G.R. No.

142840

May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the
constitutional requirement that "no person shall be a Member of the House of Representative
unless he is a natural-born citizen."1
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente,
Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935
Constitution.2
On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps
and without the consent of the Republic of the Philippines, took an oath of allegiance to the
United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act
No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering
service to or accepting commission in the armed forces of a foreign country." Said provision of
law reads:
SECTION 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any
of the following ways and/or events:
xxx
(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such commission
in, the armed forces of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with
said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with the consent
of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time
of rendering said service, or acceptance of said commission, and taking the oath of
allegiance incident thereto, states that he does so only in connection with his service to
said foreign country; And provided, finally, That any Filipino citizen who is rendering service
to, or is commissioned in, the armed forces of a foreign country under any of the
circumstances mentioned in paragraph (a) or (b), shall not be Republic of the Philippines
1 | Constitutional Law II

during the period of his service to, or commission in, the armed forces of said country.
Upon his discharge from the service of the said foreign country, he shall be automatically
entitled to the full enjoyment of his civil and politically entitled to the full enjoyment of his
civil political rights as a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine
Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation
under Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second
District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671
votes over petitioner Antonio Bengson III, who was then running for reelection.1wphi1.nt
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of
Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to
become a member of the House of Representatives since he is not a natural-born citizen as
required under Article VI, section 6 of the Constitution.4
On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and
declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May
1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision
in its resolution dated April 27, 2000.6
Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the
following grounds:
1. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of
the Philippines despite the fact that he had ceased being such in view of the loss and
renunciation of such citizenship on his part.
2. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it considered private respondent as a citizen of the
Philippines despite the fact he did not validly acquire his Philippine citizenship.
3. Assuming that private respondent's acquisition of Philippine citizenship was invalid,
the HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it dismissed the petition despite the fact that such
reacquisition could not legally and constitutionally restore his natural-born status.7
The issue now before us is whether respondent Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-born Filipino upon his reacquisition of
Philippine citizenship.

Petitioner asserts that respondent Cruz may no longer be

considered a natural-born Filipino since he lost h is Philippine
citizenship when he swore allegiance to the United States in
1995, and had to reacquire the same by repatriation. He insists
that Article citizens are those who are from birth with out
having to perform any act to acquire or perfect such
citizenship.
Respondent on the other hand contends that he reacquired his
status as natural-born citizen when he was repatriated since
the phrase "from birth" in Article IV, Section 2 refers to the
innate, inherent and inborn characteristic of being a naturalborn citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as
follow:
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of
the Philippines;
(3) Those born before January 17, 1973 of Filipino
mother, who elect Philippine citizenship upon
reaching the age of majority, and
(4) Those who are naturalized in accordance with
law.8
There are two ways of acquiring citizenship: (1) by birth, and
(2) by naturalization. These ways of acquiring citizenship
correspond to the two kinds of citizens: the natural-born
citizen, and the naturalized citizen. A person who at the time of
his birth is a citizen of a particular country, is a natural-born
citizen thereof.9
As defined in the same Constitution, natural-born citizens "are
those citizens of the Philippines from birth without having to
perform any act to acquire or perfect his Philippine
citezenship."10
On the other hand, naturalized citizens are those who have
become Filipino citizens through naturalization, generally
under Commonwealth Act No. 473, otherwise known as the
Revised Naturalization Law, which repealed the former
Naturalization Law (Act No. 2927), and by Republic Act No.
530.11 To be naturalized, an applicant has to prove that he
possesses all the qualifications12 and none of the
disqualification13 provided by law to become a Filipino citizen.
The decision granting Philippine citizenship becomes
executory only after two (2) years from its promulgation when
the court is satisfied that during the intervening period, the
applicant has (1) not left the Philippines; (2) has dedicated
himself to a lawful calling or profession; (3) has not been
convicted of any offense or violation of Government
promulgated rules; or (4) committed any act prejudicial to the
interest of the nation or contrary to any Government
announced policies.14
Filipino citizens who have lost their citizenship may however
reacquire the same in the manner provided by law.
Commonwealth Act. No. (C.A. No. 63), enumerates the three

modes by which Philippine citizenship may be reacquired by a

former citizen: (1) by naturalization, (2) by repatriation, and (3)
by direct act of Congress.15
Naturalization is mode for both acquisition and reacquisition of
Philippine citizenship. As a mode of initially acquiring
Philippine citizenship, naturalization is governed by
Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship
is governed by Commonwealth Act No. 63.16 Under this law, a
former Filipino citizen who wishes to reacquire Philippine
citizenship must possess certain qualifications17 and none of
the disqualification mentioned in Section 4 of C.A. 473.18
Repatriation, on the other hand, may be had under various
statutes by those who lost their citizenship due to: (1)
desertion of the armed forces;19 services in the armed forces of
the allied forces in World War II;20 (3) service in the Armed
Forces of the United States at any other time,21 (4) marriage of
a Filipino woman to an alien;22 and (5) political economic
necessity.23
As distinguished from the lengthy process of naturalization,
repatriation simply consists of the taking of an oath of
allegiance to the Republic of the Philippine and registering said
oath in the Local Civil Registry of the place where the person
concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes [referring
to RA Nos. 965 and 2630], the person desiring to
reacquire Philippine citizenship would not even be
required to file a petition in court, and all that he had
to do was to take an oath of allegiance to the
Republic of the Philippines and to register that fact
with the civil registry in the place of his residence or
where he had last resided in the Philippines. [Italics
in the original.25
Moreover, repatriation results in the recovery of the original
nationality.26 This means that a naturalized Filipino who lost his
citizenship will be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when
he rendered service in the Armed Forces of the United States.
However, he subsequently reacquired Philippine citizenship
under R.A. No. 2630, which provides:
Section 1. Any person who had lost his Philippine
citizenship by rendering service to, or accepting
commission in, the Armed Forces of the United
States, or after separation from the Armed Forces of
the United States, acquired United States
citizenship, may reacquire Philippine citizenship by
taking an oath of allegiance to the Republic of the
Philippines and registering the same with Local Civil
Registry in the place where he resides or last
resided in the Philippines. The said oath of
allegiance shall contain a renunciation of any other
citizenship.

Having thus taken the required oath of allegiance to the

Republic and having registered the same in the Civil Registry
of Magantarem, Pangasinan in accordance with the aforecited
provision, respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status which he
acquired at birth as the son of a Filipino father.27 It bears
stressing that the act of repatriation allows him to recover, or
return to, his original status before he lost his Philippine
citizenship.
Petitioner's contention that respondent Cruz is no longer a
natural-born citizen since he had to perform an act to regain
his citizenship is untenable. As correctly explained by the
HRET in its decision, the term "natural-born citizen" was first
defined in Article III, Section 4 of the 1973 Constitution as
follows:

A final point. The HRET has been empowered by the

Constitution to be the "sole judge" of all contests relating to the
election, returns, and qualifications of the members of the
House.29 The Court's jurisdiction over the HRET is merely to
check "whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the
part of the latter.30 In the absence thereof, there is no occasion
for the Court to exercise its corrective power and annul the
decision of the HRET nor to substitute the Court's judgement
for that of the latter for the simple reason that it is not the office
of a petition for certiorari to inquire into the correctness of the
assailed decision.31 There is no such showing of grave abuse
of discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.

Sec. 4. A natural-born citizen is one who is a citizen

of the Philippines from birth without having to
perform any act to acquire or perfect his Philippine
citizenship.
Two requisites must concur for a person to be considered as
such: (1) a person must be a Filipino citizen birth and (2) he
does not have to perform any act to obtain or perfect his
Philippine citizenship.
Under the 1973 Constitution definition, there were two
categories of Filipino citizens which were not considered
natural-born: (1) those who were naturalized and (2) those
born before January 17, 1973,38 of Filipino mothers who, upon
reaching the age of majority, elected Philippine citizenship.
Those "naturalized citizens" were not considered natural-born
obviously because they were not Filipino at birth and had to
perform an act to acquire Philippine citizenship. Those born of
Filipino mothers before the effectively of the 1973 Constitution
were likewise not considered natural-born because they also
had to perform an act to perfect their Philippines citizenship.
The present Constitution, however, now consider those born of
Filipino mothers before the effectivity of the 1973 Constitution
and who elected Philippine citizenship upon reaching the
majority age as natural-born. After defining who re natural-born
citizens, Section 2 of Article IV adds a sentence: "Those who
elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens."
Consequently, only naturalized Filipinos are considered not
natural-born citizens. It is apparent from the enumeration of
who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born
and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, i.e., did not have to
undergo the process of naturalization to obtain Philippine
citizenship, necessarily is natural-born Filipino. Noteworthy is
the absence in said enumeration of a separate category for
persons who, after losing Philippine citizenship, subsequently
reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on
the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition thereof.
As respondent Cruz was not required by law to go through
naturalization proceeding in order to reacquire his citizenship,
he is perforce a natural-born Filipino. As such, he possessed
all the necessary qualifications to be elected as member of the
House of Representatives.

petition is based on the ground that the respondent

is an American citizen based on the record of the
Bureau of Immigration and misrepresented himself
as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998,
the respondent admitted that he is registered as a
foreigner with the Bureau of Immigration under Alien
Certificate of Registration No. B-31632 and alleged
that he is a Filipino citizen because he was born in
1955 of a Filipino father and a Filipino mother. He
was born in the United States, San Francisco,
California, September 14, 1955, and is considered in
American citizen under US Laws. But
notwithstanding his registration as an American
citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear
that respondent Manzano is born a Filipino and a US
citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws,
he is disqualified from the position for which he filed
his certificate of candidacy. Is he eligible for the
office he seeks to be elected?

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.

Under Section 40(d) of the Local Government Code,

those holding dual citizenship are disqualified from
running for any elective local position.
WHEREFORE, the Commission hereby declares the
respondent Eduardo Barrios Manzano
DISQUALIFIED as candidate for Vice-Mayor of
Makati City.

MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent
Eduardo B. Manzano were candidates for vice mayor of the
City of Makati in the May 11, 1998 elections. The other one
was Gabriel V. Daza III. The results of the election were as
follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275 1
The proclamation of private respondent was suspended in
view of a pending petition for disqualification filed by a certain
Ernesto Mamaril who alleged that private respondent was not
a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of
the COMELEC granted the petition of Mamaril and ordered the
cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under
40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective
position. The COMELEC's Second Division said:
What is presented before the Commission is a
petition for disqualification of Eduardo Barrios
Manzano as candidate for the office of Vice-Mayor
of Makati City in the May 11, 1998 elections. The

On May 8, 1998, private respondent filed a motion for

reconsideration. 3 The motion remained pending even until
after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated
May 10, 1998, of the COMELEC, the board of canvassers
tabulated the votes cast for vice mayor of Makati City but
suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification. 4 Petitioner's motion was opposed by private
respondent.
The motion was not resolved. Instead, on August 31, 1998, the
COMELEC en banc rendered its resolution. Voting 4 to 1, with
one commissioner abstaining, the COMELEC en
banc reversed the ruling of its Second Division and declared
private respondent qualified to run for vice mayor of the City of
Makati in the May 11, 1998 elections. 5The pertinent portions of
the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano
was born in San Francisco, California, U.S.A. He
acquired US citizenship by operation of the United
States Constitution and laws under the principle
ofjus soli.
He was also a natural born Filipino citizen by
operation of the 1935 Philippine Constitution, as his
father and mother were Filipinos at the time of his

birth. At the age of six (6), his parents brought him to

the Philippines using an American passport as travel
document. His parents also registered him as an
alien with the Philippine Bureau of Immigration. He
was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine
citizenship, as he did not renounce Philippine
citizenship and did not take an oath of allegiance to
the United States.
It is an undisputed fact that when respondent
attained the age of majority, he registered himself as
a voter, and voted in the elections of 1992, 1995 and
1998, which effectively renounced his US citizenship
under American law. Under Philippine law, he no
longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the
resolution of the Second Division, adopted on May
7, 1998, was not yet final. Respondent Manzano
obtained the highest number of votes among the
candidates for vice-mayor of Makati City, garnering
one hundred three thousand eight hundred fifty three
(103,853) votes over his closest rival, Ernesto S.
Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of
two thousand nine hundred fifty nine (2,959) votes.
Gabriel Daza III obtained third place with fifty four
thousand two hundred seventy five (54,275) votes.
In applying election laws, it would be far better to err
in favor of the popular choice than be embroiled in
complex legal issues involving private international
law which may well be settled before the highest
court (Cf. Frivaldo vs. Commission on Elections, 257
SCRA 727).
WHEREFORE, the Commission en banc hereby
REVERSES the resolution of the Second Division,
adopted on May 7, 1998, ordering the cancellation of
the respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios
Manzano to be QUALIFIED as a candidate for the
position of vice-mayor of Makati City in the May 11,
1998, elections.
ACCORDINGLY, the Commission directs the Makati
City Board of Canvassers, upon proper notice to the
parties, to reconvene and proclaim the respondent
Eduardo Luis Barrios Manzano as the winning
candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the
board of canvassers, on the evening of August 31, 1998,
proclaimed private respondent as vice mayor of the City of
Makati.
This is a petition for certiorari seeking to set aside the
aforesaid resolution of the COMELEC en banc and to declare
private respondent disqualified to hold the office of vice mayor
of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a
U.S. citizen when he:

1. He renounced his U.S. citizenship when

he attained the age of majority when he
was already 37 years old; and,
2. He renounced his U.S. citizenship when
he (merely) registered himself as a voter
and voted in the elections of 1992, 1995
and 1998.
B. Manzano is qualified to run for and or hold the
elective office of Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the
resolution of the Second Division adopted on 7 May
1998 was not yet final so that, effectively, petitioner
may not be declared the winner even assuming that
Manzano is disqualified to run for and hold the
elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by
private respondent Manzano whether petitioner Mercado
his personality to bring this suit considering that he was not an
original party in the case for disqualification filed by Ernesto
Mamaril nor was petitioner's motion for leave to intervene
granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of
the Rules of Procedure of the COMELEC in support of his
claim that petitioner has no right to intervene and, therefore,
cannot bring this suit to set aside the ruling denying his motion
for intervention:
Sec. 1. When proper and when may be
permitted to intervene. Any person
allowed to initiate an action or proceeding
may, before or during the trial of an action
or proceeding, be permitted by the
Commission, in its discretion to intervene
in such action or proceeding, if he has
legal interest in the matter in litigation, or
in the success of either of the parties, or
an interest against both, or when he is so
situated as to be adversely affected by
such action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. In
allowing or disallowing a motion for
intervention, the Commission or the
Division, in the exercise of its discretion,
shall consider whether or not the
intervention will unduly delay or prejudice
the adjudication of the rights of the original
parties and whether or not the intervenor's
rights may be fully protected in a separate
action or proceeding.

