights
and the fulfillment of civil obligations, the domicile of a natural
person is the place of his habitual residence (see Article 50,
Civil Code).
5. POLITICAL LAW; ELECTIONS; DOMICILE SYNONYMOUS
WITH RESIDENCE. 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. Domicile denotes a
fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. . . .
(Romualdez v. Regional Trial Court, Branch 7, Tacloban City
[226 SCRA 408, 409])
6. ID.; ID.; ID.; ELEMENTS FOR CHANGE OF DOMICILE.
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. 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.

7. CONSTITUTIONAL LAW; COMELEC; ITS JURISDICTION ENDS

WHEN JURISDICTION OF ELECTORAL TRIBUNAL BEGINS.
The COMELECs jurisdiction, in the case of congressional
elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have
theretofore been duly proclaimed and has since become a
"member" of the Senate or the House of Representatives.
8. ID.; ID.; PROCLAMATION OF CANDIDATE, NOT A
MINISTERIAL FUNCTION. The question can be asked on
whether or not the proclamation of a candidate is just a
ministerial function of the Commission on Elections dictated
solely on the number of votes cast in an election exercise. I
believe, it is not. A ministerial duty is an obligation the
performance of which, being adequately defined, does not allow
the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of
ascertaining all the facts and conditions such as may be
required by law before a proclamation is properly done.
9. POLITICAL LAW; ELECTIONS; CANDIDATE WHO OBTAINED
THE SECOND HIGHEST NUMBER OF VOTES NOT NECESSARILY
ENTITLED TO BE DECLARED WINNER OF ELECTIVE OFFICE
WHERE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF
VOTES IS LATER DECLARED DISQUALIFIED OR NOT ELIGIBLE.
I should like to next touch base on the applicability to this
case of Section 6 of Republic Act No. 6646, in relation to
Section 72 of Batas Pambansa Blg. 881. I realize that in
considering the significance of the law, it may be preferable to
look for not so much the specific instances they ostensibly
would cover as the principle they clearly convey. Thus, I will not
scoff at the argument that it should be sound to say that votes
cast in favor of the disqualified candidate, whenever ultimately
declared as such, should not be counted in his or her favor and
must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of
the now prevailing doctrine first enunciated in the case of
Topacio v. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon v. Comelec (103 SCRA 687 [1981]), and
Santos v. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo v. Ramos (136 SCRA
435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201
SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito v.
Comelec was a unanimous decision penned by Justice Kapunan
and concurred in by Chief Justice Narvasa, Justices Feliciano,
Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official
leave).
MENDOZA, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; COMELEC; WITHOUT POWER TO
DISQUALIFY CANDIDATE FOR LACK OF ELIGIBILITY. In my
view the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground
that they lack eligibility for the office to which they seek to be
elected. I think that it has none and that the qualifications of
candidates may be questioned only in the event they are
elected, by filing a petition for quo warranto or an election
protest in the appropriate forum, not necessarily in the
COMELEC but, as in this case, in the House of Representatives
Electoral Tribunal. That the parties in this case took part in the
proceedings in the COMELEC is of no moment. Such
proceedings were unauthorized and were not rendered valid by
their agreement to submit their dispute to that body. To be
sure, there are provisions denominated for "disqualification,"
but they are not concerned with a declaration of the ineligibility
of a candidate. These provisions are concerned with the
incapacity (due to insanity, incompetence or conviction of an
offense) of a person either to be a candidate or to continue as a
candidate for public office. There is also a provision for the
denial or cancellation of certificates of candidacy, but it applies
only to cases involving false representations as to certain
matters required by law to be stated in the certificates.

2. POLITICAL LAW; ELECTION LAWS; ABSENCE OF PROVISION

FOR PRE-PROCLAMATION CONTEST BASED ON INELIGIBILITY.
The various election laws will be searched in vain for
authorized proceedings for determining a candidates
qualifications for an office before his election. There are none in
the Omnibus Election Code (B.P. Blg. 881), in the Electoral
Reforms Law of 1987 (R.A. No. 6646), or in the law providing
for synchronized elections (R.A. No. 7166). There are, in other
words, no provisions for pre-proclamation contests but only
election protests or quo warranto proceedings against winning
candidates.

