G.R. No. 164349 January 31, 2006
(Underscoring
RADIO COMMUNICATIONS OF THE PHILIPPINES,
INC. (RCPI),Petitioner,
vs.
ALFONSO VERCHEZ, GRACE VERCHEZ-INFANTE,
MARDONIO INFANTE, ZENAIDA VERCHEZ-
CATIBOG, AND FORTUNATO
CATIBOG, Respondents.
DECISION
CARPIO MORALES, J.:
On January 21, 1991, Editha Hebron Verchez (Editha)
was confined at the Sorsogon Provincial Hospital due to
an ailment. On even date, her daughter Grace Verchez-
Infante (Grace) immediately hied to the Sorsogon
Branch of the Radio Communications of the Philippines,
Inc. (RCPI) whose services she engaged to send a
telegram to her sister Zenaida Verchez-Catibog
(Zenaida) who was residing at 18 Legal St., GSIS
Village, Quezon City1 reading: "Send check money
Mommy hospital." For RCPIs services, Grace
paid P10.502 for which she was issued a receipt.3
As three days after RCPI was engaged to send the
telegram to Zenaida no response was received from
her, Grace sent a letter to Zenaida, this time thru JRS
Delivery Service, reprimanding her for not sending any
financial aid.
Immediately after she received Graces letter, Zenaida,
along with her husband Fortunato Catibog, left on
January 26, 1991 for Sorsogon. On her arrival at
Sorsogon, she disclaimed having received any
telegram.
In the meantime, Zenaida and her husband, together
with her mother Editha left for Quezon City on January
28, 1991 and brought Editha to the Veterans Memorial
Hospital in Quezon City where she was confined from
January 30, 1991 to March 21, 1991.
The telegram was finally delivered to Zenaida 25 days
later or on February 15, 1991.4 On inquiry from RCPI
why it took that long to deliver it, a messenger of RCPI
replied that he had nothing to do with the delivery
thereof as it was another messenger who previously
was assigned to deliver the same but the address could
not be located, hence, the telegram was resent on
February 2, 1991, and the second messenger finally
found the address on February 15, 1991.
Edithas husband Alfonso Verchez (Verchez), by letter
of March 5, 1991,5 demanded an explanation from the
manager of the Service Quality Control Department of
the RCPI, Mrs. Lorna D. Fabian, who replied, by letter
of March 13, 1991,6 as follows:
Our investigation on this matter disclosed that subject
telegram was duly processed in accordance with our
standard operating procedure. However, delivery was
not immediately effected due to the occurrence of
circumstances which were beyond the control and
foresight of RCPI. Among others, during the
transmission process, the radio link connecting the
points of communication involved encountered radio
noise and interferences such that subject telegram did
not initially registered (sic) in the receiving teleprinter
machine.
Our internal message monitoring led to the discovery of
the above. Thus, a repeat transmission was made and
1|Page
subsequent delivery was effected.
supplied)
Verchezs lawyer thereupon wrote RCPIs manager
Fabian, by letter of July 23, 1991,7 requesting for a
conference on a specified date and time, but no
representative of RCPI showed up at said date and
time.
On April 17, 1992, Editha died.
On September 8, 1993, Verchez, along with his
daughters Grace and Zenaida and their respective
spouses, filed a complaint against RCPI before the
Regional Trial Court (RTC) of Sorsogon for damages. In
their complaint, the plaintiffs alleged that, inter alia, the
delay in delivering the telegram contributed to the early
demise of the late Editha to their damage and
prejudice,8 for which they prayed for the award of moral
and exemplary damages9 and attorneys fees.10
After its motion to dismiss the complaint for improper
venue11 was denied12 by Branch 5 of the RTC of
Sorsogon, RCPI filed its answer, alleging that except
with respect to Grace,13 the other plaintiffs had no privity
of contract with it; any delay in the sending of the
telegram was due to force majeure, "specifically, but not
limited to, radio noise and interferences which adversely
affected the transmission and/or reception of the
telegraphic message";14 the clause in the Telegram
Transmission Form signed by Grace absolved it from
liability for any damage arising from the transmission
other than the refund of telegram tolls;15 it observed due
diligence in the selection and supervision of its
employees; and at all events, any cause of action had
been barred by laches.16
The trial court, observing that "although the delayed
delivery of the questioned telegram was not apparently
the proximate cause of the death of Editha," ruled out
the presence of force majeure. Respecting the clause in
the telegram relied upon by RCPI, the trial court held
that it partakes of the nature of a contract of adhesion.
Finding that the nature of RCPIs business obligated it
to dispatch the telegram to the addressee at the earliest
possible time but that it did not in view of the negligence
of its employees to repair its radio transmitter and the
concomitant delay in delivering the telegram on time,
the trial court, upon the following provisions of the Civil
Code, to wit:
Article 2176 Whoever by act or omission causes
damage to another, there being at fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence if there is no pre-existing contractual relation
between the parties, is called quasi-delict and is
governed by the provisions of this Chapter.
Article 1173 defines the fault of (sic) negligence of the
obligor as the "omission of the diligence which is
required by the nature of the obligation and corresponds
with the circumstances of the person, of the time, or the
place."
In the instant case, the obligation of the defendant to
deliver the telegram to the addressee is of an urgent
nature. Its essence is the early delivery of the telegram
to the concerned person. Yet, due to the negligence of
its employees, the defendant failed to discharge of its
obligation on time making it liable for damages under
Article 2176.
The negligence on the part of the employees gives rise
to the presumption of negligence on the part of the
employer.17 (Underscoring supplied),
rendered judgment against RCPI. Accordingly, it
disposed:
WHEREFORE, in the light of the foregoing premises,
judgment is hereby rendered in favor of the plaintiffs
and against the defendant, to wit:
Ordering the defendant to pay the plaintiffs the following
amount:
1. The amount of One Hundred Thousand
(P100,000.00) Pesos as moral damages;
2. The amount of Twenty Thousand
(P20,000.00) Pesos as attorneys fees; and
3. To pay the costs.
SO ORDERED.18
On appeal, the Court of Appeals, by Decision of
February 27, 2004,19 affirmed the trial courts decision.