Private respondent argues that petitioner has neither

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

This brings us to the next question, namely, whether private

respondent Manzano possesses dual citizenship and, if so,
whether he is disqualified from being a candidate for vice
mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR
DISQUALIFICATION
The disqualification of private respondent Manzano is being
sought under 40 of the Local Government Code of 1991 (R.A.
No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship."
This provision is incorporated in the Charter of the City of
Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the
Solicitor General, who sides with him in this case, contends
that through 40(d) of the Local Government Code, Congress
has "command[ed] in explicit terms the ineligibility of persons
possessing dual allegiance to hold local elective office."
To begin with, dual citizenship is different from dual allegiance.
The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person
is simultaneously considered a national by the said
states. 9 For instance, such a situation may arise when a
person whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a
citizen of both states. Considering the citizenship clause (Art.
IV) of our Constitution, it is possible for the following classes of
citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in
foreign countries which follow the principle of jus
soli;
(2) Those born in the Philippines of Filipino mothers
and alien fathers if by the laws of their father's'
country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the
latter's country the former are considered citizens,
unless by their act or omission they are deemed to
have renounced Philippine citizenship.
There may be other situations in which a citizen of the
Philippines may, without performing any act, be also a citizen
of another state; but the above cases are clearly possible
given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in
which a person simultaneously owes, by some positive act,
loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual's
volition.
With respect to dual allegiance, Article IV, 5 of the
Constitution provides: "Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law." This
provision was included in the 1987 Constitution at the instance
of Commissioner Blas F. Ople who explained its necessity as
follows: 10

. . . I want to draw attention to the fact that dual

allegiance is not dual citizenship. I have circulated a
memorandum to the Bernas Committee according to
which a dual allegiance and I reiterate a dual
allegiance is larger and more threatening than
that of mere double citizenship which is seldom
intentional and, perhaps, never insidious. That is
often a function of the accident of mixed marriages
or of birth on foreign soil. And so, I do not question
double citizenship at all.
What we would like the Committee to consider is to
take constitutional cognizance of the problem of dual
allegiance. For example, we all know what happens
in the triennial elections of the Federation of FilipinoChinese Chambers of Commerce which consists of
about 600 chapters all over the country. There is a
Peking ticket, as well as a Taipei ticket. Not widely
known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of
the Republic of China in Taiwan. And until recently,
sponsor might recall, in Mainland China in the
People's Republic of China, they have the
Associated Legislative Council for overseas Chinese
wherein all of Southeast Asia including some
European and Latin countries were represented,
which was dissolved after several years because of
diplomatic friction. At that time, the Filipino-Chinese
were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I
speak of this unsettled kind of allegiance of Filipinos,
of citizens who are already Filipinos but who, by
their acts, may be said to be bound by a second
allegiance, either to Peking or Taiwan. I also took
close note of the concern expressed by some
Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of
guarantees of thorough assimilation, and especially
Commissioner Concepcion who has always been
worried about minority claims on our natural
resources.
Dull allegiance can actually siphon scarce national
capital to Taiwan, Singapore, China or Malaysia, and
this is already happening. Some of the great
commercial places in downtown Taipei are Filipinoowned, owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean a tragic
capital outflow when we have to endure a capital
famine which also means economic stagnation,
worsening unemployment and social unrest.
And so, this is exactly what we ask that the
Committee kindly consider incorporating a new
section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL
ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the
problem of these citizens with dual allegiance, thus: 11
. . . A significant number of Commissioners
expressed their concern about dual citizenship in the
sense that it implies a double allegiance under a
double sovereignty which some of us who spoke

then in a freewheeling debate thought would be

repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies a
uniqueness and which elsewhere in the Constitution
is defined in terms of rights and obligations exclusive
to that citizenship including, of course, the obligation
to rise to the defense of the State when it is
threatened, and back of this, Commissioner Bernas,
is, of course, the concern for national security. In the
course of those debates, I think some noted the fact
that as a result of the wave of naturalizations since
the decision to establish diplomatic relations with the
People's Republic of China was made in 1975, a
good number of these naturalized Filipinos still
routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of
allegiance to a foreign government maybe just to
enter into the spirit of the occasion when the
anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine
and deep concern about double citizenship, with its
attendant risk of double allegiance which is
repugnant to our sovereignty and national security. I
appreciate what the Committee said that this could
be left to the determination of a future legislature.
But considering the scale of the problem, the real
impact on the security of this country, arising from,
let us say, potentially great numbers of double
citizens professing double allegiance, will the
Committee entertain a proposed amendment at the
proper time that will prohibit, in effect, or regulate
double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern
of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their
naturalization. Hence, the phrase "dual citizenship" in R.A. No.
7160, 40(d) and in R.A. No. 7854, 20 must be understood
as referring to "dual allegiance." Consequently, persons with
mere dual citizenship do not fall under this disqualification.
Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of their
status, for candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different
states. As Joaquin G. Bernas, one of the most perceptive
members of the Constitutional Commission, pointed out:
"[D]ual citizenship is just a reality imposed on us because we
have no control of the laws on citizenship of other countries.
We recognize a child of a Filipino mother. But whether she is
considered a citizen of another country is something
completely beyond our control." 12
By electing Philippine citizenship, such candidates at the same
time forswear allegiance to the other country of which they are
also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign
state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and
Pimentel clearly shows: 13
SENATOR ENRILE. Mr. President, I would like to
ask clarification of line 41, page 17: "Any person
with dual citizenship" is disqualified to run for any

elective local position. Under the present

Constitution, Mr. President, someone whose mother
is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic.
There is no requirement that such a natural born
citizen, upon reaching the age of majority, must elect
or give up Philippine citizenship.
On the assumption that this person would carry two
passports, one belonging to the country of his or her
father and one belonging to the Republic of the
Philippines, may such a situation disqualify the
person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it
only means that at the moment when he would want
to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a
Philippine passport but the country of origin or the
country of the father claims that person,
nevertheless, as a citizen? No one can renounce.
There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is
running for public office would, in effect, be an
election for him of his desire to be considered as a
Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President,
the Constitution does not require an election. Under
the Constitution, a person whose mother is a citizen
of the Philippines is, at birth, a citizen without any
overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying,
Mr. President, is: Under the Gentleman's example, if
he does not renounce his other citizenship, then he
is opening himself to question. So, if he is really
interested to run, the first thing he should do is to
say in the Certificate of Candidacy that: "I am a
Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the
viewpoint of Philippine law, Mr. President. He will
always have one citizenship, and that is the
citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President.
But if he exercises acts that will prove that he also
acknowledges other citizenships, then he will
probably fall under this disqualification.
This is similar to the requirement that an applicant for
naturalization must renounce "all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty" 14 of which at
the time he is a subject or citizen before he can be issued a
certificate of naturalization as a citizen of the Philippines.
In Parado v. Republic, 15 it was held:
[W]hen a person applying for citizenship by
naturalization takes an oath that he renounce, his
loyalty to any other country or government and

solemnly declares that he owes his allegiance to the

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

10. I AM A REGISTERED VOTER OF PRECINCT

NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF
NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR
IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO
BE ELECTED. I WILL SUPPORT AND DEFEND
THE CONSTITUTION OF THE PHILIPPINES AND
WILL MAINTAIN TRUE FAITH AND ALLEGIANCE
THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY
THE DULY CONSTITUTED AUTHORITIES OF THE
REPUBLIC OF THE PHILIPPINES; AND THAT I
IMPOSE THIS OBLIGATION UPON MYSELF
VOLUNTARILY, WITHOUT MENTAL
RESERVATION OR PURPOSE OF EVASION. I
HEREBY CERTIFY THAT THE FACTS STATED
HEREIN ARE TRUE AND CORRECT OF MY OWN
PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce
his American citizenship, effectively removing any
disqualification he might have as a dual citizen. Thus,
in Frivaldo v. COMELEC it was held: 17
It is not disputed that on January 20, 1983 Frivaldo
became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship,
which under Sec. 40 of the Local Government Code
would disqualify him "from running for any elective
local position?" We answer this question in the
negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took
said oath of allegiance and even before that, when
he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had
long abandoned his American citizenship long
before May 8, 1995. At best, Frivaldo was stateless
in the interim when he abandoned and renounced
his US citizenship but before he was repatriated to
his Filipino citizenship."
On this point, we quote from the assailed Resolution
dated December 19, 1995:
By the laws of the United States, petitioner
Frivaldo lost his American citizenship
when he took his oath of allegiance to the
Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an
oath of allegiance to the Philippine
Government.
These factual findings that Frivaldo has lost his
foreign nationality long before the elections of 1995
have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent
any showing of capriciousness or arbitrariness or
abuse.

There is, therefore, no merit in petitioner's contention that the

oath of allegiance contained in private respondent's certificate
of candidacy is insufficient to constitute renunciation that, to be
effective, such renunciation should have been made upon
private respondent reaching the age of majority since no law
requires the election of Philippine citizenship to be made upon
majority age.
Finally, much is made of the fact that private respondent
admitted that he is registered as an American citizen in the
Bureau of Immigration and Deportation and that he holds an
American passport which he used in his last travel to the
United States on April 22, 1997. There is no merit in this. Until
the filing of his certificate of candidacy on March 21, 1998, he
had dual citizenship. The acts attributed to him can be
considered simply as the assertion of his American nationality
before the termination of his American citizenship. What this
Court said in Aznar v.COMELEC 18 applies mutatis mundatis to
private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea
was both a Filipino and an American, the mere fact
that he has a Certificate staring he is an American
does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean
that he is not still a Filipino, possessed as he is, of
both nationalities or citizenships. Indeed, there is no
express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of
said citizenship. When We consider that the
renunciation needed to lose Philippine citizenship
must be "express," it stands to reason that there can
be no such loss of Philippine citizenship when there
is no renunciation, either "express" or "implied."
To recapitulate, by declaring in his certificate of candidacy that
he is a Filipino citizen; that he is not a permanent resident or
immigrant of another country; that he will defend and support
the Constitution of the Philippines and bear true faith and
allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American
citizenship and anything which he may have said before as a
dual citizen.
On the other hand, private respondent's oath of allegiance to
the Philippines, when considered with the fact that he has
spent his youth and adulthood, received his education,
practiced his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his election of
Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill
his undertaking made under oath. Should he betray that trust,
there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, 19 we sustained the
denial of entry into the country of petitioner on the ground that,
after taking his oath as a naturalized citizen, he applied for the
renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against
any one who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack

of merit.

UNITED STATES OF AMERICA of which I am a citizen, and I

divest myself of full employment of all civil and political rights
and privileges of the United States of America.

SO ORDERED.
I solemnly swear that all the foregoing statement is true and
correct to the best of my knowledge and belief.7
On 30 November 2009, Arnado filed his Certificate of
Candidacy for Mayor of Kauswagan, Lanao del Norte, which
contains, among others, the following statements:
G.R. No. 195649

April 16, 2013

I am a natural born Filipino citizen / naturalized Filipino citizen.

CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y
CAGOCO, LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction
with Rule 65 of the Rules of Court to review the Resolutions of
the Commission on Elections (COMELEC). The Resolution1 in
SPA No. 10-1 09(DC) of the COMELEC First Division dated 5
October 201 0 is being assailed for applying Section 44 of the
Local Government Code while the Resolution2 of the
COMELEC En Banc dated 2 February 2011 is being
questioned for finding that respondent Rommel Arnado y
Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen
qualified to run for public office despite his continued use of a
U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino
citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he
lost his Filipino citizenship. Arnado applied for repatriation
under Republic Act (R.A.) No. 9225 before the Consulate
General of the Philippines in San Franciso, USA and took the
Oath of Allegiance to the Republic of the Philippines on 10 July
2008.4 On the same day an Order of Approval of his
Citizenship Retention and Re-acquisition was issued in his
favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support
and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines and I hereby declare
that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto;
and that I impose this obligation upon myself voluntarily
without mental reservation or purpose of evasion.6

I am not a permanent resident of, or immigrant to, a foreign

country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the
Philippines and will maintain true faith and allegiance thereto. I
will obey the laws, legal orders and decrees promulgated by
the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another
mayoralty candidate, filed a petition to disqualify Arnado and/or
to cancel his certificate of candidacy for municipal mayor of
Kauswagan, Lanao del Norte in connection with the 10 May
2010 local and national elections.9
Respondent Balua contended that Arnado is not a resident of
Kauswagan, Lanao del Norte and that he is a foreigner,
attaching thereto a certification issued by the Bureau of
Immigration dated 23 April 2010 indicating the nationality of
Arnado as "USA-American."10To further bolster his claim of
Arnados US citizenship, Balua presented in his Memorandum
a computer-generated travel record11 dated 03 December 2009
indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said
record shows that Arnado left the country on 14 April 2009 and
returned on 25 June 2009, and again departed on 29 July
2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of
Immigration dated 23 April 2010, certifying that the name
"Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April
2010, with the following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010

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

the Republic and executed an Affidavit of Renunciation of his
foreign citizenship, which states:

NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely

and perpetually renounce all allegiance and fidelity to the

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

Order13 requiring the respondent to personally file his answer
and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to
declare him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the
2010 elections where Arnado garnered the highest number of
votes and was subsequently proclaimed as the winning
candidate for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified
answer, submitting the following documents as evidence:14

xxxx
Arnados continued use of his US passport is a strong
indication that Arnado had no real intention to renounce his US
citizenship and that he only executed an Affidavit of
Renunciation to enable him to run for office. We cannot turn a
blind eye to the glaring inconsistency between Arnados
unexplained use of a US passport six times and his claim that
he re-acquired his Philippine citizenship and renounced his US
citizenship. As noted by the Supreme Court in the Yu case, "a
passport is defined as an official document of identity and
nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US
citizenship would not continue to avail of privileges reserved
solely for US nationals.19

1. Affidavit of Renunciation and Oath of Allegiance to

the Republic of the Philippines dated 03 April 2009;

The dispositive portion of the Resolution rendered by the

COMELEC

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil

Seno, Virginia Branzuela, Leoncio Daligdig, and
Jessy Corpin, all neighbors of Arnado, attesting that
Arnado is a long-time resident of Kauswagan and
that he has been conspicuously and continuously
residing in his familys ancestral house in
Kauswagan;

First Division reads:

3. Certification from the Punong Barangay of

Poblacion, Kauswagan, Lanao del Norte dated 03
June 2010 stating that Arnado is a bona fide resident
of his barangay and that Arnado went to the United
States in 1985 to work and returned to the
Philippines in 2009;
4. Certification dated 31 May 2010 from the
Municipal Local Government Operations Office of
Kauswagan stating that Dr. Maximo P. Arnado, Sr.
served as Mayor of Kauswagan, from January 1964
to June 1974 and from 15 February 1979 to 15 April
1986; and
5. Voter Certification issued by the Election Officer of
Kauswagan certifying that Arnado has been a
registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation
of a certificate of candidacy based on misrepresentation,15 the
COMELEC First Division considered it as one for
disqualification. Baluas contention that Arnado is a resident of
the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his
contention,"16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency
requirement under the Local Government Code."17
In the matter of the issue of citizenship, however, the First
Division disagreed with Arnados claim that he is a Filipino
citizen.18
We find that although Arnado appears to have substantially
complied with the requirements of R.A. No. 9225, Arnados act
of consistently using his US passport after renouncing his US
citizenship on 03 April 2009 effectively negated his Affidavit of
Renunciation.