3. ID.; ID.; ID.; REASONS. Three reasons

may be cited to explain the absence of an
authorized proceeding for determining before
election the qualifications of a candidate. First
is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for
determining his eligibility for the office.
Second is the fact that the determination of a
candidates eligibility, e.g., his citizenship or,
in this case, his domicile, may take a long
time to make, extending beyond the
beginning of the term of the office. Third is the
policy underlying the prohibition against preproclamation cases in elections for President,
Vice President, Senators and members of the
House of Representatives. (R.A. No. 7166, 15)
The purpose is to preserve the prerogatives of
the House of Representatives Electoral
Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election,
returns and qualifications of members of
Congress or of the President and Vice
President, as the case may be. By providing in
253 for the remedy of quo warranto for
determining an elected officials qualifications
after the results of elections are proclaimed,
while being conspicuously silent about a preproclamation remedy based on the same
ground, the Omnibus Election Code, or OEC,
by its silence underscores the policy of not
authorizing any inquiry into the qualifications
of candidates unless they have been elected.
4. ID.; ID.; PETITION TO DISQUALIFY
CANDIDATE FOR INELIGIBILITY FALLS WITHIN
THE JURISDICTION OF ELECTORAL TRIBUNAL.
Montejos petition before the COMELEC was
not a petition for cancellation of certificate of
candidacy under 78 of the Omnibus Election
Code, but essentially a petition to declare
private respondent ineligible. It is important to
note this, because, as will presently be
explained, proceedings under 78 have for
their purpose to disqualify a person from
being a candidate, whereas quo warranto
proceedings have for their purpose to
disqualify a person from holding public office.
Jurisdiction over quo warranto proceedings
involving
members
of
the
House
of
Representatives is vested in the Electoral
Tribunal
of
that
body.
5. REMEDIAL LAW; SUPREME COURT; QUO WARRANTO;
QUALIFICATION OF CANDIDATE PASSED UPON ONLY AFTER
PROCLAMATION OF CANDIDATE. In the only cases in which
this Court dealt with petitions for the cancellation of certificates

of candidacy, the allegations were that the respondent

candidates had made false representations in their certificates
of candidacy with regard to their citizenship, age, or residence.
But in the generality of cases in which this Court passed upon
the qualifications of respondents for office, this Court did so in
the context of election protests or quo warranto proceedings
filed after the proclamation of the respondents or protestees as
winners.

1995, declaring petitioner Imelda Romualdez-Marcos ineligible

and ordering her proclamation as Representative of the First
District of Leyte suspended. To the extent that Rule 25 of the
COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for
the office, it should be considered void.

6. POLITICAL, LAW; ELECTIONS; ABSENCE OF PROVISION FOR

PRE-PROCLAMATION CONTESTS BASED ON INELIGIBILITY;
CANNOT BE SUPPLIED BY A MERE RULE OF THE COMELEC.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, 6 of the Constitution, cannot
do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to
vote, which essentially involves an inquiry into qualifications
based on age, residence and citizenship of voters. (Art. IX-C,
2(3))

JOEL
JIMENEZ, Plaintiff-Appellee,
v.
CAIZARES, Defendant.
Republic
Philippines, Intervenor-Appellant.

7.
ID.;
ID.;
DISQUALIFICATION
PROCEEDINGS
DIFFERENTIATED FROM DECLARATION OF INELIGIBILITY.
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on
grounds specified in Sections 12 and 68 of the Omnibus
Election Code and in 40 of the Local Government Code and are
for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In
a word, their purpose is to eliminate a candidate from the race
either from the start or during its progress. "Ineligibility," on
the other hand, refers to the lack of the qualifications
prescribed in the Constitution or the statutes for holding public
office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
8. ID.; ID.; POSSESSION OF QUALIFICATIONS FOR PUBLIC
OFFICE DOES NOT IMPLY THAT CANDIDATE IS NOT
DISQUALIFIED. That an individual possesses the
qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a
candidate for a public office and vice versa. We have this sort of
dichotomy in our Naturalization Law. (C.A. No. 473) That an
alien has the qualifications prescribed in 2 of the law does not
imply that he does not suffer from any of disqualifications
provided
in
4.
9. ID.; ID.; DISQUALIFICATION PROCEEDINGS BASED ON
INELIGIBILITY; ELECTION PROTEST OR ACTION FOR QUO
WARRANTO, PROPER REMEDY. To summarize, the declaration
of ineligibility of a candidate may only be sought in an election
protest or action for quo warranto filed pursuant to 253 of the
Omnibus Election Code within 10 days after his proclamation.
With respect to elective local officials (e. g., Governor, Vice
Governor, members of the Sangguniang Panlalawigan, etc.)
such petition must be filed either with the COMELEC, the
Regional Trial Courts, or Municipal Trial Courts, as provided in
Art. IX-C, 2(2) of the Constitution. In the case of the President
and Vice President, the petition must be filed with the
Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and
in the case of the Senators, with the Senate Electoral Tribunal,
and in the case of Congressmen, with the House of
Representatives Electoral Tribunal. (Art. VI, 17) There is
greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the
case of candidates for President, Vice President, Senators and
members of the House of Representatives, because of the same
policy prohibiting the filing of pre-proclamation cases against
such
candidates.
10. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI;
COMELEC
WITHOUT
JURISDICTION
TO
ASSUME
DISQUALIFICATION OF CANDIDATE BASED ON INELIGIBILITY.
For these reasons, I am of the opinion that the COMELEC had
no jurisdiction over SPA No. 95-009; that its proceedings in
that case, including its questioned orders, are void; and that
the eligibility of petitioner Imelda Romualdez-Marcos for the
office of Representative of the First District of Leyte may only
be inquired into by the HRET. Accordingly, I vote to grant the
petition and to annul the proceedings of the Commission on
Elections in SPA No. 95-009, including its questioned orders
dated April 24, 1995, May 7, 1995, May 11, 1995 and May 25,

EN BANC [G.R. No. L-12790. August 31, 1960.]