Hence, RCPIs present petition for review on certiorari,
it raising the following questions: (1) "Is the award of
moral damages proper even if the trial court found that
there was no direct connection between the injury and
the alleged negligent acts?"20 and (2) "Are the
stipulations in the Telegram Transmission Form, in the
nature "contracts of adhesion" (sic)?21
RCPI insists that respondents failed to prove any causal
connection between its delay in transmitting the
telegram and Edithas death.22
RCPIs stand fails. It bears noting that its liability is
anchored on culpa contractual or breach of contract
with regard to Grace, and on tort with regard to her co-
plaintiffs-herein-co-respondents.
Article 1170 of the Civil Code provides:
Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in
any manner contravene the tenor thereof, are liable for
damages. (Underscoring supplied)
Passing on this codal provision, this Court explained:
In culpa contractual x x x the mere proof of the
existence of the contract and the failure of its
compliance justify, prima facie, a corresponding right of
relief. The law, recognizing the obligatory force of
contracts, will not permit a party to be set free from
liability for any kind of misperformance of the
contractual undertaking or a contravention of the tenor
thereof. A breach upon the contract confers upon the
injured party a valid cause for recovering that which
may have been lost or suffered. The remedy serves to
preserve the interests of the promissee that may include
his "expectation interest," which is his interest in
having the benefit of his bargain by being put in as good
a position as he would have been in had the contract
been performed, or his "reliance interest," which is his
interest in being reimbursed for loss caused by reliance
on the contract by being put in as good a position as he
would have been in had the contract not been made; or
his "restitution interest," which is his interest in having
restored to him any benefit that he has conferred on the
other party. Indeed, agreements can accomplish little,
either for their makers or for society, unless they are
2|Page
made the basis for action. The effect of every infraction
is to create a new duty, that is, to make recompense to
the one who has been injured by the failure of another
to observe his contractual obligation unless he can
show extenuating circumstances, like proof of his
exercise of due diligence x x x or of the attendance
of fortuitous event, to excuse him from his ensuing
liability.23 (Emphasis and underscoring supplied)
In the case at bar, RCPI bound itself to deliver the
telegram within the shortest possible time. It took 25
days, however, for RCPI to deliver it.
RCPI invokes force majeure, specifically, the alleged
radio noise and interferences which adversely affected
the transmission and/or reception of the telegraphic
message. Additionally, its messenger claimed he could
not locate the address of Zenaida and it was only on the
third attempt that he was able to deliver the telegram.
For the defense of force majeure to prosper,
x x x it is necessary that one has
committed no negligence or misconduct that may have
occasioned the loss. An act of God cannot be invoked
to protect a person who has failed to take steps to
forestall the possible adverse consequences of such a
loss. Ones negligence may have concurred with an act
of God in producing damage and injury to another;
nonetheless, showing that the immediate or proximate
cause of the damage or injury was a fortuitous event
would not exempt one from liability. When the effect is
found to be partly the result of a persons
participation whether by active intervention,
neglect or failure to act the whole occurrence is
humanized and removed from the rules applicable
to acts of God.
xxxx
Article 1174 of the Civil Code states that no person shall
be responsible for a fortuitous event that could not be
foreseen or, though foreseen, was inevitable. In other
words, there must be an exclusion of human
intervention from the cause of injury or
loss.24 (Emphasis and underscoring supplied)
Assuming arguendo that fortuitous circumstances
prevented RCPI from delivering the telegram at the
soonest possible time, it should have at least informed
Grace of the non-transmission and the non-delivery so
that she could have taken steps to remedy the situation.
But it did not. There lies the fault or negligence.
In an earlier case also involving RCPI, this Court held:
Considering the public utility of RCPIs business and its
contractual obligation to transmit messages, it should
exercise due diligence to ascertain that messages are
delivered to the persons at the given address and
should provide a system whereby in cases of
undelivered messages the sender is given notice of
non-delivery. Messages sent by cable or wireless
means are usually more important and urgent than
those which can wait for the mail.25
xxxx
People depend on telecommunications companies
in times of deep emotional stress or pressing
financial needs. Knowing that messages about the
illnesses or deaths of loved ones, births or marriages in
a family, important business transactions, and notices of
conferences or meetings as in this case, are coursed
through the petitioner and similar corporations, it is
incumbent upon them to exercise a greater amount of
care and concern than that shown in this case. Every
reasonable effort to inform senders of the non-delivery
of messages should be undertaken.26
(Emphasis and underscoring supplied)
RCPI argues, however, against the presence of urgency
in the delivery of the telegram, as well as the basis for
the award of moral damages, thus:27
The request to send check as written in the telegraphic
text negates the existence of urgency that private
respondents allegations that time was of the essence
imports. A check drawn against a Manila Bank and
transmitted to Sorsogon, Sorsogon will have to be
deposited in a bank in Sorsogon and pass thru a
minimum clearing period of 5 days before it may be
encashed or withdrawn. If the transmittal of the
requested check to Sorsogon took 1 day private
respondents could therefore still wait for 6 days before
the same may be withdrawn. Requesting a check that
would take 6 days before it could be withdrawn
therefore contradicts plaintiffs claim of urgency or
need.28
At any rate, any sense of urgency of the situation was
met when Grace Verchez was able to communicate to
Manila via a letter that she sent to the same addressee
in Manila thru JRS.29
xxxx
As far as the respondent courts award for moral
damages is concerned, the same has no
basis whatsoever since private respondent Alfonso
Verchez did not accompany his late wife when the latter
went to Manila by bus. He stayed behind in Sorsogon
for almost 1 week before he proceeded to Manila. 30
When pressed on cross-examination, private
respondent Alfonso Verchez could not give any
plausible reason as to the reason why he did not
accompany his ailing wife to Manila.31
xxxx
It is also important to consider in resolving private
respondents claim for moral damages that
private respondent Grace Verchez did not accompany
her ailing mother to Manila.32
xxxx
It is the common reaction of a husband to be at his
ailing wifes side as much as possible. The fact that
private respondent Alfonso Verchez stayed behind in
Sorsogon for almost 1 week convincingly demonstrates
that he himself knew that his wife was not in critical
condition.33
(Emphasis and underscoring supplied)
RCPIs arguments fail. For it is its breach of contract
upon which its liability is, it bears repeating, anchored.