WHEREFORE, in view of the foregoing, the petition for

disqualification and/or to cancel the certificate of candidacy of
Rommel C. Arnado is hereby GRANTED. Rommel C. Arnados
proclamation as the winning candidate for Municipal Mayor of
Kauswagan, Lanao del Nore is hereby ANNULLED. Let the
order of succession under Section 44 of the Local Government
Code of 1991 take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the
COMELEC En Banc on the ground that "the evidence is
insufficient to justify the Resolution and that the said
Resolution is contrary to law."21 He raised the following
contentions:22
1. The finding that he is not a Filipino citizen is not
supported by the evidence consisting of his Oath of
Allegiance and the Affidavit of Renunciation, which
show that he has substantially complied with the
requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his
renunciation of his American citizenship is not
tantamount to a repudiation of his Filipino
citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;
3. He used his US passport only because he was
not informed of the issuance of his Philippine
passport, and that he used his Philippine passport
after he obtained it;
4. Baluas petition to cancel the certificate of
candidacy of Arnado was filed out of time, and the
First Divisions treatment of the petition as one for
disqualification constitutes grave abuse of discretion
amounting to excess of jurisdiction;23
5. He is undoubtedly the peoples choice as
indicated by his winning the elections;

6. His proclamation as the winning candidate ousted

the COMELEC from jurisdiction over the case; and
7. The proper remedy to question his citizenship is
through a petition for quo warranto, which should
have been filed within ten days from his
proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another
candidate for mayor of Kauswagan, and who garnered the
second highest number of votes in the 2010 elections,
intervened in the case and filed before the COMELEC En
Banc a Motion for Reconsideration together with an Opposition
to Arnados Amended Motion for Reconsideration. Maquiling
argued that while the First Division correctly disqualified
Arnado, the order of succession under Section 44 of the Local
Government Code is not applicable in this case. Consequently,
he claimed that the cancellation of Arnados candidacy and the
nullification of his proclamation, Maquiling, as the legitimate
candidate who obtained the highest number of lawful votes,
should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his
Motion for Intervention and his Motion for Reconsideration.
Arnado opposed all motions filed by Maquiling, claiming that
intervention is prohibited after a decision has already been
rendered, and that as a second-placer, Maquiling undoubtedly
lost the elections and thus does not stand to be prejudiced or
benefitted by the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc
held that under Section 6 of Republic Act No. 6646, the
Commission "shall continue with the trial and hearing of the
action, inquiry or protest even after the proclamation of the
candidate whose qualifications for office is questioned."
As to Maquilings intervention, the COMELEC En Banc also
cited Section 6 of R.A. No. 6646 which allows intervention in
proceedings for disqualification even after elections if no final
judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by
the outcome of the case as it agrees with the dispositive
portion of the Resolution of the First Division allowing the order
of succession under Section 44 of the Local Government Code
to take effect.
The COMELEC En Banc agreed with the treatment by the First
Division of the petition as one for disqualification, and ruled
that the petition was filed well within the period prescribed by
law,24 having been filed on 28 April 2010, which is not later
than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the
ruling of the First Division and granted Arnados Motion for
Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No.
9225, the respondent embraced his Philippine citizenship as
though he never became a citizen of another country. It was at
that time, April 3, 2009, that the respondent became a pure
Philippine Citizen again.

xxxx
The use of a US passport does not operate to revert back
his status as a dual citizen prior to his renunciation as there is
no law saying such. More succinctly, the use of a US passport
does not operate to "un-renounce" what he has earlier on
renounced. The First Divisions reliance in the case of In Re:
Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago,
et al. is misplaced. The petitioner in the said case is a
naturalized citizen who, after taking his oath as a naturalized
Filipino, applied for the renewal of his Portuguese passport.
Strict policy is maintained in the conduct of citizens who are
not natural born, who acquire their citizenship by choice, thus
discarding their original citizenship. The Philippine State
expects strict conduct of allegiance to those who choose to be
its citizens. In the present case, respondent is not a
naturalized citizen but a natural born citizen who chose
greener pastures by working abroad and then decided to
repatriate to supposedly help in the progress of Kauswagan.
He did not apply for a US passport after his renunciation. Thus
the mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the
use of his US passport. Although he applied for a Philippine
passport, the passport was only issued on June 18, 2009.
However, he was not notified of the issuance of his Philippine
passport so that he was actually able to get it about three (3)
months later. Yet as soon as he was in possession of his
Philippine passport, the respondent already used the same in
his subsequent travels abroad. This fact is proven by the
respondents submission of a certified true copy of his
passport showing that he used the same for his travels on the
following dates: January 31, 2010, April 16, 2010, May 20,
2010, January 12, 2010, March 31, 2010 and June 4, 2010.
This then shows that the use of the US passport was because
to his knowledge, his Philippine passport was not yet issued to
him for his use. As probably pressing needs might be
undertaken, the respondent used whatever is within his control
during that time.25
In his Separate Concurring Opinion, COMELEC Chairman
Sixto Brillantes cited that the use of foreign passport is not one
of the grounds provided for under Section 1 of Commonwealth
Act No. 63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity
of citizenship is more appropriate in this case. Under said
principle, once a person becomes a citizen, either by birth or
naturalization, it is assumed that he desires to continue to be a
citizen, and this assumption stands until he voluntarily
denationalizes or expatriates himself. Thus, in the instant case
respondent after reacquiring his Philippine citizenship should
be presumed to have remained a Filipino despite his use of his
American passport in the absence of clear, unequivocal and
competent proof of expatriation. Accordingly, all doubts should
be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento
dissented, thus:
Respondent evidently failed to prove that he truly and
wholeheartedly abandoned his allegiance to the United States.
The latters continued use of his US passport and enjoyment
of all the privileges of a US citizen despite his previous

renunciation of the afore-mentioned citizenship runs contrary

to his declaration that he chose to retain only his Philippine
citizenship. Respondents submission with the twin
requirements was obviously only for the purpose of complying
with the requirements for running for the mayoralty post in
connection with the May 10, 2010 Automated National and
Local Elections.

The second question is whether or not the use of a foreign

passport after renouncing foreign citizenship amounts to
undoing a renunciation earlier made.

Qualifications for elective office, such as citizenship, are

continuing requirements; once any of them is lost during his
incumbency, title to the office itself is deemed forfeited. If a
candidate is not a citizen at the time he ran for office or if he
lost his citizenship after his election to office, he is disqualified
to serve as such. Neither does the fact that respondent
obtained the plurality of votes for the mayoralty post cure the
latters failure to comply with the qualification requirements
regarding his citizenship.

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

the Local Government Code is applicable to this case.

Since a disqualified candidate is no candidate at all in the eyes

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

Petitioner Casan Macode Maquiling intervened at the stage

when respondent Arnado filed a Motion for Reconsideration of
the First Division Resolution before the COMELEC En Banc.
As the candidate who garnered the second highest number of
votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in
the event the latter is disqualified, the votes cast for him should
be considered stray and the second-placer should be
proclaimed as the winner in the elections.

THE PETITION BEFORE THE COURT

The effect of a disqualification case is enunciated in Section 6

of R.A. No. 6646:

Maquiling filed the instant petition questioning the propriety of

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

A better framing of the question though should be whether or

not the use of a foreign passport after renouncing foreign
citizenship affects ones qualifications to run for public office.

OUR RULING
Intervention of a rival candidate in a disqualification case
is proper when there has not yet been any proclamation
of the winner.

It must be emphasized that while the original petition before

the COMELEC is one for cancellation of the certificate of
candidacy and / or disqualification, the COMELEC First
Division and the COMELEC En Banc correctly treated the
petition as one for disqualification.

Sec. 6. Effect of Disqualification Case. - Any candidate who

has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing
of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In
that case, the Court said:
That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent
is clear from Section 6 of R.A. No. 6646, otherwise known as
the Electoral Reforms Law of 1987, which provides: Any
candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the

pendency thereof order the suspension of the proclamation of

such candidate whenever the evidence of guilt is strong. Under
this provision, intervention may be allowed in proceedings for
disqualification even after election if there has yet been no final
judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case.
The fact that the COMELEC En Banc has already ruled that
Maquiling has not shown that the requisites for the exemption
to the second-placer rule set forth in Sinsuat v.
COMELEC30 are present and therefore would not be
prejudiced by the outcome of the case, does not deprive
Maquiling of the right to elevate the matter before this Court.
Arnados claim that the main case has attained finality as the
original petitioner and respondents therein have not appealed
the decision of the COMELEC En Banc, cannot be sustained.
The elevation of the case by the intervenor prevents it from
attaining finality. It is only after this Court has ruled upon the
issues raised in this instant petition that the disqualification
case originally filed by Balua against Arnado will attain finality.
The use of foreign passport after renouncing ones
foreign citizenship is a positive and voluntary act of
representation as to ones nationality and citizenship; it
does not divest Filipino citizenship regained by
repatriation but it recants the Oath of Renunciation
required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition
Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this
Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet
the qualification for holding such public office as required by
the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign before any public officer
authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run
for a public office. He took the Oath of Allegiance and
renounced his foreign citizenship. There is no question that
after performing these twin requirements required under
Section 5(2) of R.A. No. 9225 or the Citizenship Retention and
Re-acquisition Act of 2003, he became eligible to run for public
office.
Indeed, Arnado took the Oath of Allegiance not just only once
but twice: first, on 10 July 2008 when he applied for
repatriation before the Consulate General of the Philippines in
San Francisco, USA, and again on 03 April 2009 simultaneous
with the execution of his Affidavit of Renunciation. By taking
the Oath of Allegiance to the Republic, Arnado re-acquired his
Philippine citizenship. At the time, however, he likewise
possessed American citizenship. Arnado had therefore
become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced

his American citizenship by executing an Affidavit of
Renunciation, thus completing the requirements for eligibility to
run for public office.
By renouncing his foreign citizenship, he was deemed to be
solely a Filipino citizen, regardless of the effect of such
renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently
and is open to attack when, after renouncing the foreign
citizenship, the citizen performs positive acts showing his
continued possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack
when, after renouncing his foreign citizenship, he continued to
use his US passport to travel in and out of the country before
filing his certificate of candidacy on 30 November 2009. The
pivotal question to determine is whether he was solely and
exclusively a Filipino citizen at the time he filed his certificate
of candidacy, thereby rendering him eligible to run for public
office.
Between 03 April 2009, the date he renounced his foreign
citizenship, and 30 November 2009, the date he filed his COC,
he used his US passport four times, actions that run counter to
the affidavit of renunciation he had earlier executed. By using
his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before
immigration authorities of both countries that he is an
American citizen, with all attendant rights and privileges
granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that
can simply be professed at any time, only to be violated the
next day. It requires an absolute and perpetual renunciation of
the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the
citizenship.
Mercado v. Manzano34 already hinted at this situation when the
Court declared:
His declarations will be taken upon the faith that he will fulfill
his undertaking made under oath. Should he betray that trust,
there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, we sustained the
denial of entry into the country of petitioner on the ground that,
after taking his oath as a naturalized citizen, he applied for the
renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against
anyone who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting
renunciation and loss of Philippine citizenship,35 it is
nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also a
citizen of another country to be qualified to run for a local
elective position.

When Arnado used his US passport on 14 April 2009, or just

eleven days after he renounced his American citizenship, he
recanted his Oath of Renunciation36 that he "absolutely and
perpetually renounce(s) all allegiance and fidelity to the
UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and
privileges of the United States of America."38
We agree with the COMELEC En Banc that such act of using
a foreign passport does not divest Arnado of his Filipino
citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado voluntarily
and effectively reverted to his earlier status as a dual citizen.
Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using
his US passport.
This act of using a foreign passport after renouncing ones
foreign citizenship is fatal to Arnados bid for public office, as it
effectively imposed on him a disqualification to run for an
elective local position.
Arnados category of dual citizenship is that by which foreign
citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual
citizens by virtue of birth, who are not required by law to take
the oath of renunciation as the mere filing of the certificate of
candidacy already carries with it an implied renunciation of
foreign citizenship.39 Dual citizens by naturalization, on the
other hand, are required to take not only the Oath of Allegiance
to the Republic of the Philippines but also to personally
renounce foreign citizenship in order to qualify as a candidate
for public office.
By the time he filed his certificate of candidacy on 30
November 2009, Arnado was a dual citizen enjoying the rights
and privileges of Filipino and American citizenship. He was
qualified to vote, but by the express disqualification under
Section 40(d) of the Local Government Code,40 he was not
qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen
only for a period of eleven days, or from 3 April 2009 until 14
April 2009, on which date he first used his American passport
after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and
must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire
tenure. Once any of the required qualifications is lost, his title
may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a
continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act
which violates the oath of renunciation opens the citizenship
issue to attack.
We agree with the pronouncement of the COMELEC First
Division that "Arnados act of consistently using his US
passport effectively negated his "Affidavit of
Renunciation."42 This does not mean, that he failed to comply
with the twin requirements under R.A. No. 9225, for he in fact
did.

It was after complying with the requirements that he performed

positive acts which effectively disqualified him from running for
an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.
The purpose of the Local Government Code in disqualifying
dual citizens from running for any elective public office would
be thwarted if we were to allow a person who has earlier
renounced his foreign citizenship, but who subsequently
represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with the
explanation that he was not notified of the issuance of his
Philippine passport on 18 June 2009, as a result of which he
was only able to obtain his Philippine passport three (3)
months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu,
the Portuguese national who sought naturalization as a Filipino
citizen and later applied for the renewal of his Portuguese
passport. That Arnado did not apply for a US passport after his
renunciation does not make his use of a US passport less of
an act that violated the Oath of Renunciation he took. It was
still a positive act of representation as a US citizen before the
immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as
soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels
abroad."44 We cannot agree with the COMELEC. Three
months from June is September. If indeed, Arnado used his
Philippine passport as soon as he was in possession of it, he
would not have used his US passport on 24 November 2009.
Besides, Arnados subsequent use of his Philippine passport
does not correct the fact that after he renounced his foreign
citizenship and prior to filing his certificate of candidacy, he
used his US passport. In the same way that the use of his
foreign passport does not undo his Oath of Renunciation, his
subsequent use of his Philippine passport does not undo his
earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of
identity that comes with attendant civil and political rights
accorded by the state to its citizens. It likewise demands the
concomitant duty to maintain allegiance to ones flag and
country. While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or
appointment to public office are required to renounce their
foreign citizenship to be deserving of the public trust. Holding
public office demands full and undivided allegiance to the
Republic and to no other.
We therefore hold that Arnado, by using his US passport after
renouncing his American citizenship, has recanted the same
Oath of Renunciation he took. Section 40(d) of the Local
Government Code applies to his situation. He is disqualified
not only from holding the public office but even from becoming
a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v.
Paredes45 which is the jurisprudential spring of the principle
that a second-placer cannot be proclaimed as the winner in an

election contest. This doctrine must be re-examined and its

soundness once again put to the test to address the everrecurring issue that a second-placer who loses to an ineligible
candidate cannot be proclaimed as the winner in the elections.

Note that the sentence where the phrase is found starts with
"In the other case, there is not, strictly speaking, a contest" in
contrast to the earlier statement, "In the former, we have a
contest in the strict sense of the word, because of the
opposing parties are striving for supremacy."