REMEDIOS
of
the

SYLLABUS
1. MARRIAGE; ITS NATURE AND SANCTITY; SECURITY AND
STABILITY OF STATE. Marriage in this country is an
institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its
purity, continuity and permanence. The security and
stability of the state are largely dependent upon it. It is in
the interest and duty of each and every member of the
community to prevent the bringing about of a condition that
would shake its foundation and ultimately lead to its
destruction. The incidents of the status are governed by
law, not by will of the parties.
2. ID.; ANNULMENT; IMPOTENCY; LONE TESTIMONY OF
HUSBAND; CASE AT BAR. The law specifically
enumerates the legal grounds that must be proved to exist
by indubitable evidence, to annul a marriage. In the case at
bar, the annulment of the marriage in question was decreed
upon the sole testimony of the husband who was expected
to give testimony tending or aiming at securing the
annulment of his marriage he sought and seeks. Whether
the wife is really impotent cannot be deemed to have been
satisfactorily established because from the commencement
of the proceedings until the entry of the decree she had
abstained from taking part therein.
3. ID.; WOMANS REFUSAL FOR PHYSICAL EXAMINATION;
NOT SUPPRESSION OF EVIDENCE. Although the wifes
refusal to be examined or failure to appear in court show
indifference on her part, yet from such attitude the
presumption arising out of the suppression of evidence
could not arise or be inferred, because woman of this
country are by nature coy, bashful and shy and would not
submit to a physical examination unless compelled to by
competent authority. This the court may do without doing
violence to and infringing upon her constitutional right. A
physical examination in this case is not self-incrimination.
She is not charged with any offense. She is not being
compelled to be a witness against herself. Impotency being
an abnormal condition should not be presumed.
4. ID.; ANNULMENT; PRESUMPTION OF POTENCY;
HUSBANDS LONE TESTIMONY INSUFFICIENT. The
presumption is in favor of potency. The lone testimony of
the husband that his wife is physically incapable of sexual
intercourse is insufficient to tear asunder the ties that have
bound them together as husband and wife.

EN BANC [G.R. No. 7487. December 29, 1913. ]

CONSTANZA YAEZ DE BARNUEVO, PlaintiffAppellant, v. GABRIEL FUSTER, Defendant-Appellant.
SYLLABUS
1. DIVORCE; JURISDICTION OF COURTS WHERE PARTIES
LITIGANT ARE SPANISH SUBJECTS, RESIDING IN THE
PHILIPPINES AND MARRIED UNDER THE ECCLESIASTICAL
LAW. The Courts of First Instance of the Philippine
Islands have jurisdiction to try actions for divorce
(separation) when the parties litigant, one or both, are
citizens or residents, even though they are Spanish subjects
and were married in accordance with the ecclesiastical
forms and ceremonies. (Benedicto v. De la Rama, 3 Phil.
Rep., 34; Ibaez v. Ortiz, 5 Phil. Rep., 325.)
2. APPEAL; CONSIDERATION OF FINDINGS OF FACTS
WHEN THE EVIDENCE DOES NOT ACCOMPANY THE
RECORD. When the evidence is not made a part of the

record, the Supreme Court will accept as true the facts

admitted by the pleadings and found by the lower court in
its decision, even though a motion was made for a new trial
in the lower court.
3. DIVORCE; ADULTERY; PUBLIC SCANDAL. When
adultery is made the cause or ground for a divorce, it is not
necessary to show that the adultery had been accompanied
by public scandal and contempt for the wife.
4. EVIDENCE; FOREIGN LAWS Foreign laws cannot be
proven by the affidavit of a person not versed in the law,
especially by ex parte affidavit which was not presented or
received in evidence. A foreign law may be proved by the
certificate of the officer having in charge the original, under
the seal of the state or country. It may also be proved by an
official copy of the same, published under the authority of
the particular state and purporting to contain such law.

(Secs. 300 and 301 Act No. 190.)

5. HUSBAND AND WIFE; CONJUGAL PROPERTY. All of the
property belonging to a husband and wife shall be
considered as conjugal property, until it is proven that it
belongs exclusively to the husband or to the wife. (Art.
1407, Civil Code.)
6. ID.; SEPARATION; ALIMONY. A husband and wife
entered into a contract to live separately. The husband
agreed to pay to the wife a certain amount for her support
(as alimony). In an action for divorce the wife can not
recover the arrears of payment, even though the payments
had been stipulated in the contract. Such an action must be
maintained by the person who actually furnished the
support.