Since RCPI breached its contract, the presumption is
that it was at fault or negligent. It, however, failed to
rebut this presumption.
For breach of contract then, RCPI is liable to Grace for
damages.
And for quasi-delict, RCPI is liable to Graces co-
respondents following Article 2176 of the Civil Code
which provides:
3|Page
Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions
of this Chapter. (Underscoring supplied)
RCPIs liability as an employer could of course be
avoided if it could prove that it observed the diligence of
a good father of a family to prevent damage. Article
2180 of the Civil Code so provides:
The obligation imposed by Article 2176 is demandable
not only for ones own acts or omissions, but also for
those of persons for whom one is responsible.
xxxx
The owners and managers of an establishment or
enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage. (Underscoring supplied)
RCPI failed, however, to prove that it observed all the
diligence of a good father of a family to prevent
damage.
Respecting the assailed award of moral damages, a
determination of the presence of the following requisites
to justify the award is in order:
x x x firstly, evidence of besmirched reputation or
physical, mental or psychological suffering sustained by
the claimant; secondly, a culpable act or omission
factually established; thirdly, proof that the wrongful act
or omission of the defendant is the proximate cause of
damages sustained by the claimant; and fourthly, that
the case is predicated on any of the instances
expressed or envisioned by Article 2219 and Article
2220 of the Civil Code.34
Respecting the first requisite, evidence of suffering by
the plaintiffs-herein respondents was correctly
appreciated by the CA in this wise:
The failure of RCPI to deliver the telegram containing
the message of appellees on time, disturbed their filial
tranquillity. Family members blamed each other for
failing to respond swiftly to an emergency that involved
the life of the late Mrs. Verchez, who suffered from
diabetes.35
As reflected in the foregoing discussions, the second
and third requisites are present.
On the fourth requisite, Article 2220 of the Civil Code
provides:
Willful injury to property may be a legal ground for
awarding moral damages if the court should find that,
under the circumstances, such damages are justly
due. The same rule applies to breaches of
contract where the defendant acted fraudulently
or in bad faith. (Emphasis and underscoring supplied)
After RCPIs first attempt to deliver the telegram failed,
it did not inform Grace of the non-delivery thereof and
waited for 12 days before trying to deliver it again,
knowing as it should know that time is of the
essence in the delivery of telegrams. When its second
long-delayed attempt to deliver the telegram again
failed, it, again, waited for another 12 days before
making a third attempt. Such nonchalance in performing
its urgent obligation indicates gross negligence
amounting to bad faith. The fourth requisite is thus also
present.
In applying the above-quoted Article 2220, this Court
has awarded moral damages in cases of breach of
contract where the defendant was guilty of gross
negligence amounting to bad faith, or in wanton
disregard of his contractual obligation.36
As for RCPIs tort-based liability, Article 2219 of the Civil
Code provides:
Moral damages may be recovered in the following
and analogous cases:
xxxx
(10) Acts and actions referred to in Articles 21, 26, 27,
28, 29, 30, 32, 34, and 35. (Emphasis supplied)
Article 26 of the Civil Code, in turn, provides:
Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a
cause of action for damages, prevention, and other
relief:
xxxx
(2) Meddling with or disturbing the private life or family
relations of another. (Emphasis supplied)
RCPIs negligence in not promptly performing its
obligation undoubtedly disturbed the peace of mind not
only of Grace but also her co-respondents. As observed
by the appellate court, it disrupted the "filial tranquillity"
among them as they blamed each other "for failing to
respond swiftly to an emergency." The tortious acts
and/or omissions complained of in this case are,
therefore, analogous to acts mentioned under Article 26
of the Civil Code, which are among the instances of
quasi-delict when courts may award moral damages
under Article 2219 of the Civil Code.
In fine, the award to the plaintiffs-herein respondents of
moral damages is in order, as is the award of attorneys
fees, respondents having been compelled to litigate to
protect their rights.
Clutching at straws, RCPI insists that the limited liability
clause in the "Telegram Transmission Form" is not a
contract of adhesion. Thus it argues:
Neither can the Telegram Transmission Form be
considered a contract of adhesion as held by the
respondent court. The said stipulations were all written
in bold letters right in front of the Telegram
Transmission Form. As a matter of fact they were
beside the space where the telegram senders write their
telegraphic messages. It would have been different if
the stipulations were written at the back for surely there
4|Page
is no way the sender will easily notice them. The
fact that the stipulations were located in a particular
space where they can easily be seen, is sufficient notice
to any sender (like Grace Verchez-Infante) where she
could manifest her disapproval, leave the RCPI station
and avail of the services of the other telegram
operators.37 (Underscoring supplied)
RCPI misunderstands the nature of a contract of
adhesion. Neither the readability of the stipulations nor
their physical location in the contract determines
whether it is one of adhesion.
A contract of adhesion is defined as one in which one of
the parties imposes a ready-made form of contract,
which the other party may accept or reject, but which
the latter cannot modify. One party prepares the
stipulation in the contract, while the other party merely
affixes his signature or his "adhesion" thereto, giving
no room for negotiation and depriving the latter of
the opportunity to bargain on equal
footing.38 (Emphasis and underscoring supplied)
While a contract of adhesion is not necessarily void and
unenforceable, since it is construed strictly against the
party who drafted it or gave rise to any ambiguity
therein, it is stricken down as void and unenforceable or
subversive of public policy when the weaker party is
imposed upon in dealing with the dominant bargaining
party and is reduced to the alternative of taking it or
leaving it, completely deprived of the opportunity to
bargain on equal footing.39
This Court holds that the Court of Appeals finding that
the parties contract is one of adhesion which is void is,
given the facts and circumstances of the case, thus
well-taken.