The Facts of the case are as follows:

On June 4, 1912, a general election was held in the town of
Imus, Province of Cavite, to fill the office of municipal
president. The petitioner, Felipe Topacio, and the respondent,
Maximo Abad, were opposing candidates for that office.
Topacio received 430 votes, and Abad 281. Abad contested
the election upon the sole ground that Topacio was ineligible in
that he was reelected the second time to the office of the
municipal president on June 4, 1912, without the four years
required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis
of a statutory prohibition for seeking a second re-election
absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the
wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast
ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter
dictum. The Court was comparing "the effect of a decision that
a candidate is not entitled to the office because of fraud or
irregularities in the elections x x x with that produced by
declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a
comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to
the office because of fraud or irregularities in the elections is
quite different from that produced by declaring a person
ineligible to hold such an office. In the former case the court,
after an examination of the ballots may find that some other
person than the candidate declared to have received a plurality
by the board of canvassers actually received the greater
number of votes, in which case the court issues its mandamus
to the board of canvassers to correct the returns accordingly;
or it may find that the manner of holding the election and the
returns are so tainted with fraud or illegality that it cannot be
determined who received a plurality of the legally cast ballots.
In the latter case, no question as to the correctness of the
returns or the manner of casting and counting the ballots is
before the deciding power, and generally the only result can be
that the election fails entirely. In the former, we have a contest
in the strict sense of the word, because of the opposing parties
are striving for supremacy. If it be found that the successful
candidate (according to the board of canvassers) obtained a
plurality in an illegal manner, and that another candidate was
the real victor, the former must retire in favor of the latter. In
the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast
ballots. In the one case the question is as to who received a
plurality of the legally cast ballots; in the other, the question is
confined to the personal character and circumstances of a
single individual.48 (Emphasis supplied)

The Court in Topacio v. Paredes cannot be said to have held

that "the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the
legally cast ballots."
A proper reading of the case reveals that the ruling therein is
that since the Court of First Instance is without jurisdiction to
try a disqualification case based on the eligibility of the person
who obtained the highest number of votes in the election, its
jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his
jurisdiction when he "declared that no one had been legally
elected president of the municipality of Imus at the general
election held in that town on 4 June 1912" where "the only
question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that
Abad as the second placer cannot be proclaimed in his stead.
The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold
that the respondent judge exceeded his jurisdiction in
declaring in those proceedings that no one was elected
municipal president of the municipality of Imus at the last
general election; and that said order and all subsequent
proceedings based thereon are null and void and of no effect;
and, although this decision is rendered on respondents'
answer to the order to show cause, unless respondents raised
some new and additional issues, let judgment be entered
accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of
decisions does not even have a legal basis to stand on. It was
a mere pronouncement of the Court comparing one process
with another and explaining the effects thereof. As an
independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the
legally cast ballots."
What prevents the transfer of the wreath of victory from the
ineligible candidate to another candidate?
When the issue being decided upon by the Court is the
eligibility of the one receiving a plurality of the legally cast
ballots and ineligibility is thereafter established, what stops the
Court from adjudging another eligible candidate who received
the next highest number of votes as the winner and bestowing
upon him that "wreath?"
An ineligible candidate who receives the highest number of
votes is a wrongful winner. By express legal mandate, he could
not even have been a candidate in the first place, but by virtue

of the lack of material time or any other intervening

circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had
the opportunity to hold himself out to the electorate as a
legitimate and duly qualified candidate. However,
notwithstanding the outcome of the elections, his ineligibility as
a candidate remains unchanged. Ineligibility does not only
pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast
in his favor cannot cure the defect of failure to qualify with the
substantive legal requirements of eligibility to run for public
office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of
candidates. When the law requires certain qualifications to be
possessed or that certain disqualifications be not possessed
by persons desiring to serve as elective public officials, those
qualifications must be met before one even becomes a
candidate. When a person who is not qualified is voted for and
eventually garners the highest number of votes, even the will
of the electorate expressed through the ballot cannot cure the
defect in the qualifications of the candidate. To rule otherwise
is to trample upon and rent asunder the very law that sets forth
the qualifications and disqualifications of candidates. We might
as well write off our election laws if the voice of the electorate
is the sole determinant of who should be proclaimed worthy to
occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in
Frivaldo v. COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon
does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of this
country. The qualifications prescribed for elective office cannot
be erased by the electorate alone.
The will of the people as expressed through the ballot cannot
cure the vice of ineligibility, especially if they mistakenly
believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in
the Republic of the Philippines, he must owe his total loyalty to
this country only, abjuring and renouncing all fealty and fidelity
to any other state.51(Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v.
COMELEC52 where the Court ruled that the ruling in Quizon
and Saya-ang cannot be interpreted without qualifications lest
"Election victory x x x becomes a magic formula to bypass
election eligibility requirements."53
We have ruled in the past that a candidates victory in the
election may be considered a sufficient basis to rule in favor of
the candidate sought to be disqualified if the main issue
involves defects in the candidates certificate of candidacy. We
said that while provisions relating to certificates of candidacy
are mandatory in terms, it is an established rule of
interpretation as regards election laws, that mandatory
provisions requiring certain steps before elections will be
construed as directory after the elections, to give effect to the

will of the people. We so ruled in Quizon v. COMELEC and

Saya-ang v. COMELEC:
The present case perhaps presents the proper time and
opportunity to fine-tune our above ruling. We say this with the
realization that a blanket and unqualified reading and
application of this ruling can be fraught with dangerous
significance for the rule of law and the integrity of our
elections. For one, such blanket/unqualified reading may
provide a way around the law that effectively negates election
requirements aimed at providing the electorate with the basic
information to make an informed choice about a candidates
eligibility and fitness for office.
The first requirement that may fall when an unqualified reading
is made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive
of being rendered toothless is Section 74 of the OEC that sets
out what should be stated in a COC. Section 78 may likewise
be emasculated as mere delay in the resolution of the petition
to cancel or deny due course to a COC can render a Section
78 petition useless if a candidate with false COC data wins. To
state the obvious, candidates may risk falsifying their COC
qualifications if they know that an election victory will cure any
defect that their COCs may have. Election victory then
becomes a magic formula to bypass election eligibility
requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a
seemingly valid COC, concealing any disqualification, and
employing every strategy to delay any disqualification case
filed against him so he can submit himself to the electorate
and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and
disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign
voice through the ballot by ensuring that its exercise respects
the rule of law. To allow the sovereign voice spoken through
the ballot to trump constitutional and statutory provisions on
qualifications and disqualifications of candidates is not
democracy or republicanism. It is electoral anarchy. When set
rules are disregarded and only the electorates voice spoken
through the ballot is made to matter in the end, it precisely
serves as an open invitation for electoral anarchy to set
in.1wphi1
Maquiling is not a second-placer as he obtained the
highest number of votes from among the qualified
candidates.
With Arnados disqualification, Maquiling then becomes the
winner in the election as he obtained the highest number of
votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v.
COMELEC54 and Jalosjos v. COMELEC55 that a void COC
cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not
considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are
disregarded, the will of the electorate is still respected, and
even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the

sovereign voice. The votes cast in favor of eligible and

legitimate candidates form part of that voice and must also be
respected.
As in any contest, elections are governed by rules that
determine the qualifications and disqualifications of those who
are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided
and the laurel is awarded to the next in rank who does not
possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v.
COMELEC56 that when the voters are well aware within the
realm of notoriety of a candidates disqualification and still cast
their votes in favor said candidate, then the eligible candidate
obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated
the rules affecting qualified candidates who placed second to
ineligible ones.
The electorates awareness of the candidates disqualification
is not a prerequisite for the disqualification to attach to the
candidate. The very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by the electorate of
a candidates disqualification is not necessary before a
qualified candidate who placed second to a disqualified one
can be proclaimed as the winner. The second-placer in the
vote count is actually the first-placer among the qualified
candidates.
That the disqualified candidate has already been proclaimed
and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed
prior to the filing of the certificate of candidacy voids not only
the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who
has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing
of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There was no chance for Arnados proclamation to be
suspended under this rule because Arnado failed to file his
answer to the petition seeking his disqualification. Arnado only
filed his Answer on 15 June 2010, long after the elections and
after he was already proclaimed as the winner.

The disqualifying circumstance affecting Arnado is his

citizenship. As earlier discussed, Arnado was both a Filipino
and an American citizen when he filed his certificate of
candidacy. He was a dual citizen disqualified to run for public
office based on Section 40(d) of the Local Government Code.
Section 40 starts with the statement "The following persons
are disqualified from running for any elective local position."
The prohibition serves as a bar against the individuals who fall
under any of the enumeration from participating as candidates
in the election.
With Arnado being barred from even becoming a candidate,
his certificate of candidacy is thus rendered void from the
beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his
disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted
already and he was already proclaimed the winner.
To hold that such proclamation is valid is to negate the
prohibitory character of the disqualification which Arnado
possessed even prior to the filing of the certificate of
candidacy. The affirmation of Arnado's disqualification,
although made long after the elections, reaches back to the
filing of the certificate of candidacy. Arnado is declared to be
not a candidate at all in the May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor
should not have been counted. This leaves Maquiling as the
qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government
Code will not apply.
WHEREFORE, premises considered, the Petition is
GRANTED. The Resolution of the COMELEC En Bane dated
2 February 2011 is hereby ANNULLED and SET ASIDE.
Respondent ROMMEL ARNADO y CAGOCO is disqualified
from running for any local elective position. CASAN MACODE
MAQUILING is hereby DECLARED the duly elected Mayor of
Kauswagan, Lanao del Norte in the 10 May 2010 elections.
This Decision is immediately executory. Let a copy of this
Decision be served personally upon the parties and the
Commission on Elections. No pronouncement as to costs. SO
ORDERED.
G.R. No. 170603

January 29, 2007

EDISON SO, Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:

The disqualifying circumstance surrounding Arnados

candidacy involves his citizenship. It does not involve the
commission of election offenses as provided for in the first
sentence of Section 68 of the Omnibus Election Code, the
effect of which is to disqualify the individual from continuing as
a candidate, or if he has already been elected, from holding
the office.

Assailed in this Petition for Review on Certiorari is the

Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
80437 which reversed the Decision2 of the Regional Trial Court
(RTC) of Manila, Branch 8, in Naturalization Case No. 02102984. Likewise assailed is the appellate courts Resolution
denying the Motion for Reconsideration of its Decision.
Antecedents

On February 28, 2002, petitioner Edison So filed before the

RTC a Petition for Naturalization3 under Commonwealth Act
(C.A.) No. 473, otherwise known as the Revised Naturalization
Law, as amended. He alleged the following in his petition:
He was born on February 17, 1982, in Manila; he is a Chinese
citizen who has lived in No. 528 Lavezares St., Binondo,
Manila, since birth; as an employee, he derives an average
annual income of around P100,000.00 with free board and
lodging and other benefits; he is single, able to speak and
write English, Chinese and Tagalog; he is exempt from the
filing of Declaration of Intention to become a citizen of the
Philippines pursuant to Section 6 of Commonwealth Act (C.A.)
No. 473, as amended, because he was born in the Philippines,
and studied in a school recognized by the Government where
Philippine history, government and culture are taught; he is a
person of good moral character; he believes in the principles
underlying the Philippine constitution; he has conducted
himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation
with the constituted government as well as with the community
in which he is living; he has mingled socially with the Filipinos
and has evinced a sincere desire to learn and embrace the
customs, traditions and ideals of the Filipino people; he has all
the qualifications provided under Section 2 and none of the
disqualifications under Section 4 of C.A. No. 473, as amended;
he is not opposed to organized government or affiliated with
any association or group of persons who uphold and teach
doctrines opposing all organized governments; he is not
defending or teaching the necessity or propriety of violence,
personal assault or assassination for the success or
predominance of mens ideas; he is not a polygamist or a
believer in the practice of polygamy; he has not been
convicted of any crime involving moral turpitude; he is not
suffering from any incurable contagious diseases or from
mental alienation; the nation of which he is a citizen is not at
war with the Philippines; it is his intention in good faith to
become a citizen of the Philippines and to renounce absolutely
and forever all allegiance and fidelity to any foreign prince,
potentate, state or sovereignty, and particularly to China; and
he will reside continuously in the Philippines from the time of
the filing of the petition up to the time of his admission as
citizen of the Philippines. The petition was docketed as
Naturalization Case No. 02-102984.
Attached to the petition were the Joint Affidavit4 of Atty. Artemio
Adasa, Jr. and Mark B. Salcedo; and petitioners Certificate of
Live Birth,5 Alien Certificate of Registration,6 and Immigrant
Certificate of Residence.7
On March 22, 2002, the RTC issued an Order8 setting the
petition for hearing at 8:30 a.m. of December 12 and 17, 2002
during which all persons concerned were enjoined to show
cause, if any, why the petition should not be granted. The
entire petition and its annexes, including the order, were
ordered published once a week for three consecutive weeks in
the Official Gazette and also in a newspaper of general
circulation in the City of Manila. The RTC likewise ordered that
copies of the petition and notice be posted in public and
conspicuous places in the Manila City Hall Building. 9
Petitioner thus caused the publication of the above order, as
well as the entire petition and its annexes, in the Official
Gazette on May 20, 200210 and May 27, 2002,11 and in Today,
a newspaper of general circulation in the City of Manila, on
May 25, 2002 and June 1, 2002.

No one opposed the petition. During the hearing, petitioner

presented Atty. Adasa, Jr. who testified that he came to know
petitioner in 1991 as the legal consultant and adviser of the So
familys business. He would usually attend parties and other
social functions hosted by petitioners family. He knew
petitioner to be obedient, hardworking, and possessed of good
moral character, including all the qualifications mandated by
law. Atty. Adasa, Jr. further testified that petitioner was gainfully
employed and presently resides at No. 528 Lavezares Street,
Binondo, Manila; petitioner had been practicing Philippine
tradition and those embodied in the Constitution; petitioner had
been socially active, mingled with some of his neighbors and
had conducted himself in a proper and irreproachable manner
during his entire stay in the Philippines; and petitioner and his
family observed Christmas and New Year and some occasions
such as fiestas. According to the witness, petitioner was not
disqualified under C.A. No. 473 to become a Filipino citizen: he
is not opposed to organized government or believes in the use
of force; he is not a polygamist and has not been convicted of
a crime involving moral turpitude; neither is he suffering from
any mental alienation or any incurable disease.12
Another witness for petitioner, Mark Salcedo, testified that he
has known petitioner for ten (10) years; they first met at a
birthday party in 1991. He and petitioner were classmates at
the University of Santo Tomas (UST) where they took up
Pharmacy. Petitioner was a member of some school
organizations and mingled well with friends.13Salcedo further
testified that he saw petitioner twice a week, and during fiestas
and special occasions when he would go to petitioners house.
He has known petitioner to have resided in Manila since birth.
Petitioner is intelligent, a person of good moral character, and
believes in the principles of the Philippine Constitution.
Petitioner has a gainful occupation, has conducted himself in a
proper and irreproachable manner and has all the
qualifications to become a Filipino citizen.
Petitioner also testified and attempted to prove that he has all
the qualifications and none of the disqualifications to become a
citizen of the Philippines.
At the conclusion of his testimonial evidence, petitioner offered
in evidence the following documents: (1) Certificate of Live
Birth;14 (2) Alien Certificate of Registration;15 (3) Immigrant
Certificate of Residence;16 (4) Elementary Pupils17 and High
School Students18 Permanent Record issued by Chang Kai
Shek College; (5) Transcript of Record issued by the University
of Santo Tomas;19 (6) Certification of Part-Time Employment
dated November 20, 2002;20 (7) Income Tax Returns and
Certificate of Withholding Tax for the year 2001;21 (8)
Certification from Metrobank that petitioner is a depositor;22 (9)
Clearances that he has not been charged or convicted of any
crime involving moral turpitude;23 and (10) Medical Certificates
and Psychiatric Evaluation issued by the Philippine General
Hospital.24 The RTC admitted all these in evidence.
The RTC granted the petition on June 4, 2003.25 The fallo of
the decision reads:
WHEREFORE, judgment is hereby rendered GRANTING the
petition and declaring that petitioner EDISON SO has all the
qualifications and none of the disqualifications to become a
Filipino citizen and he is hereby admitted as citizen of the
Philippines, after taking the necessary oath of allegiance, as
soon as this decision becomes final, subject to payment of
cost of P30,000.00.

SO ORDERED.26
The trial court ruled that the witnesses for petitioner had known
him for the period required by law, and they had affirmed that
petitioner had all the qualifications and none of the
disqualifications to become a Filipino citizen. Thus, the court
concluded that petitioner had satisfactorily supported his
petition with evidence.
Respondent Republic of the Philippines, through the Office of
the Solicitor General (OSG), appealed the decision to the CA
on the following grounds:
I.
THE LOWER COURT ERRED IN GRANTING THE PETITION
FOR NATURALIZATION DESPITE THE FACT THAT THE
TWO (2) CHARACTER WITNESSES, NAMELY: ARTEMIO
ADASA, JR. AND MARK SALCEDO WERE NOT QUALIFIED
CHARACTER WITNESSES.

Committee on Naturalization. It insisted that even in the

absence of any opposition, a petition for naturalization may be
dismissed.
In its Decision33 dated August 4, 2005, the CA set aside the
ruling of the RTC and dismissed the petition for naturalization
without prejudice.34 According to the CA, petitioners two (2)
witnesses were not credible because they failed to mention
specific details of petitioners life or character to show how well
they knew him; they merely "parroted" the provisions of the
Naturalization Act without clearly explaining their applicability
to petitioners case.35 The appellate court likewise ruled that
petitioner failed to comply with the requirement of the law that
the applicant must not be less than 21 years of age on the day
of the hearing of the petition; during the first hearing on
December 12, 2002, petitioner was only twenty (20) years,
nine (9) months, and twenty five (25) days old, falling short of
the requirement.36 The CA stated, however, that it was not its
intention to forever close the door to any future application for
naturalization which petitioner would file, and that it believes
that he would make a good Filipino citizen in due time, a
decided asset to this country.37

II.
PETITIONER IS NOT QUALIFIED TO BE ADMITTED AS
CITIZEN OF THE PHILIPPINES.27
Respondent contended that based on the evidence on record,
appellee failed to prove that he possesses all the qualifications
under Section 2 and none of the disqualifications under
Section 4 of C.A. No. 473. It insisted that his two (2) character
witnesses did not know him well enough to vouch for his
fitness to become a Filipino citizen; they merely made general
statements without giving specific details about his character
and moral conduct.28The witnesses did not even reside in the
same place as petitioner.29 Respondent likewise argued that
petitioner himself failed to prove that he is qualified to become
a Filipino citizen because he did not give any explanation or
specific answers to the questions propounded by his lawyer.
He merely answered "yes" or "no" or gave general statements
in answer to his counsels questions. Thus, petitioner was
unable to prove that he had all the qualifications and none of
the disqualifications required by law to be a naturalized Filipino
citizen.30
On the other hand, petitioner averred that he graduated cum
laude from the UST with the degree of Bachelor of Science in
Pharmacy. He is now on his second year as a medical student
at the UST Medicine and Surgery. He avers that the
requirements for naturalization under C.A. No. 473, as
amended by LOI 270, in relation to Presidential Decree Nos.
836 and 1379, had been relaxed after the Philippine
government entered into diplomatic relations with the Peoples
Republic of China; the requirements were further relaxed when
Republic Act (R.A.) No. 9139 was signed into law.31 Petitioner
pointed out that the petition, with all its annexes, was
published in the official gazette and a newspaper of general
circulation; notices were likewise sent to the National Bureau
of Investigation, Department of Justice, Department of Foreign
Affairs, and the OSG. But none from these offices came
forward to oppose the petition before the lower
court.32 Petitioner insisted that he has all the qualifications and
none of the disqualifications to become Filipino. This was
clearly established by his witnesses.
In its Reply Brief, respondent alleged that R.A. No. 9139
applies to administrative naturalization filed with the Special

Petitioners motion for reconsideration38 was denied in a

Resolution39 dated November 24, 2005; hence, the present
petition grounded on the sole issue:
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
REVERSED THE DECISION OF THE REGIONAL TRIAL
COURT OF MANILA.40
In support of his petition, petitioner reiterates the arguments he
set forth in the Brief filed before the CA.
In its Comment41 on the petition, respondent countered that
R.A. No. 9139 (which took effect on August 8, 2001 and where
the applicants age requirement was lowered to eighteen (18)
years old), refers only to administrative naturalization filed with
the Special Committee on Naturalization; it does not apply to
judicial naturalization before the court, as in the present
case.42 Respondent, through the OSG, avers that its failure to
oppose the petition before the court a quo does not preclude it
from appealing the decision of the RTC to the CA; it is even
authorized to question an already final decision by filing a
petition for cancellation of citizenship.43 Lastly, respondent
reiterates its argument that petitioners character witnesses
are not qualified to prove the formers qualifications.
In determining whether or not an applicant for naturalization is
entitled to become a Filipino citizen, it is necessary to resolve
the following issues: (1) whether or not R.A. No. 9139 applies
to petitions for naturalization by judicial act; and (2) whether or
not the witnesses presented by petitioner are "credible" in
accordance with the jurisprudence and the definition and
guidelines set forth in C.A. No. 473.
The petition is denied for lack of merit.
Naturalization signifies the act of formally adopting a foreigner
into the political body of a nation by clothing him or her with the
privileges of a citizen.44 Under current and existing laws, there
are three ways by which an alien may become a citizen by
naturalization: (a) administrative naturalization pursuant to
R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No.
473, as amended; and (c) legislative naturalization in the form

of a law enacted by Congress bestowing Philippine citizenship

to an alien.45

laws, an alien who is not qualified under R.A. No. 9139 may
still be naturalized under C.A. No. 473.

Petitioners contention that the qualifications an applicant for

naturalization should possess are those provided for in R.A.
No. 9139 and not those set forth in C.A. No. 473 is barren of
merit. The qualifications and disqualifications of an applicant
for naturalization by judicial act are set forth in Sections
246 and 447 of C.A. No. 473. On the other hand, Sections
348 and 449 of R.A. No. 9139 provide for the qualifications and
disqualifications of an applicant for naturalization
by administrative act.

Thus, absent a specific provision expressly amending C.A. No.

473, the law stands and the qualifications and disqualifications
set forth therein are maintained.

Indeed, R.A. No. 9139 was enacted as a remedial measure

intended to make the process of acquiring Philippine
citizenship less tedious, less technical and more
encouraging.50 It likewise addresses the concerns of degree
holders who, by reason of lack of citizenship requirement,
cannot practice their profession, thus promoting "brain gain"
for the Philippines.51 These however, do not justify petitioners
contention that the qualifications set forth in said law apply
even to applications for naturalization by judicial act.
First. C.A. No. 473 and R.A. No. 9139 are separate and
distinct laws the former covers all aliens regardless of class
while the latter covers native-born aliens who lived here in the
Philippines all their lives, who never saw any other country and
all along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and affinity to
the customs and traditions.52 To reiterate, the intention of the
legislature in enacting R.A. No. 9139 was to make the process
of acquiring Philippine citizenship less tedious, less technical
and more encouraging which is administrative rather than
judicial in nature. Thus, although the legislature believes that
there is a need to liberalize the naturalization law of the
Philippines, there is nothing from which it can be inferred that
C.A. No. 473 was intended to be amended or repealed by R.A.
No. 9139. What the legislature had in mind was merely to
prescribe another mode of acquiring Philippine citizenship
which may be availed of by native born aliens. The only
implication is that, a native born alien has the choice to apply
for judicial or administrative naturalization, subject to the
prescribed qualifications and disqualifications.
In the instant case, petitioner applied for naturalization by
judicial act, though at the time of the filing of his petition,
administrative naturalization under R.A. No. 9139 was already
available. Consequently, his application should be governed by
C.A. No. 473.
Second. If the qualifications prescribed in R.A. No. 9139 would
be made applicable even to judicial naturalization, the
coverage of the law would be broadened since it would then
apply even to aliens who are not native born. It must be
stressed that R.A. No. 9139 applies only to aliens who were
born in the Philippines and have been residing here.
Third. Applying the provisions of R.A. No. 9139 to judicial
naturalization is contrary to the intention of the legislature to
liberalize the naturalization procedure in the country. One of
the qualifications set forth in R.A. No. 9139 is that the applicant
was born in the Philippines and should have been residing
herein since birth. Thus, one who was born here but left the
country, though resided for more than ten (10) years from the
filing of the application is also disqualified. On the other hand,
if we maintain the distinct qualifications under each of the two

In any event, petitioner failed to prove that the witnesses he

presented were competent to vouch for his good moral
character, and are themselves possessed of good moral
character. It must be stressed that character witnesses in
naturalization proceedings stand as insurers of the applicants
conduct and character. Thus, they ought to testify on specific
facts and events justifying the inference that the applicant
possesses all the qualifications and none of the
disqualifications provided by law.53
Petitioners witnesses, Atty. Adasa and Salcedo, did not testify
on his specific acts; they did not elaborate on his traits. Their
testimonies do not convince the Court that they personally
know petitioner well and are therefore in a position to vouch for
his qualifications. As correctly found by the CA, the witnesses
testimonies consisted mainly of general statements in answer
to the leading questions propounded by his counsel. What they
conveniently did was to enumerate the qualifications as set
forth in the law without giving specific details. The pertinent
portion of Atty. Adasas testimony follows:
q Do you know the petitioner Edison So?
a Yes, Sir.
q Will you please tell us how did you come to know him?
a Well I came to know him[,] the petitioner[,] when I was the
legal consultant and adviser of their family business and I used
to ah (sic) me[e]t him during my visit to their place way back in
1991 to 1992.
q From that day of 1991 up to the present, is your relationship
with the petitioner more or less contin[u]ous?
a Yes, sir, because aside from the usual professional visit that I
did to their family some social function was sponsored
normally and I am (sic) invited and I used to attend.
q During the birthday party of the petitioner, did you usually
attend petitioners birthday?
a On several occasions I attend the birthday.
q Will you please tell us where the petitioner resides at
present?
a At present the petitioner resides at No. 528 Lavezares
Street, Binondo, Manila.
q Do you know for how long the petitioner resides in the
Philippines?
a As far as I personally known (sic) Your Honor is that since
birth.

q During all the times that you have know[n] the petitioner,
what is your impression of his conduct?

suggests that he was close to petitioner and knew him well

enough to vouch for his qualifications.

a Well ah (sic) I have personally known him to be obedient and

hard working individual and ah (sic) he has a good moral
character and he has been ah (sic) no adverse report
concerning the character of the petitioner.

Salcedo, on the other hand, testified thus:

q In your opinion does the petitioner has the qualifications

necessary to become [a] citizen of the Philippines?
a Yes.
q Can you tell us why do you say so?
a I would say Your Honor that petitioner has posses (sic) all
the qualifications mandated by law and presently he is more
than 21 years old and he has resided in the Philippines
particularly in the City of Manila contin[u]ously for more than
ten (10) years and that since his birth; and that he has good
moral character and I have observed that ah (sic) he has been
practicing Philippine traditions and ah (sic) those embodied in
the Philippine constitution and he has been socially active and
meddle (sic) some of his neighbors and ah (sic) I am sure he
has desire to embrace and learn the customs and ideas and
traditions in the Philippine[s] and as I earlier mentioned that he
conducted himself in proper and approachable (sic) manner
during his entire residence in our country and he has a gainful
occupation.

q Now do you know the petitioner in this case Edison So?

a Yes, Sir.
q Are you personally acquainted with him?
a Yes, Sir.
q How long have you known the petitioner?
a I have known him for about ten (10) years, Sir.
q Will you please inform the Honorable court under what
circumstances did you come to know the petitioner?
a I met him in a birthday party in 1991, Sir.
q And from 1991 up to the present is your relationship with the
petitioner more or less contin[u]ous?
a Yes, Sir.
q How often did you see the petitioner?

q Will you please tell us what are these customs which the
petitioner embraced?
a Well I have observed that ah (sic) together with his family
they used to ah observed (sic) the usual Filipino celebration
during Christmas and new year and some occasions such as
fiestas.
q And do you know whether petitioner is not disqualified under
Commonwealth Act to become Filipino citizen of the
Philippines (sic)?

a I see him twice a week, Sir.

q And during this time that you met the petitioner, what did you
usually do?
a We play some games, Sir. We play Patentero (sic).
q Do you go to church together?
a Yes, Sir.

a Ah there has been no incident or occasion which I learned

that would disqualify of coming (sic) the citizen of the Republic
of the Philippines. I have noticed that ah (sic) he is qualified
under Commonwealth Act 473 as amended because he is not
opposed to ah (sic) organized government. His family and
himself does not believed (sic) in the use of force in the
success of his ideas and ah (sic) he is not a poligamist (sic) or
believer in the practice of illegal and he has not been convicted
in any crime involving him in any crime (sic). and he is not
suffering from any mental alienation or any incurable
contidious (sic) disease. as provided for.
q Will you please tell us why you know all these stage?
a Because of ah (sic) the personal attachment with his family
we have continuously having ah (sic) the usual contact with his
family.54
It can thus be inferred that Atty. Adasa is close to petitioners
family, but not specifically to petitioner. Atty. Adasas
statements refer to his observations on the familys practices
and not to petitioner in particular. Nothing in his testimony

q During fiestas in your place, did the petitioner go?

a Yes, Sir.
q How about during fiestas in the place where the petitioner
reside[s], did you also go during fiestas?
a Yes, Sir.
q During occasion in the house of the petitioner, are you
invited?
a Yes, Sir.
q How many time[s] did you go to his (sic) residence of the
petitioner?
a Twice a week, sir.
q Will you please tell us where the petitioner resides?

a The petitioner resides at 528 Lavezares Street, Tondo,

Manila, Sir.

q Where is he studying?
a In UST, Sir.

q For how long does the petitioner reside in that address?

q Is he your classmate?
a Since birth, Sir.
a Yes, Sir.
q During all the times that you have known the petitioner, will
you please tell us your impression of his conduct?
a He is a person of good moral, sir, and he believed in the
principles of the Philippines (sic) Constitution.
q Will you please cite one or two of these principles underlined
the principles (sic) of the Philippines (sic) Constitution?
a Ah the Philippines is a Republican of the (sic) state,
sovereignty preside (sic) over the people and the government
authority emanate from within; and the other one is the civilian
government is not supreme over the military.
q Now in your opinion does the petitioner have all the
qualifications necessary to become a citizen of the
Philippines?

q What was his course?

a Pharmacy, Sir.
q So when you said he was the secretary he only works as
part time secretary?
a Yes, Sir.
q You said the petitioner meddle (sic) socially with the
Filipinos?
a Yes, Sir.
q Will you please name at least one of those Filipinos the
petitioner meddle (sic) with?

a Yes, Sir.
a Samuel Falmera, Sir, Marlon Kahocom, Sir.
q What are these qualifications?
q Who else?
a He is at least 21 years old, he is a person of good moral and
has been residing in the Philippines since birth.

a Elmer Ramos, Sir.

q What else?

q Who else?

a He must be a Filipino and ah must practice the traditions and

customs, Sir.

a Sharmaine Santos, Sir.

q You said the petitioner is of good moral character?

q Do you know whether the petitioner conducted himself in a

proper and appraochable (sic) manner during the period of his
residence in the Philippines?
a Yes, Sir.
q Do you know if the petitioner has a gainful occupation?

a Yes, Sir.
q Why do you know that?
a As a classmate I can see him I go with him and ah (sic) I can
see that he has ah better approached (sic) with other people
and I can see that he mixed very well with friends.

a Yes, Sir.
q So during school days you see him everyday?
q What is the occupation of the petitioner?
a Yes, Sir.
a Ah (sic) he is the secretary in a wood factory in
Commonwealth, Sir.
q And aside from being the secretary, what else did the
petitioner do?
a He help (sic) in the factory cargo, Sir.

q When there are no classes during the vacation you see the
petitioner twice a week?
a Yes, Sir.

q Is the petitioner still a student?

q Does the petitioner (sic), do you think the petitioner is not

disqualified to become the citizen of the Republic of the
Philippines?

a Yes, Sir.

a Yes, Sir, he is not disqualified, Sir.

q Why do you say that he is not disqualified?

a Because he abide [by] any law in the government, sir, ah
(sic) he is not polygamus and he is not convicted of any crime,
Sir.
q Do you know ever the petitioner oppose to any organized
government?

a "credible person" is not only an individual who has not been

previously convicted of a crime; who is not a police character
and has no police record; who has not perjured in the past; or
whose affidavit or testimony is not incredible. What must be
credible is not the declaration made but the person making it.
This implies that such person must have a good standing in
the community; that he is known to be honest and upright; that
he is reputed to be trustworthy and reliable; and that his word
may be taken on its face value, as a good warranty of the
applicants worthiness.57

a No, Sir.
q Do you know whether he believe[s] in the use of force in any
such ideas?
a No, Sir.
q Do you know if the petitioner is a believer in the practice of
polygamy?
a No, Sir.
q Do you know whether the petitioner suffer[s] from mental
alienation or incurable disease illnesses?
a No, Sir.
q Why do you know?
a I know him personally, sir, I have been with him as my
classmate, sir and ah (sic) he is a very intelligent person, Sir.
q Is the petitioner a member also of any organization or
association in your school?
a Yes, Sir.
q What organization?
a He is a member of Wishten and a member of starget, Sir.
q What does starget means?