WHEREFORE, the petition is DENIED, and the
challenged decision of the Court of Appeals
is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 179736 June 26, 2013
SPOUSES BILL AND VICTORIA HING, Petitioners,
vs.
ALEXANDER CHOACHUY, SR. and ALLAN
CHOACHUY, Respondents.
DECISION
DEL CASTILLO, J.:
"The concept of liberty would be emasculated if it does
not likewise compel respect for one's personality as a
unique individual whose claim to privacy and non-
interference demands respect."1
This Petition for Review on Certiorari2 under Rule 45 of
the Rules of Court assails the July 10, 2007
Decision3 and the September 11, 2007 Resolution4 of
the Court of Appeals (CA) in CA-G.R. CEB-SP No.
01473.
Factual Antecedents
On August 23, 2005, petitioner-spouses Bill and Victoria
Hing filed with the Regional Trial Court (RTC) of
Mandaue City a Complaint5 for Injunction and Damages
with prayer for issuance of a Writ of Preliminary
Mandatory Injunction/Temporary Restraining Order
(TRO), docketed as Civil Case MAN-5223 and raffled to
Branch 28, against respondents Alexander Choachuy,
Sr. and Allan Choachuy.
Petitioners alleged that they are the registered owners
of a parcel of land (Lot 1900-B) covered by Transfer
Certificate of Title (TCT) No. 42817 situated in
Barangay Basak, City of Mandaue, Cebu;6 that
respondents are the owners of Aldo Development &
Resources, Inc. (Aldo) located at Lots 1901 and 1900-
C, adjacent to the property of petitioners;7 that
respondents constructed an auto-repair shop building
(Aldo Goodyear Servitec) on Lot 1900-C; that in April
2005, Aldo filed a case against petitioners for Injunction
and Damages with Writ of Preliminary Injunction/TRO,
docketed as Civil Case No. MAN-5125;8 that in that
case, Aldo claimed that petitioners were constructing a
fence without a valid permit and that the said
construction would destroy the wall of its building, which
is adjacent to petitioners property;9 that the court, in
that case, denied Aldos application for preliminary
injunction for failure to substantiate its
allegations;10 that, in order to get evidence to support
the said case, respondents on June 13, 2005 illegally
set-up and installed on the building of Aldo Goodyear
Servitec two video surveillance cameras facing
petitioners property;11 that respondents, through their
employees and without the consent of petitioners, also
took pictures of petitioners on-going construction;12 and
that the acts of respondents violate petitioners right to
privacy.13 Thus, petitioners prayed that respondents be
ordered to remove the video surveillance cameras and
enjoined from conducting illegal surveillance.14
In their Answer with Counterclaim,15 respondents
claimed that they did not install the video surveillance
cameras,16nor did they order their employees to take
pictures of petitioners construction.17 They also clarified
that they are not the owners of Aldo but are mere
stockholders.18
Ruling of the Regional Trial Court
On October 18, 2005, the RTC issued an
Order19 granting the application for a TRO. The
dispositive portion of the said Order reads:
WHEREFORE, the application for a Temporary
Restraining Order or a Writ of Preliminary Injunction is
granted. Upon the filing and approval of a bond by
petitioners, which the Court sets at 50,000.00, let a
Writ of Preliminary Injunction issue against the
respondents Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately
remove the revolving camera that they installed at the
left side of their building overlooking the side of
petitioners lot and to transfer and operate it elsewhere
at the back where petitioners property can no longer be
viewed within a distance of about 2-3 meters from the
left corner of Aldo Servitec, facing the road.
IT IS SO ORDERED.20
Respondents moved for a reconsideration21 but the
RTC denied the same in its Order22 dated February 6,
2006.23Thus:
WHEREFORE, the Motion for Reconsideration is
hereby DENIED for lack of merit. Issue a Writ of
Preliminary Injunction in consonance with the Order
dated 18 October 2005.
IT IS SO ORDERED. 24
5|Page
Aggrieved, respondents filed with the CA a Petition for
Certiorari25 under Rule 65 of the Rules of Court with
application for a TRO and/or Writ of Preliminary
Injunction.
Ruling of the Court of Appeals
On July 10, 2007, the CA issued its Decision26 granting
the Petition for Certiorari. The CA ruled that the Writ of
Preliminary Injunction was issued with grave abuse of
discretion because petitioners failed to show a clear and
unmistakable right to an injunctive writ.27 The CA
explained that the right to privacy of residence under
Article 26(1) of the Civil Code was not violated since the
property subject of the controversy is not used as a
residence.28 The CA alsosaid that since respondents
are not the owners of the building, they could not have
installed video surveillance cameras.29 They are mere
stockholders of Aldo, which has a separate juridical
personality.30 Thus, they are not the proper
parties.31 The fallo reads:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us GRANTING the
petition filed in this case. The assailed orders dated
October 18, 2005 and February 6, 2006 issued by the
respondent judge are hereby ANNULLED and SET
ASIDE.
SO ORDERED.32
Issues
Hence, this recourse by petitioners arguing that:
I.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT ANNULLED AND SET ASIDE THE ORDERS
OF THE RTC DATED 18 OCTOBER 2005 AND 6
FEBRUARY 2006 HOLDING THAT THEY WERE
ISSUED WITH GRAVE ABUSE OF DISCRETION.
II.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT PETITIONER SPOUSES
HING ARE NOT ENTITLED TO THE WRIT OF
PRELIMINARY INJUNCTION ON THE GROUND THAT
THERE IS NO VIOLATION OF THEIR
CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY
DESPITE THE FACTUAL FINDINGS OF THE RTC,
WHICH RESPONDENTS CHOACHUY FAILED TO
REFUTE, THAT THE ILLEGALLY INSTALLED
SURVEILLANCE CAMERAS OF RESPONDENTS
CHOACH[U]Y WOULD CAPTURE THE PRIVATE
ACTIVITIES OF PETITIONER SPOUSES HING, THEIR
CHILDREN AND EMPLOYEES.
III.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT SINCE THE OWNER OF THE
BUILDING IS ALDO DEVELOPMENT AND
RESOURCES, INC. THEN TO SUE RESPONDENTS
CHOACHUY CONSTITUTES A PURPORTEDLY
UNWARRANTED PIERCING OF THE CORPORATE
VEIL.
IV.
THE X X X CA COMMITTED A REVERSIBLE ERROR
WHEN IT IGNORED THE SERIOUS FORMAL
DEFICIENCIES OF BOTH THE PETITION AND THE
MOTION FOR RECONSIDERATION DATED 15
MARCH 2006 OF RESPONDENTS CHOACHUY AND
GAVE X X X THEM DUE COURSE AND
CONSIDERATION.33
Essentially, the issues boil down to (1) whether there is
a violation of petitioners right to privacy, and (2)
whether respondents are the proper parties to this suit.
Petitioners Arguments
Petitioners insist that they are entitled to the issuance of
a Writ of Preliminary Injunction because respondents
installation of a stationary camera directly facing
petitioners property and a revolving camera covering a
significant portion of the same property constitutes a
violation of petitioners right to privacy.34 Petitioners cite
Article 26(1) of the Civil Code, which enjoins persons
from prying into the private lives of others.35 Although
the said provision pertains to the privacy of anothers
residence, petitioners opine that it includes business
offices, citing Professor Arturo M. Tolentino.36 Thus,
even assuming arguendo that petitioners property is
used for business, it is still covered by the said
provision.37
As to whether respondents are the proper parties to
implead in this case, petitioners claim that respondents
and Aldo are one and the same, and that respondents
only want to hide behind Aldos corporate fiction.38 They
point out that if respondents are not the real owners of
the building, where the video surveillance cameras were
installed, then they had no business consenting to the
ocular inspection conducted by the court.39
Respondents Arguments
Respondents, on the other hand, echo the ruling of the
CA that petitioners cannot invoke their right to privacy
since the property involved is not used as a
residence.40 Respondents maintain that they had
nothing to do with the installation of the video
surveillance cameras as these were installed by Aldo,
the registered owner of the building,41as additional
security for its building.42 Hence, they were wrongfully
impleaded in this case.43
Our Ruling
The Petition is meritorious.
The right to privacy is the right to be let alone.
The right to privacy is enshrined in our
Constitution44 and in our laws. It is defined as "the right
to be free from unwarranted exploitation of ones person
or from intrusion into ones private activities in such a
way as to cause humiliation to a persons ordinary
sensibilities."45 It is the right of an individual "to be free
from unwarranted publicity, or to live without
unwarranted interference by the public in matters in
which the public is not necessarily concerned."46 Simply
put, the right to privacy is "the right to be let alone."47
The Bill of Rights guarantees the peoples right to
privacy and protects them against the States abuse of
power. In this regard, the State recognizes the right of
the people to be secure in their houses. No one, not
even the State, except "in case of overriding social
need and then only under the stringent procedural
safeguards," can disturb them in the privacy of their
homes.48
The right to privacy under Article 26(1)
of the Civil Code covers business offices
6|Page
where the public are excluded
therefrom and only certain individuals
are allowed to enter.
Article 26(1) of the Civil Code, on the other hand,
protects an individuals right to privacy and provides a
legal remedy against abuses that may be committed
against him by other individuals. It states:
Art. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and
other relief:
(1) Prying into the privacy of anothers residence;
xxxx
This provision recognizes that a mans house is his
castle, where his right to privacy cannot be denied or
even restricted by others. It includes "any act of
intrusion into, peeping or peering inquisitively into the
residence of another without the consent of the
latter."49 The phrase "prying into the privacy of anothers
residence," however, does not mean that only the
residence is entitled to privacy. As elucidated by Civil
law expert Arturo M. Tolentino:
Our Code specifically mentions "prying into the privacy
of anothers residence." This does not mean, however,
that only the residence is entitled to privacy, because
the law covers also "similar acts." A business office is
entitled to the same privacy when the public is excluded
therefrom and only such individuals as are allowed to
enter may come in. x x x50 (Emphasis supplied)
Thus, an individuals right to privacy under Article 26(1)
of the Civil Code should not be confined to his house or
residence as it may extend to places where he has the
right to exclude the public or deny them access. The
phrase "prying into the privacy of anothers residence,"
therefore, covers places, locations, or even situations
which an individual considers as private. And as long as
his right is recognized by society, other individuals may
not infringe on his right to privacy. The CA, therefore,
erred in limiting the application of Article 26(1) of the
Civil Code only to residences.
The "reasonable expectation of
privacy" test is used to determine
whether there is a violation of the right
to privacy.
In ascertaining whether there is a violation of the right to
privacy, courts use the "reasonable expectation of
privacy" test. This test determines whether a person
has a reasonable expectation of privacy and whether
the expectation has been violated.51 In Ople v.
Torres,52 we enunciated that "the reasonableness of a
persons expectation of privacy depends on a two-part
test: (1) whether, by his conduct, the individual has
exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as
reasonable." Customs, community norms, and practices
may, therefore, limit or extend an individuals
"reasonable expectation of privacy."53 Hence, the
reasonableness of a persons expectation of privacy
must be determined on a case-to-case basis since it
depends on the factual circumstances surrounding the
case.54
In this day and age, video surveillance cameras are
installed practically everywhere for the protection and
safety of everyone. The installation of these cameras,
however, should not cover places where there is
reasonable expectation of privacy, unless the consent
of the individual, whose right to privacy would be
affected, was obtained. Nor should these cameras be
used to pry into the privacy of anothers residence or
business office as it would be no different from
eavesdropping, which is a crime under Republic Act No.
4200 or the Anti-Wiretapping Law.