The records likewise do not show that the character witnesses

of petitioner are persons of good standing in the community;
that they are honest and upright, or reputed to be trustworthy
and reliable. The most that was established was the
educational attainment of the witnesses; however, this cannot
be equated with their credibility. In fine, petitioner focused on
presenting evidence tending to build his own good moral
character and neglected to establish the credibility and good
moral character of his witnesses.58
We do not agree with petitioners argument that respondent is
precluded from questioning the RTC decision because of its
failure to oppose the petition. A naturalization proceeding is not
a judicial adversary proceeding, and the decision rendered
therein does not constitute res judicata. A certificate of
naturalization may be cancelled if it is subsequently discovered
that the applicant obtained it by misleading the court upon any
material fact. Law and jurisprudence even authorize the
cancellation of a certificate of naturalization upon grounds or
conditions arising subsequent to the granting of the
certificate.59 If the government can challenge a final grant of
citizenship, with more reason can it appeal the decision of the
RTC within the reglementary period despite its failure to
oppose the petition before the lower court.
Thus, petitioner failed to show full and complete compliance
with the requirements of naturalization law. For this reason, we
affirm the decision of the CA denying the petition for
naturalization without prejudice.
It must be stressed that admission to citizenship is one of the
highest privileges that the Republic of the Philippines can
confer upon an alien. It is a privilege that should not be
conferred except upon persons fully qualified for it, and upon
strict compliance with the law.60

a Starget is an organization of Chinese community in UST, Sir.

q How about the other one which you mentioned?
a Ah (sic) these are twisting, sir he represents the ah the (sic)
school intercollegiate, Sir.55

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED

for lack of merit.
SO ORDERED.

Again, Salcedo did not give specific details on petitioners

qualifications.
In sum, petitioners witnesses clearly did not personally know
him well enough; their testimonies do not satisfactorily
establish that petitioner has all the qualifications and none of
the disqualifications prescribed by law.
In naturalization proceedings, it is the burden of the applicant
to prove not only his own good moral character but also the
good moral character of his/her witnesses, who must be
credible persons.56 Within the purview of the naturalization law,

G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG

PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar,
Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive
Secretary, Manila City Mayor LITO ATIENZA, Chief of the
Philippine National Police, Gen. ARTURO M. LOMIBAO,
NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western
Police District Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848

April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman,

Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul
Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta
Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael
Torres, Rendo Sabusap, Precious Balute, Roxanne
Magboo, Ernie Bautista, Joseph de Jesus, Margarita
Escober, Djoannalyn Janier, Magdalena Sellote, Manny
Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los
Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The
Executive Secretary and in his personal capacity,
ANGELO REYES, in his official capacity as Secretary of
the Interior and Local Governments, ARTURO LOMIBAO,
in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the
Chief, National Capital Regional Police Office (NCRPO),
PEDRO BULAONG, in his official capacity as the Chief,
Manila Police District (MPD) AND ALL OTHER PUBLIC
OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS,Respondents.

violently dispersed by the police. They further assert that on

October 5, 2005, a group they participated in marched to
Malacaang to protest issuances of the Palace which, they
claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among
them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners
in G.R. No. 169881,3 allege that they conduct peaceful mass
actions and that their rights as organizations and those of their
individual members as citizens, specifically the right to
peaceful assembly, are affected by Batas Pambansa No. 880
and the policy of "Calibrated Preemptive Response" (CPR)
being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU cosponsored was to be conducted at the Mendiola bridge but
police blocked them along C.M. Recto and Lepanto Streets
and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multisectoral rally which KMU also co-sponsored was scheduled to
proceed along Espaa Avenue in front of the University of
Santo Tomas and going towards Mendiola bridge. Police
officers blocked them along Morayta Street and prevented
them from proceeding further. They were then forcibly
dispersed, causing injuries on one of them.4 Three other
rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of
them in toto and others only Sections 4, 5, 6, 12, 13(a), and
14(a), as well as the policy of CPR. They seek to stop violent
dispersals of rallies under the "no permit, no rally" policy and
the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880

x---------------------------------x
G.R. No. 169881

April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson

ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
represented by its National President, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP
DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT.
PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege
that they are citizens and taxpayers of the Philippines and that
their rights as organizations and individuals were violated
when the rally they participated in on October 6, 2005 was
violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess
del Prado, et al., in G.R. No. 169848,2 who allege that they
were injured, arrested and detained when a peaceful mass
action they held on September 26, 2005 was preempted and

An Act Ensuring The Free Exercise By The People Of Their

Right Peaceably To Assemble And Petition The Government
[And] For Other Purposes
Be it enacted by the Batasang Pambansa in session
assembled:
Section 1. Title. This Act shall be known as "The Public
Assembly Act of 1985."
Sec. 2. Declaration of policy. The constitutional right of the
people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and
stability of the State. To this end, the State shall ensure the
free exercise of such right without prejudice to the rights of
others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. For purposes of this Act:
(a) "Public assembly" means any rally,
demonstration, march, parade, procession or any
other form of mass or concerted action held in a
public place for the purpose of presenting a lawful
cause; or expressing an opinion to the general
public on any particular issue; or protesting or
influencing any state of affairs whether political,
economic or social; or petitioning the government for
redress of grievances.
The processions, rallies, parades, demonstrations,
public meetings and assemblages for religious
purposes shall be governed by local
ordinances; Provided, however, That the declaration

of policy as provided in Section 2 of this Act shall be

faithfully observed.

danger to public order, public safety, public

convenience, public morals or public health.

The definition herein contained shall not include

picketing and other concerted action in strike areas
by workers and employees resulting from a labor
dispute as defined by the Labor Code, its
implementing rules and regulations, and by the
Batas Pambansa Bilang 227.

(b) The mayor or any official acting in his behalf shall

act on the application within two (2) working days
from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said
application shall be posted by the applicant on the
premises of the office of the mayor and shall be
deemed to have been filed.

(b) "Public place" shall include any highway,

boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open
space of public ownership where the people are
allowed access.
(c) "Maximum tolerance" means the highest degree
of restraint that the military, police and other peace
keeping authorities shall observe during a public
assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the
change of the place and time of the public assembly,
rerouting of the parade or street march, the volume
of loud-speakers or sound system and similar
changes.
Sec. 4. Permit when required and when not required. A
written permit shall be required for any person or persons to
organize and hold a public assembly in a public place.
However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the
consent of the owner or the one entitled to its legal possession
is required, or in the campus of a government-owned and
operated educational institution which shall be subject to the
rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period
as provided for by law are not covered by this Act.
Sec. 5. Application requirements. All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall
include the names of the leaders or organizers; the
purpose of such public assembly; the date, time and
duration thereof, and place or streets to be used for
the intended activity; and the probable number of
persons participating, the transport and the public
address systems to be used.
(b) The application shall incorporate the duty and
responsibility of the applicant under Section 8
hereof.
(c) The application shall be filed with the office of the
mayor of the city or municipality in whose jurisdiction
the intended activity is to be held, at least five (5)
working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be
duly acknowledged in writing, the office of the city or
municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the
city or municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official
acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the
public assembly will create a clear and present

(c) If the mayor is of the view that there is imminent

and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be heard
on the matter.
(d) The action on the permit shall be in writing and
served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf
denies the application or modifies the terms thereof
in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan
Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight
(48) hours after receipt of the same. No appeal bond
and record on appeal shall be required. A decision
granting such permit or modifying it in terms
satisfactory to the applicant shall be immediately
executory.
(g) All cases filed in court under this section shall be
decided within twenty-four (24) hours from date of
filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in
his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal
appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. Should the proposed
public assembly involve the use, for an appreciable length of
time, of any public highway, boulevard, avenue, road or street,
the mayor or any official acting in his behalf may, to prevent
grave public inconvenience, designate the route thereof which
is convenient to the participants or reroute the vehicular traffic
to another direction so that there will be no serious or undue
interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. It shall be the duty and
responsibility of the leaders and organizers of a public
assembly to take all reasonable measures and steps to the
end that the intended public assembly shall be conducted
peacefully in accordance with the terms of the permit. These
shall include but not be limited to the following:
(a) To inform the participants of their responsibility
under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order
to prevent non-demonstrators from disrupting the
lawful activities of the public assembly;

(c) To confer with local government officials

concerned and law enforcers to the end that the
public assembly may be held peacefully;

participants of the public assembly, and after

allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;

(d) To see to it that the public assembly undertaken

shall not go beyond the time stated in the permit;
and

(d) No arrest of any leader, organizer or participant

shall also be made during the public assembly
unless he violates during the assembly a law,
statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;

(e) To take positive steps that demonstrators do not

molest any person or do any act unduly interfering
with the rights of other persons not participating in
the public assembly.
Sec. 9. Non-interference by law enforcement authorities.
Law enforcement agencies shall not interfere with the holding
of a public assembly. However, to adequately ensure public
safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be
imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to
perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall
observe the following guidelines:
(a) Members of the law enforcement contingent who
deal with the demonstrators shall be in complete
uniform with their nameplates and units to which
they belong displayed prominently on the front and
dorsal parts of their uniform and must observe the
policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent
shall not carry any kind of firearms but may be
equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or
any similar anti-riot device shall not be used unless
the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction
of property.
Sec. 11. Dispersal of public assembly with permit. No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such
public assembly as follows:
(a) At the first sign of impending violence, the
ranking officer of the law enforcement contingent
shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or
other harmful objects from the participants are
thrown at the police or at the non-participants, or at
any property causing damage to such property, the
ranking officer of the law enforcement contingent
shall audibly warn the participants that if the
disturbance persists, the public assembly will be
dispersed;
(c) If the violence or disturbance prevailing as stated
in the preceding subparagraph should not stop or
abate, the ranking officer of the law enforcement
contingent shall audibly issue a warning to the

(e) Isolated acts or incidents of disorder or breach of

the peace during the public assembly shall not
constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. When
the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully
dispersed.
Sec. 13. Prohibited acts. The following shall constitute
violations of the Act:
(a) The holding of any public assembly as defined in
this Act by any leader or organizer without having
first secured that written permit where a permit is
required from the office concerned, or the use of
such permit for such purposes in any place other
than those set out in said permit: Provided, however,
That no person can be punished or held criminally
liable for participating in or attending an otherwise
peaceful assembly;
(b) Arbitrary and unjustified denial or modification of
a permit in violation of the provisions of this Act by
the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or
acknowledge receipt of the application for a permit
by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise
denying the exercise of the right to peaceful
assembly;
(e) The unnecessary firing of firearms by a member
of any law enforcement agency or any person to
disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one
hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive
weapon or device such as firearm, pillbox,
bomb, and the like;
2. the carrying of a bladed weapon and
the like;
3. the malicious burning of any object in
the streets or thoroughfares;
4. the carrying of firearms by members of
the law enforcement unit;
5. the interfering with or intentionally
disturbing the holding of a public assembly

by the use of a motor vehicle, its horns

and loud sound systems.
Sec. 14. Penalties. Any person found guilty and convicted of
any of the prohibited acts defined in the immediately preceding
section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished
by imprisonment of one month and one day to six
months;
(b) violations of subparagraphs (b), (c), (d), (e), (f),
and item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six
years;
(c) violation of item 1, subparagraph (g) shall be
punished by imprisonment of six months and one
day to six years without prejudice to prosecution
under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of
subparagraph (g) shall be punished by imprisonment
of one day to thirty days.
Sec. 15. Freedom parks. Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or
mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
Sec. 16. Constitutionality. Should any provision of this Act be
declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected
thereby.
Sec. 17. Repealing clause. All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof
which are inconsistent with the provisions of this Act are
hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. This Act shall take effect upon its
approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release
by Malacaang dated September 21, 2005, shown in Annex
"A" to the Petition in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS

disorder and incite people against the duly constituted

authorities, we have instructed the PNP as well as the local
government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and
arrest all persons violating the laws of the land as well as
ordinances on the proper conduct of mass actions and
demonstrations.
The rule of calibrated preemptive response is now in force, in
lieu of maximum tolerance. The authorities will not stand aside
while those with ill intent are herding a witting or unwitting
mass of people and inciting them into actions that are inimical
to public order, and the peace of mind of the national
community.
Unlawful mass actions will be dispersed. The majority of lawabiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in
lawful and peaceful conduct befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based
on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No.
880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or
absence of a clear and present danger. It also curtails the
choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly
form part of the message for which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to
mass actions in support of the government. The words "lawful
cause," "opinion," "protesting or influencing" suggest the
exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law
applies to assemblies against the government because they
are being tolerated. As a content-based legislation, it cannot
pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No.
880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances
because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal
and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually
prohibitions.
Furthermore, the law delegates powers to the Mayor without
providing clear standards. The two standards stated in the
laws (clear and present danger and imminent and grave
danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act
that alters the standard of maximum tolerance set forth in B.P.
No. 880, aside from being void for being vague and for lack of
publication.

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO
ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of antigovernment groups to inflame the political situation, sow

Finally, petitioners KMU, et al., argue that the Constitution sets

no limits on the right to assembly and therefore B.P. No. 880
cannot put the prior requirement of securing a permit. And
even assuming that the legislature can set limits to this right,
the limits provided are unreasonable: First, allowing the Mayor
to deny the permit on clear and convincing evidence of a clear
and present danger is too comprehensive. Second, the fiveday requirement to apply for a permit is too long as certain

events require instant public assembly, otherwise interest on

the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the
government takes action even before the rallyists can perform
their act, and that no law, ordinance or executive order
supports the policy. Furthermore, it contravenes the maximum
tolerance policy of B.P. No. 880 and violates the Constitution
as it causes a chilling effect on the exercise by the people of
the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as
Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District
(MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as
Executive Secretary and in his personal capacity; Angelo
Reyes, as Secretary of the Interior and Local
Governments; Arturo Lomibao, as Chief Vidal Querol, as
Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other
public officers and private individuals acting under their control,
supervision and instruction.
Respondents in G.R. No. 169881 are the
Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and
PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have
not presented evidence that they had been "injured,
arrested or detained because of the CPR," and that
"those arrested stand to be charged with violating
Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face.
Petitioners cannot honestly claim that the time, place
and manner regulation embodied in B.P. No. 880
violates the three-pronged test for such a measure,
to wit: (a) B.P. No. 880 is content-neutral, i.e., it has
no reference to content of regulated speech; (b) B.P.
No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be
equally well served by a means that is less intrusive
of free speech interests; and (c) B.P. No. 880 leaves
open alternative channels for communication of the
information.6
3. B.P. No. 880 is content-neutral as seen from the
text of the law. Section 5 requires the statement of
the public assemblys time, place and manner of
conduct. It entails traffic re-routing to prevent grave
public inconvenience and serious or undue
interference in the free flow of commerce and trade.
Furthermore, nothing in B.P. No. 880 authorizes the
denial of a permit on the basis of a rallys program
content or the statements of the speakers therein,
except under the constitutional precept of the "clear
and present danger test." The status of B.P. No. 880
as a content-neutral regulation has been recognized
in Osmea v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a
content-neutral regulation of the time, place and
manner of holding public assemblies and the law
passes the test for such regulation, namely, these
regulations need only a substantial governmental
interest to support them.

5. Sangalang v. Intermediate Appellate Court9 held

that a local chief executive has the authority to
exercise police power to meet "the demands of the
common good in terms of traffic decongestion and
public convenience." Furthermore, the discretion
given to the mayor is narrowly circumscribed by
Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15
of the law.
6. The standards set forth in the law are not
inconsistent. "Clear and convincing evidence that
the public assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health" and
"imminent and grave danger of a substantive evil"
both express the meaning of the "clear and present
danger test."10
7. CPR is simply the responsible and judicious use
of means allowed by existing laws and ordinances to
protect public interest and restore public order. Thus,
it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of
existing laws, regulations and ordinances to prevent
chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in
his Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the
Mayor power to deny a permit independently of B.P. No. 880;
that his denials of permits were under the "clear and present
danger" rule as there was a clamor to stop rallies that disrupt
the economy and to protect the lives of other people; that J. B.
L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit;
that the permit is for the use of a public place and not for
the exercise of rights; and that B.P. No. 880 is not a contentbased regulation because it covers all rallies.
The petitions were ordered consolidated on February 14,
2006. After the submission of all the Comments, the Court set
the cases for oral arguments on April 4, 2006,14 stating the
principal issues, as follows:
1. On the constitutionality of Batas Pambansa No.
880, specifically Sections 4, 5, 6, 12 13(a) and 14(a)
thereof, and Republic Act No. 7160:
(a) Are these content-neutral or contentbased regulations?
(b) Are they void on grounds of
overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers
to Mayors?
(e) Do they violate international human
rights treaties and the Universal
Declaration of Human Rights?
2. On the constitutionality and legality of the policy of
Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to
vagueness?
(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to

the rallies of September 26 and October 4,
5 and 6, 2005?
During the course of the oral arguments, the following
developments took place and were approved and/or noted by
the Court:
1. Petitioners, in the interest of a speedy resolution
of the petitions, withdrew the portions of their
petitions raising factual issues, particularly those
raising the issue of whether B.P. No. 880 and/or
CPR is void as applied to the rallies of September
20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation
of the Chief Justice that CPR should no longer be
used as a legal term inasmuch as, according to
respondents, it was merely a "catchword" intended
to clarify what was thought to be a misunderstanding
of the maximum tolerance policy set forth in B.P. No.
880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted
to the Ombudsman, it does not replace B.P. No. 880
and the maximum tolerance policy embodied in that
law.

"It is rather to be expected that more or less disorder will mark

the public assembly of the people to protest against
grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of
excitement, and the greater, the grievance and the more
intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the
authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and a snare
and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those
who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not
happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained
the primacy of freedom of speech and to assembly and petition
over comfort and convenience in the use of streets and parks.

The Court will now proceed to address the principal issues,

taking into account the foregoing developments.

Next, however, it must be remembered that the right, while

sacrosanct, is not absolute. In Primicias, this Court said:

Petitioners standing cannot be seriously challenged. Their

right as citizens to engage in peaceful assembly and exercise
the right of petition, as guaranteed by the Constitution, is
directly affected by B.P. No. 880 which requires a permit for all
who would publicly assemble in the nations streets and parks.
They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such
permit can be validly required without violating the
Constitutional guarantee. Respondents, on the other hand,
have challenged such action as contrary to law and dispersed
the public assemblies held without the permit.

The right to freedom of speech, and to peacefully assemble

and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it
is a settled principle growing out of the nature of well-ordered
civil societies that the exercise of those rights is not absolute
for it may be so regulated that it shall not be injurious to the
equal enjoyment of others having equal rights, nor injurious to
the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed
the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. This
sovereign police power is exercised by the government
through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights, and it
may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies
called municipal and city councils to enact ordinances for the
purpose.18

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for
redress of grievances.
The first point to mark is that the right to peaceably assemble
and petition for redress of grievances is, together with freedom
of speech, of expression, and of the press, a right that enjoys
primacy in the realm of constitutional protection. For these
rights constitute the very basis of a functional democratic
polity, without which all the other rights would be meaningless
and unprotected. As stated in Jacinto v. CA,15 the Court, as
early as the onset of this century, in U.S. v. Apurado,16 already
upheld the right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful
assembly to petition the government for a redress of
grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are
guaranteed by no less than the Constitution, particularly
Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX,
and Section 3 of Article XIII. Jurisprudence abounds with
hallowed pronouncements defending and promoting the
peoples exercise of these rights. As early as the onset of this
century, this Court in U.S. vs. Apurado, already upheld the
right to assembly and petition and even went as far as to
acknowledge:

Reyes v. Bagatsing19 further expounded on the right and its

limits, as follows:
1. It is thus clear that the Court is called upon to
protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the
denial of a permit. The Constitution is quite explicit:
"No law shall be passed abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble and petition the Government
for redress of grievances." Free speech, like free
press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern
without censorship or punishment. There is to be
then no previous restraint on the communication of
views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or
contempt proceedings unless there be a "clear and
present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably
for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much

less denied, except on a showing, as is the case

with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right
to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a
necessary consequence of our republican
institutions and complements the right of free
speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to
assemble and to petition the government for redress
of grievances. All these rights, while not identical,
are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the
effects of the challenged governmental actuation.
The sole justification for a limitation on the exercise
of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the
freedom of expression and peaceable assembly
better expressed than in this excerpt from an opinion
of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech
lay faith in the power of an appeal to reason by all
the peaceful means for gaining access to the mind.
It was in order to avert force and explosions due to
restrictions upon rational modes of communication
that the guaranty of free speech was given a
generous scope. But utterance in a context of
violence can lose its significance as an appeal to
reason and become part of an instrument of force.
Such utterance was not meant to be sheltered by
the Constitution." What was rightfully stressed is the
abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It
must always be remembered that this right likewise
provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if
contrary to the prevailing climate of opinion. For if
the peaceful means of communication cannot be
availed of, resort to non-peaceful means may be the
only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved
or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be
something worth hearing from the dissenter. That is
to ensure a true ferment of ideas. There are, of
course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate
disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution
frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and outbreaks
of violence to be avoided. The utmost calm though is
not required. As pointed out in an early Philippine
case, penned in 1907 to be precise, United States v.
Apurado: "It is rather to be expected that more or
less disorder will mark the public assembly of the
people to protest against grievances whether real or
imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and
the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their
irresponsible followers." It bears repeating that for
the constitutional right to be invoked, riotous
conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to ones

destructive urges is to call for condemnation. It is to

make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the
existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the
place where the peace rally would start. The
Philippines is committed to the view expressed in
the plurality opinion, of 1939 vintage, of Justice
Roberts in Hague v. CIO: "Whenever the title of
streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time
out of mind, have been used for purposes of
assembly, communicating thoughts between
citizens, and discussing public questions. Such use
of the streets and public places has, from ancient
times, been a part of the privileges, immunities,
rights and liberties of citizens. The privilege of a
citizen of the United States to use the streets and
parks for communication of views on national
questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in
subordination to the general comfort and
convenience, and in consonance with peace and
good order; but must not, in the guise of regulation,
be abridged or denied." The above excerpt was
quoted with approval in Primicias v. Fugoso.
Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man
and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was
made to such plaza "being a promenade for public
use," which certainly is not the only purpose that it
could serve. To repeat, there can be no valid reason
why a permit should not be granted for the proposed
march and rally starting from a public park that is the
Luneta.
4. Neither can there be any valid objection to the use
of the streets to the gates of the US embassy, hardly
two blocks away at the Roxas Boulevard. Primicias
v. Fugoso has resolved any lurking doubt on the
matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public
meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support
in the decision in the case of Willis Cox v. State of
New Hampshire, 312 U.S., 569. In that case, the
statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any
ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from
the selectmen of the town or from licensing
committee, was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing
board unfettered discretion to refuse to grant the
license, and held valid. And the Supreme Court of
the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that a statute requiring
persons using the public streets for a parade or
procession to procure a special license therefor from
the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is
construed by the state courts, the licensing
authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to
conserving the public convenience and of affording
an opportunity to provide proper policing, and are
not invested with arbitrary discretion to issue or
refuse license, * * *. "Nor should the point made by
Chief Justice Hughes in a subsequent portion of the
opinion be ignored: "Civil liberties, as guaranteed by

the Constitution, imply the existence of an organized

society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose
regulations in order to assure the safety and
convenience of the people in the use of public
highways has never been regarded as inconsistent
with civil liberties but rather as one of the means of
safeguarding the good order upon which they
ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the
use of highways in that relation is designed to
promote the public convenience in the interest of all,
it cannot be disregarded by the attempted exercise
of some civil right which in other circumstances
would be entitled to protection."

sanctifying phrase can, of course, dispense with

what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy.
x x x.
B.P. No. 880 was enacted after this Court rendered its decision
in Reyes.
The provisions of B.P. No. 880 practically codify the ruling
in Reyes:

xxx

Reyes v. Bagatsing

B.P. No. 880

6. x x x The principle under American doctrines was

given utterance by Chief Justice Hughes in these
words: "The question, if the rights of free speech
and peaceable assembly are to be preserved, is not
as to the auspices under which the meeting is held
but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the
bounds of the freedom of speech which the
Constitution protects." There could be danger to
public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the
licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a
permit would be granted. It is not, however,
unfettered discretion. While prudence requires that
there be a realistic appraisal not of what may
possibly occur but of what may probably occur,
given all the relevant circumstances, still the
assumption especially so where the assembly is
scheduled for a specific public place is that the
permit must be for the assembly being held there.
The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it may
be exercised in some other place."

(G.R. No. L-65366,

November 9, 1983,

Sec. 4. Permit when

required and when not
required.-- A written
permit shall be
required for any
person or persons to
organize and hold a
public assembly in a
public place. However,
no permit shall be
required if the public
assembly shall be
done or made in a
freedom park duly
established by law or
ordinance or in private
property, in which case
only the consent of the
owner or the one
entitled to its legal
possession is
required, or in the
campus of a
government-owned
and operated
educational institution
which shall be subject
to the rules and
regulations of said
educational institution.
Political meetings or
rallies held during any
election campaign
period as provided for
by law are not covered
by this Act.

xxx
8. By way of a summary. The applicants for a permit
to hold an assembly should inform the licensing
authority of the date, the public place where and the
time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to
its legal possession is required. Such application
should be filed well ahead in time to enable the
public official concerned to appraise whether there
may be valid objections to the grant of the permit or
to its grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present danger test
be the standard for the decision reached. If he is of
the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted
to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper
judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the
judiciary, -- even more so than on the other
departments rests the grave and delicate
responsibility of assuring respect for and deference
to such preferred rights. No verbal formula, no

125 SCRA 553, 569)

8. By way of a
summary. The
applicants for a permit
to hold an assembly
should inform the
licensing authority of
the date, the public
place where and the
time when it will take
place. If it were a
private place, only the
consent of the owner
or the one entitled to
its legal possession is
required. Such
application should be
filed well ahead in time
to enable the public
official concerned to
appraise whether
there may be valid
objections to the grant
of the permit or to its
grant but at another
public place. It is an
indispensable
condition to such
refusal or modification
that the clear and
present danger test be
the standard for the
decision reached. If he
is of the view that
there is such an
imminent and grave
danger of a
substantive evil, the
applicants must be
heard on the matter.
Thereafter, his
decision, whether
favorable or adverse,
must be transmitted to
them at the earliest
opportunity. Thus if so
minded, they can have
recourse to the proper
judicial authority.

Sec. 5. Application
requirements.-- All
applications for a
permit shall comply
with the following
guidelines:
(a) The
applications
shall be in
writing and
shall include
the names
of the
leaders or
organizers;
the purpose
of such

public
assembly;
the date,
time and
duration
thereof, and
place or
streets to be
used for the
intended
activity; and
the probable
number of
persons
participating,
the transport
and the
public
address
systems to
be used.
(b) The
application
shall
incorporate
the duty and
responsibilit
y of
applicant
under
Section 8
hereof.
(c) The
application
shall be filed
with the
office of the
mayor of the
city or
municipality
in whose
jurisdiction
the intended
activity is to
be held, at
least five (5)
working
days before
the
scheduled
public
assembly.
(d) Upon
receipt of
the
application,
which must
be duly
acknowledg
ed in writing,
the office of
the city or
municipal
mayor shall
cause the
same to
immediately
be posted at
a

conspicuous
place in the
city or
municipal
building.
Sec. 6. Action to be
taken on the
application.
(a) It shall
be the duty
of the mayor
or any
official
acting in his
behalf to
issue or
grant a
permit
unless there
is clear and
convincing
evidence
that the
public
assembly
will create a
clear and
present
danger to
public order,
public
safety,
public
convenience
, public
morals or
public
health.
(b) The
mayor or
any official
acting in his
behalf shall
act on the
application
within two
(2) working
days from
the date the
application
was filed,
failing
which, the
permit shall
be deemed
granted.
Should for
any reason
the mayor or
any official
acting in his
behalf
refuse to
accept the
application
for a permit,
said
application
shall be

posted by
the applicant
on the
premises of
the office of
the mayor
and shall be
deemed to
have been
filed.
(c) If the
mayor is of
the view that
there is
imminent
and grave
danger of a
substantive
evil
warranting
the denial or
modification
of the
permit, he
shall
immediately
inform the
applicant
who must be
heard on the
matter.
(d) The
action on
the permit
shall be in
writing and
served on
the
applica[nt]
within
twenty-four
hours.
(e) If the
mayor or
any official
acting in his
behalf
denies the
application
or modifies
the terms
thereof in
his permit,
the applicant
may contest
the decision
in an
appropriate
court of law.
(f) In case
suit is
brought
before the
Metropolitan
Trial Court,
the
Municipal
Trial Court,

the
Municipal
Circuit Trial
Court, the
Regional
Trial Court,
or the
Intermediate
Appellate
Court, its
decisions
may be
appealed to
the
appropriate
court within
forty-eight
(48) hours
after receipt
of the same.
No appeal
bond and
record on
appeal shall
be required.
A decision
granting
such permit
or modifying
it in terms
satisfactory
to the
applicant
shall be
immediately
executory.
(g) All cases
filed in court
under this
section shall
be decided
within
twenty-four
(24) hours
from date of
filing. Cases
filed
hereunder
shall be
immediately
endorsed to
the
executive
judge for
disposition
or, in his
absence, to
the next in
rank.
(h) In all
cases, any
decision
may be
appealed to
the
Supreme
Court.
(i)
Telegraphic

1. Everyone shall have the right to hold opinions

without interference.
appeals to
be followed
by formal
appeals are
hereby
allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute

ban of public assemblies but a restriction that simply regulates
the time, place and manner of the assemblies. This was
adverted to in Osmea v. Comelec,20 where the Court referred
to it as a "content-neutral" regulation of the time, place, and
manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows
that it refers to all kinds of public assemblies22 that would use
public places. The reference to "lawful cause" does not make it
content-based because assemblies really have to be for lawful
causes, otherwise they would not be "peaceable" and entitled
to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based,
since they can refer to any subject. The words "petitioning the
government for redress of grievances" come from the wording
of the Constitution, so its use cannot be avoided. Finally,
maximum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the expressions in
the rally.
Furthermore, the permit can only be denied on the ground of
clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a
recognized exception to the exercise of the right even under
the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and
association.
xxx
Article 29
1. Everyone has duties to the community in which
alone the free and full development of his
personality is possible.
2. In the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as
are determined by law solely for the purpose of
securing due recognition and respect for the rights
and freedoms of others and of meeting the just
requirements of morality, public order and the
general welfare in a democratic society.
3. These rights and freedoms may in no case be
exercised contrary to the purposes and principles of
the United Nations.
The International Covenant on Civil and Political Rights
Article 19.