In this case, the RTC, in granting the application for
Preliminary Injunction, ruled that:
After careful consideration, there is basis to grant the
application for a temporary restraining order. The
operation by respondents of a revolving camera, even if
it were mounted on their building, violated the right of
privacy of petitioners, who are the owners of the
adjacent lot. The camera does not only focus on
respondents property or the roof of the factory at the
back (Aldo Development and Resources, Inc.) but it
actually spans through a good portion of the land of
petitioners.
Based on the ocular inspection, the Court understands
why petitioner Hing was so unyielding in asserting that
the revolving camera was set up deliberately to monitor
the on[-]going construction in his property. The monitor
showed only a portion of the roof of the factory of Aldo.
If the purpose of respondents in setting up a camera at
the back is to secure the building and factory premises,
then the camera should revolve only towards their
properties at the back. Respondents camera cannot be
made to extend the view to petitioners lot. To allow the
respondents to do that over the objection of the
petitioners would violate the right of petitioners as
property owners. "The owner of a thing cannot make
use thereof in such a manner as to injure the rights of a
third person."55
The RTC, thus, considered that petitioners have a
"reasonable expectation of privacy" in their property,
whether they use it as a business office or as a
residence and that the installation of video surveillance
cameras directly facing petitioners property or covering
a significant portion thereof, without their consent, is a
clear violation of their right to privacy. As we see then,
the issuance of a preliminary injunction was justified.
We need not belabor that the issuance of a preliminary
injunction is discretionary on the part of the court taking
cognizance of the case and should not be interfered
with, unless there is grave abuse of discretion
committed by the court.56 Here, there is no indication of
any grave abuse of discretion. Hence, the CA erred in
finding that petitioners are not entitled to an injunctive
writ.
This brings us to the next question: whether
respondents are the proper parties to this suit.
A real party defendant is one who has a
correlative legal obligation to redress a
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.
Section 2, Rule 3 of the Rules of Court provides:
SEC. 2. Parties-in-interest. A real party-in-interest is
the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these
7|Page
Rules, every action must be prosecuted or defended in
the name of the real party-in-interest.
A real party defendant is "one who has a correlative
legal obligation to redress a wrong done to the plaintiff
by reason of the defendants act or omission which had
violated the legal right of the former."57
In ruling that respondents are not the proper parties, the
CA reasoned that since they do not own the building,
they could not have installed the video surveillance
cameras.58 Such reasoning, however, is erroneous. The
fact that respondents are not the registered owners of
the building does not automatically mean that they did
not cause the installation of the video surveillance
cameras.
In their Complaint, petitioners claimed that respondents
installed the video surveillance cameras in order to fish
for evidence, which could be used against petitioners in
another case.59 During the hearing of the application for
Preliminary Injunction, petitioner Bill testified that when
respondents installed the video surveillance cameras,
he immediately broached his concerns but they did not
seem to care,60 and thus, he reported the matter to the
barangay for mediation, and eventually, filed a
Complaint against respondents before the RTC.61 He
also admitted that as early as 1998 there has already
been a dispute between his family and the Choachuy
family concerning the boundaries of their respective
properties.62 With these factual circumstances in mind,
we believe that respondents are the proper parties to be
impleaded.
Moreover, although Aldo has a juridical personality
separate and distinct from its stockholders, records
show that it is a family-owned corporation managed by
the Choachuy family.63
Also quite telling is the fact that respondents,
notwithstanding their claim that they are not owners of
the building, allowed the court to enter the compound of
Aldo and conduct an ocular inspection. The counsel for
respondents even toured Judge Marilyn Lagura-Yap
inside the building and answered all her questions
regarding the set-up and installation of the video
surveillance cameras.64 And when respondents moved
for reconsideration of the Order dated October 18, 2005
of the RTC, one of the arguments they raised is that
Aldo would suffer damages if the video surveillance
cameras are removed and transferred.65 Noticeably, in
these instances, the personalities of respondents and
Aldo seem to merge.
All these taken together lead us to the inevitable
conclusion that respondents are merely using the
corporate fiction of Aldo as a shield to protect
themselves from this suit. In view of the foregoing, we
find that respondents are the proper parties to this suit.
WHEREFORE, the Petition is hereby GRANTED. The
Decision dated July 10, 2007 and the Resolution dated
September 11, 2007 of the Court of Appeals in CA-G.R.
CEB-SP No. 01473 are hereby REVERSED and SET
ASIDE. The Orders dated October 18,2005 and
February 6, 200[6] of Branch 28 of the Regional Trial
Court of Mandaue City in Civil Case No. MAN-5223 are
hereby REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. L-54598 April 15, 1988
JOSE B. LEDESMA, petitioner,
vs.
HON. COURT OF APPEALS, Spouses PACIFICO
DELMO and SANCHA DELMO (as private
respondents), respondents.
The Solicitor General for petitioner.
Luzel D. Demasu-ay for respondent.
GUTIERREZ, JR., J.:
This petition seeks to reverse the decision of the respondent Court of Appeals
which afirmed the decision of the Court of First Instance of Iloilo, adjudging the
petitioner, who was then the President of the West Visayas College liable for
damages under Article 27 of the Civil Code of the Philippines for failure to
graduate a student with honors.
The facts are not disputed.
An organization named Student Leadership Club was
formed by some students of the West Visayas College.
They elected the late Violets Delmo as the treasurer. In
that capacity, Delmo extended loans from the funds of
the club to some of the students of the school. "the
petitioner claims that the said act of extending loans
was against school rules and regulations. Thus, the
petitioner, as President of the School, sent a letter to
Delmo informing her that she was being dropped from
the membership of the club and that she would not be a
candidate for any award or citation from the school.
Delmo asked for a reconsideration of the decision but
the petitioner denied it. Delmo, thus, appealed to the
Office of the Director of the Bureau of Public Schools.