2. Everyone shall have the right to freedom of

expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media
of his choice.
3. The exercise of the rights provided for in
paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:
(a) For respect of the rights or reputations
of others;
(b) For the protection of national security
or of public order (ordre public), or of
public health or morals.
Contrary to petitioners claim, the law is very clear and is
nowhere vague in its provisions. "Public" does not have to be
defined. Its ordinary meaning is well-known. Websters
Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a
group of people distinguished by common interests or
characteristics x x x.
Not every expression of opinion is a public assembly. The law
refers to "rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public
place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the
right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive
evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the
speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a
precise and sufficient standard the clear and present danger
test stated in Sec. 6(a). The reference to "imminent and grave
danger of a substantive evil" in Sec. 6(c) substantially means
the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently
under Republic Act No. 716024 is thus not necessary to resolve
in these proceedings, and was not pursued by the parties in
their arguments.
Finally, for those who cannot wait, Section 15 of the law
provides for an alternative forum through the creation of
freedom parks where no prior permit is needed for peaceful
assembly and petition at any time:
Sec. 15. Freedom parks. Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or
mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this

provision.
The Solicitor General stated during the oral arguments that, to
his knowledge, only Cebu City has declared a freedom park
Fuente Osmea.
That of Manila, the Sunken Gardens, has since been
converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880s
mandate that every city and municipality set aside a freedom
park within six months from its effectivity in 1985, or 20 years
ago, would be pathetic and regrettable. The matter appears to
have been taken for granted amidst the swell of freedom that
rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an
essential part of the laws system of regulation of the peoples
exercise of their right to peacefully assemble and petition, the
Court is constrained to rule that after thirty (30) days from the
finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied
with Section 15 of the law. For without such alternative forum,
to deny the permit would in effect be to deny the right.
Advance notices should, however, be given to the authorities
to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated
earlier, the Solicitor General has conceded that the use of the
term should now be discontinued, since it does not mean
anything other than the maximum tolerance policy set forth in
B.P. No. 880. This is stated in the Affidavit of respondent
Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of "calibrated
preemptive response" is in consonance with the legal definition
of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880,
which is the "highest degree of restraint that the military, police
and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately,
however, the phrase "maximum tolerance" has acquired a
different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of
mayhem and serious threats to public order. More so, other felt
that they need not bother secure a permit when holding rallies
thinking this would be "tolerated." Clearly, the popular
connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum
tolerance is provided under the same law which requires all
pubic assemblies to have a permit, which allows the dispersal
of rallies without a permit, and which recognizes certain
instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no
permit, no rally policy" or with the dispersal and use of water
cannons under certain circumstances for indeed, the maximum
amount of tolerance required is dependent on how peaceful or
unruly a mass action is. Our law enforcers should calibrate
their response based on the circumstances on the ground with
the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is
being enforced in lieu of maximum tolerance I clearly was not
referring to its legal definition but to the distorted and much
abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law
enforcers would shirk their responsibility of keeping the peace
even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter.
Thus I said, "we have instructed the PNP as well as the local

government units to strictly enforce a no permit, no rally

policy . . . arrest all persons violating the laws of the land . . .
unlawful mass actions will be dispersed." None of these is at
loggerheads with the letter and spirit of Batas Pambansa Blg.
880. It is thus absurd for complainants to even claim that I
ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum
tolerance mandated by B.P. No. 880, CPR serves no valid
purpose if it means the same thing as maximum tolerance and
is illegal if it means something else. Accordingly, what is to be
followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the
following:
Sec. 3. Definition of terms. For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint
that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of
the same.
xxx
Sec. 9. Non-interference by law enforcement authorities.
Law enforcement agencies shall not interfere with the holding
of a public assembly. However, to adequately ensure public
safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be
imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to
perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is
primordial.1avvphil.net Towards this end, law enforcement
agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who
deal with the demonstrators shall be in complete
uniform with their nameplates and units to which
they belong displayed prominently on the front and
dorsal parts of their uniform and must observe the
policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent
shall not carry any kind of firearms but may be
equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or
any similar anti-riot device shall not be used unless
the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction
of property.
Sec. 11. Dispersal of public assembly with permit. No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such
public assembly as follows:
(a) At the first sign of impending violence, the
ranking officer of the law enforcement contingent
shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible
disturbance;

(b) If actual violence starts to a point where rocks or

other harmful objects from the participants are
thrown at the police or at the non-participants, or at
any property causing damage to such property, the
ranking officer of the law enforcement contingent
shall audibly warn the participants that if the
disturbance persists, the public assembly will be
dispersed;
(c) If the violence or disturbance prevailing as stated
in the preceding subparagraph should not stop or
abate, the ranking officer of the law enforcement
contingent shall audibly issue a warning to the
participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant
shall also be made during the public assembly
unless he violates during the assembly a law,
statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of
the peace during the public assembly shall not
constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. When
the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully
dispersed.
Sec. 13. Prohibited acts. The following shall constitute
violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public
assembly;
(g) Acts described hereunder if committed within one hundred
(100) meters from the area of activity of the public assembly or
on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement
unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and
loud sound systems.

In sum, this Court reiterates its basic policy of upholding the

fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy
addresses, Chief Justice Artemio V. Panganiban has
repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty,
the scales of justice should weigh heavily against the
government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Indeed, laws
and actions that restrict fundamental rights come to the courts
with a heavy presumption against their validity. These laws
and actions are subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response
policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses
our people and is used by some police agents to justify
abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly
restrict freedoms; it merely regulates the use of public places
as to the time, place and manner of assemblies. Far from
being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of
the power to issue rally "permits" is valid because it is subject
to the constitutionally-sound "clear and present danger"
standard.
In this Decision, the Court goes even one step further in
safeguarding liberty by giving local governments a deadline of
30 days within which to designate specific freedom parks as
provided under B.P. No. 880. If, after that period, no such
parks are so identified in accordance with Section 15 of the
law, all public parks and plazas of the municipality or city
concerned shall in effect be deemed freedom parks; no prior
permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the
police and the mayors office to allow proper coordination and
orderly activities.
WHEREFORE, the petitions are GRANTED in part, and
respondents, more particularly the Secretary of the Interior and
Local Governments, are DIRECTED to take all necessary
steps for the immediate compliance with Section 15 of Batas
Pambansa No. 880 through the establishment or designation
of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the
finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right
to peaceably assemble and petition in the public parks or
plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive
Response (CPR), insofar as it would purport to differ from or
be in lieu of maximum tolerance, is NULL and VOID and
respondents are ENJOINED to REFRAIN from using it and
to STRICTLY OBSERVE the requirements of maximum
tolerance. The petitions are DISMISSED in all other respects,
and the constitutionality of Batas Pambansa No. 880
is SUSTAINED.
No costs.
SO ORDERED.

Furthermore, there is need to address the situation adverted to

by petitioners where mayors do not act on applications for a
permit and when the police demand a permit and the rallyists
could not produce one, the rally is immediately dispersed. In
such a situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the police an
application duly filed on a given date can, after two days from
said date, rally in accordance with their application without the
need to show a permit, the grant of the permit being then
presumed under the law, and it will be the burden of the
authorities to show that there has been a denial of the
application, in which case the rally may be peacefully
dispersed following the procedure of maximum tolerance
prescribed by the law.

The rally pushed through on June 22, 2006 at Mendiola

Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan
whose contingent from the Manila Police District (MPD) earlier
barred petitioners from proceeding thereto. Petitioners allege
that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal
action,8 docketed as I.S. No. 06I-12501, against Cadiz for
violating the Public Assembly Act in staging a rally at a venue
not indicated in the permit, to which charge Cadiz filed a
Counter-Affidavit of August 3, 2006.

G.R. No. 175241

February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by

its National President, Jose Anselmo I. Cadiz, H. HARRY L.
ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO"
ATIENZA, Respondent.

In the meantime, the appellate court ruled, in CA-G.R. SP No.

94949, by the first assailed issuance, that the petition became
moot and lacked merit. The appellate court also denied
petitioners motion for reconsideration by the second assailed
issuance.
Hence, the filing of the present petition for review on certiorari,
to which respondent filed his Comment of November 18, 2008
which merited petitioners Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding
that the modification of the venue in IBPs rally permit does not
constitute grave abuse of discretion.

DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers
H. Harry L. Roque and Joel R. Butuyan appeal the June 28,
2006 Decision2 and the October 26, 2006 Resolution3 of the
Court of Appeals that found no grave abuse of discretion on
the part of respondent Jose "Lito" Atienza, the then mayor of
Manila, in granting a permit to rally in a venue other than the
one applied for by the IBP.
On June 15, 2006, the IBP, through its then National President
Jose Anselmo Cadiz (Cadiz), filed with the Office of the City
Mayor of Manila a letter application4 for a permit to rally at the
foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to
5:30 p.m. to be participated in by IBP officers and members,
law students and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the
IBP to stage a rally on given date but indicated therein Plaza
Miranda as the venue, instead of Mendiola Bridge, which
permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court
of Appeals a petition for certiorari docketed as CA-G.R. SP No.
94949.6 The petition having been unresolved within 24 hours
from its filing, petitioners filed before this Court on June 22,
2006 a petition for certiorari docketed as G.R. No. 172951
which assailed the appellate courts inaction or refusal to
resolve the petition within the period provided under the Public
Assembly Act of 1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006
and November 20, 2006, respectively, denied the petition for
being moot and academic, denied the relief that the petition be
heard on the merits in view of the pendency of CA-G.R. SP
No. 94949, and denied the motion for reconsideration.

Petitioners assert that the partial grant of the application runs

contrary to the Pubic Assembly Act and violates their
constitutional right to freedom of expression and public
assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June
21, 2006 became moot upon the passing of the date of the
rally on June 22, 2006.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that
a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss
it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did
not hesitate to resolve the legal or constitutional issues raised
to formulate controlling principles to guide the bench, bar and
public. Moreover, as an exception to the rule on mootness,
courts will decide a question otherwise moot if it is capable of
repetition, yet evading review.9
In the present case, the question of the legality of a
modification of a permit to rally will arise each time the terms of
an intended rally are altered by the concerned official, yet it
evades review, owing to the limited time in processing the
application where the shortest allowable period is five days
prior to the assembly. The susceptibility of recurrence compels
the Court to definitively resolve the issue at hand.
Respecting petitioners argument that the issues presented in
CA-G.R. SP No. 94949 pose a prejudicial question to the
criminal case against Cadiz, the Court finds it improper to
resolve the same in the present case.
Under the Rules,10 the existence of a prejudicial question is a
ground in a petition to suspend proceedings in a criminal

action. Since suspension of the proceedings in the criminal

action may be made only upon petition and not at the instance
of the judge or the investigating prosecutor,11 the latter cannot
take cognizance of a claim of prejudicial question without a
petition to suspend being filed. Since a petition to suspend can
be filed only in the criminal action,12 the determination of the
pendency of a prejudicial question should be made at the first
instance in the criminal action, and not before this Court in an
appeal from the civil action.
In proceeding to resolve the petition on the merits, the
appellate court found no grave abuse of discretion on the part
of respondent because the Public Assembly Act does not
categorically require respondent to specify in writing the
imminent and grave danger of a substantive evil which
warrants the denial or modification of the permit and merely
mandates that the action taken shall be in writing and shall be
served on respondent within 24 hours. The appellate court
went on to hold that respondent is authorized to regulate the
exercise of the freedom of expression and of public assembly
which are not absolute, and that the challenged permit is
consistent with Plaza Mirandas designation as a freedom park
where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official
acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the
public assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall
act on the application within two (2) working days
from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said
application shall be posted by the applicant on the
premises of the office of the mayor and shall be
deemed to have been filed.
(c) If the mayor is of the view that there is imminent
and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be heard
on the matter.
(d) The action on the permit shall be in writing and
served on the application [sic] within twenty-four
hours.
(e) If the mayor or any official acting in his behalf
denies the application or modifies the terms thereof
in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan
Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the

Intermediate Appellate Court, its decisions may be

appealed to the appropriate court within forty-eight
(48) hours after receipt of the same. No appeal bond
and record on appeal shall be required. A decision
granting such permit or modifying it in terms
satisfactory to the applicant shall, be immediately
executory.
(g) All cases filed in court under this Section shall be
decided within twenty-four (24) hours from date of
filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in
his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal
appeals are hereby allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP)
v. Ermita,13 the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even
prior to the 1935 Constitution, Justice Malcolm had occasion to
stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the
majority of the American Supreme Court in Thomas v. Collins,
it was not by accident or coincidence that the rights to freedom
of speech and of the press were coupled in a single guarantee
with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public
interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public
Assembly Act of 1985 practically codified the 1983 ruling
in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the
Public Assembly Act with the pertinent portion of
the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether
there may be valid objections to the grant of the permit or to its
grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest

opportunity. Thus if so minded, they can have recourse to the

proper judicial authority.16 (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused
his discretion when he did not immediately inform the IBP who
should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to be
heard precedes the action on the permit, since the applicant
may directly go to court after an unfavorable action on the
permit.1avvphi1
Respondent failed to indicate how he had arrived at modifying
the terms of the permit against the standard of a clear and
present danger test which, it bears repeating, is an
indispensable condition to such modification. Nothing in the
issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would,
when granted imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is
not devoid of discretion in determining whether or not a permit
would be granted. It is not, however, unfettered discretion.
While prudence requires that there be a realistic appraisal not
of what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific

public place is that the permit must be for the assembly

being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it
may be exercised in some other place."17 (emphasis and
underscoring supplied)
Notably, respondent failed to indicate in his Comment any
basis or explanation for his action. It smacks of whim and
caprice for respondent to just impose a change of venue for an
assembly that was slated for a specific public place. It is thus
reversible error for the appellate court not to have found such
grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory
to the applicant."18
WHEREFORE, the assailed Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 94949 are REVERSED.
The Court DECLARES that respondent committed grave
abuse of discretion in modifying the rally permit issued on June
16, 2006 insofar as it altered the venue from Mendiola Bridge
to Plaza Miranda.
SO ORDERED.