The Director after due investigation, rendered a decison
on April 13, 1966 which provided:
Records of the preliminary investigation
conducted by one of the legal officers of
this Office disclosed the following: That
Violeta Delmo was the treasurer of the
Student Leadership Club, an exclusive
student organization; that pursuant to
Article IX of the of the Constitution and
By-Laws of the club, it passed
Resolution No. 2, authorizing the
treasurer to disburse funds of the Club
to student for financial aid and other
humanitarian purposes; that in
compliance with said resolution and as
treasurer of the Club, Violeta Delmo
extended loans to some officers and
members of the Club upon proper
application duly approved by the
majority of the members of the
Executive Board; and that upon
receiving the report from Mr. Jesse
Dagoon, adviser of the funds of the
Club, that Office conducted an
investigation on the matter and having
been convinced of the guilt of Violets
Delmo and the other officers and
members of the Club, that Office
rendered the order or decision in
question. In justifying that Office's order
or decision, it is contended that approval
by that Office of the Constitution and By-
Laws of the Club is necessary for its
effectivity and validity and since it was
never submitted to that Office, the Club
had no valid constitution and By-Laws
and that as a consequence, Resolution
No. 2 which was passed based on the
Constitution and By-Laws- is without
any force and effect and the treasurer,
8|Page
Violeta Delmo, who extended loans to
some officers and members of the Club
pursuant thereto are illegal (sic), hence,
she and the other students involved are
deemed guilty of misappropriating the
funds of the Club. On the other hand,
Raclito Castaneda, Nestor Golez and
Violeta Delmo, President, Secretary and
Treasurer of the Club, respectively,
testified that the Club had adopted its
Constitution and By-Laws in a meeting
held last October 3, 1965, and that
pursuant to Article I of said Constitution
and By-Laws, the majority of the
members of the Executive Board
passed Resolution No. 2, which
resolution became the basis for the
extension on of loans to some officers
and members of the Club, that the Club
honestly believed that its Constitution
and By-Laws has been approved by the
superintendent because the adviser of
the Club, Mr. Jesse Dagoon, assured
the President of the Club that he will
cause the approval of the Constitution
and By-Laws by the Superintendent; the
officers of the Club have been inducted
to office on October 9,1965 by the
Superintendent and that the Club had
been likewise allowed to cosponsor the
Education Week Celebration.
After a careful study of the records, this
Office sustains the action taken by the
Superintendent in penalizing the adviser
of the Club as well as the officers and
members thereof by dropping them from
membership therein. However, this
Office is convinced that Violets M.
Delmo had acted in good faith, in her
capacity as Club Treasurer, in extending
loans to the officers and members of the
Student partnership Club. Resolution
No. 2 authorizing the Club treasurer to
discharge finds to students in need of
financial assistance and other
humanitarian purposes had been
approved by the Club adviser, Mr. Jesse
Dagoon, with the notation that approval
was given in his capacity as adviser of
the Club and extension of the
Superintendent's personality. Aside from
misleading the officers and members of
the Club, Mr. Dagoon, had
unsatisfactorily explained why he failed
to give the Constitution and By-Laws of
the Club to the Superintendent for
approval despite his assurance to the
Club president that he would do so. With
this finding of negligence on the part of
the Club adviser, not to mention laxity in
the performance of his duties as such,
this Office considers as too severe and
unwarranted that portion of the
questioned order stating that Violeta
Delmo "shall not be a candidate for any
award or citation from this school or any
organization in this school." Violeta
Delmo, it is noted, has been a
consistent full scholar of the school and
she alone has maintained her
scholarship. The decision in question
would, therefore, set at naught all her
sacrifice and frustrate her dreams of
graduating with honors in this year's
commencement exercises.
 In view of all the foregoing, this Office
believes and so holds and hereby
directs that appellant Violeta. M. Delmo,
and for that matter all other Club
members or officers involved in this
case, be not deprived of any award,
citation or honor from the school, if they
are otherwise entitled thereto. (Rollo,
pp. 28-30)
On April 27, 1966, the petitioner received by mail the
decision of the Director and all the records of the case.
On the same day, petitioner received a telegram stating
the following:
"AIRMAIL RECORDS DELMO CASE
MISSENT THAT OFFICE"
The Director asked for the return only of the records but
the petitioner allegedly mistook the telegram as ordering
him to also send the decision back. On the same day,
he returned by mail all the records plus the decision of
the Director to the Bureau of Public Schools.
The next day, the petitioner received another telegram
from the Director order him to furnish Delmo with a copy
of the decision. The petitioner, in turn, sent a night letter
to the Director informing the latter that he had sent the
decision back and that he had not retained a copy
thereof..
On May 3, 1966, the day of the graduation, the
petitioner received another telegram from the Director
ordering him not to deprive Delmo of any honors due
her. As it was impossible by this time to include Delmo's
name in the program as one of the honor students, the
petitioner let her graduate as a plain student instead of
being awarded the Latin honor of Magna Cum Laude.
To delay the matter further, the petitioner on May 5,
1966, wrote the Director for a reconsideration of the
latters" decision because he believed that Delmo should
not be allowed to graduate with honors. The Director
denied the petitioner's request.
On July 12, 1966, the petitioner finally instructed the
Registrar of the school to enter into the scholastic
records of Delmo the honor, "Magna Cum Laude."
On July 30, 1966, Delmo, then a minor, was joined by
her parents in flag action for damages against the
petitioner. During the pendency of the action, however,
Delmo passed away, and thus, an Amended and
Supplemental Complaint was filed by her parents as her
sole and only heirs.
The trial court after hearing rendered judgment against
the petitioner and in favor of the spouses Delmo. The
court said:
Let us go to specific badges of the
defendants (now petitioners) bad faith.
Per investigation of Violeta Delmo's
appeal to Director Vitaliano Bernardino
of the Bureau of Public Schools (Exhibit
L it was the defendant who inducted the
officers of the Student Leadership Club
on October 9, 1965. In fact the Club was
allowed to cosponsor the Education
Week Celebration. (Exh. "L"). If the
defendant he not approve of the
constitution and by-laws of the Club,
why did he induct the officers into office
and allow the Club to sponsor the
Education Week Celebration"? It was
9|Page
through his own act that the students
were misled to do as they did. Coupled
with the defendants tacit recognition of
the Club was the assurance of Mr.
Jemm Dagoon, Club Adviser, who made
the students believe that he was acting
as an extension of Mr. Ledesma's
personality. (Exhibit "L").
Another badge of the defendan'ts want
of good faith is the fact that, although,
he kaew as early as April 27,1966 that
per on of r Bernardino, Exhibit "L," he
was directed to give honors to Miss
Delmo, he kept Id information to . He
told the Court that he knew that the
letter of Director Bernardino directed
him not to deprive Miss Delmo the
honors due her, but she (sic) says that
he has not finished reading the letter-
decision, Exhibit "L," of Director
Bernardino 0, him to give honors to Miss
Delmo. (Tsn, Feb. 5, 1974, testimony of
Mr. Ledesma, pp. .33-35). It could not
be true that he has not finished reading
the letter-decision, Exh. "L," because
said letter consisted of only three pages,
and the portion which directed that Miss
Delmo "be not deprived of any award,
citation or honor from the school, if
otherwise entitled thereto is found at the
last paragraph of the same. How did he
know the last paragraph if he did not
read the letter.
Defendants actuations regarding Miss
Delmo's cam had been one of bias and
prejudice. When his action would favor
him, he was deliberate and aspect to the
utter prejudice and detriment of Miss
Delmo. Thus, although, as early as April
27, 1966, he knew of the exoneration of
Miss Delino by Director Bernardino, he
withheld the information from Miss
Delmo. This is eloquently dramatized by
Exh. "11" and Exh. "13" On April
29,1966, Director Bernardino cabled him
to furnish Violeta Delmo copy of the
Decision, Exh. "L," but instead of
informing Miss Delmo about the
decision, since he said he mailed back
the decision on April 28,1966, he sent a
night letter on April 29,1966, to Director
Bernardino, informing the latter that he
had returned the decision (Exh. "l3"),
together with the record. Why a night
letter when the matter was of utmost
urgency to the parties in the case,
because graduation day was only four
days ahead? An examination of the
telegrams sent by the defendant shows
that he had been sending ordinary
telegram and not night letters. (Exh. "5",
Exhibit "7"). At least, if the defendant
could not furnish a copy of the decision,
(Exh. "L"), to Miss Delmo, he should
have told her about it or that Miss
Delmo's honors and citation in the
commencement be announced or
indicated. But Mr. Ledesma is one who
cannot admit a mistake. Very
ungentlemanly this is home out by his
own testimony despite his knowledge
that his decision to deprive Miss Delmo
of honors due to her was overturned by
Director Bernardino, he on his wrong
belief. To quote the defendant,1
 believed that she did not deserve those
honors(Tsn Feb. 5, 1974, p.
43,Empasized supplied). Despite the
telegram of Director Bernardino which
the defendant received hours before the
commencement executory on May 3-
4,1966, he did not obey Director
Bernardino because he said in his
testimony that he would be
embarrassment . Tan Feb 5,1974, P.
46). Evidently, he knew only his
embarrassment and not that of r
Bernardino whose order was being
flagrantly and wantonly disregarded by
bim And certainly, not the least of Miss
Delmo's embarrassment. His acts speak
eloquently of ho bad faith and unjust of
mindwarped by his delicate sensitivity
for having been challenged by Miss
Delmo, a mere student.
xxx xxx xxx
Finally the defendant's behaviour
relative to Miss s case smacks of
contemptuous arrogance, oppression
and abuse of power. Come to think of it.
He refused to obey the directive of Be o
and instead, chose to feign ignorance of
it." (Reward on Appeal, p. 72-76).
The trial court awarded P20,000.00 to the estate of
Violeta Delmo and P10,000.00 to her parents for moral
damages; P5,000.00 for nominal damages to Violeta's
estate; exemplary damages of P10,000.00 and
P2,000.00 attorney's fees.
On appeal, the Court of Appeals affirmed the decision.
Hence, this petition.
The issues raised in this petition can be reduced to the
sole question of whether or not the respondent Court of
Appeals erred in affirming the trial court's finding that
petitioner is liable for damages under Article 27 of the
New Civil Code.
We find no reason why the findings of the trial and
appellate courts should be reversed. It cannot be
disputed that Violeta Delmo went through a painful
ordeal which was brought about by the petitioner's
neglect of duty and callousness. Thus, moral damages
are but proper. As we have affirmed in the case of
(Prudenciado v. Alliance Transport System, Inc., 148
SCRA 440, 448):
There is no argument that moral
damages include physical suffering,
mental anguish, fright, serious anxiety,
besmirched reputation, wounded
feelings, moral shock, social humiliation,
and similar injury. Though incapable of
pecuniary computation, moral damages
may be recovered if they are the
proximate result of defendant's wrongly
act or omission." (People v. Baylon, 129
SCRA 62 (1984).
The Solicitor-General tries to cover-up the petitioner's
deliberate omission to inform Miss Delmo by stating that
it was not the duty of the petitioner to furnish her a copy
of the Director's decision. Granting this to be true, it was
nevertheless the petitioner's duty to enforce the said
decision. He could have done so considering that he
received the decision on April 27, 1966 and even
though he sent it back with the records of the case, he
undoubtedly read the whole of it which consisted of only
10 | P a g e
three pages. Moreover, the petitioner should have had
the decency to meet with Mr. Delmo, the girl's father,
and inform the latter, at the very least of the decision.
This, the petitioner likewise failed to do, and not without
the attendant bad faith which the appellate court
correctly pointed out in its decision, to wit:
Third, assuming that defendant could
not furnish Miss Delmo of a copy of the
decision, he could have used his
discretion and plain common sense by
informing her about it or he could have
directed the inclusion of Miss Delmo's
honor in the printed commencement
program or announced it during the
commencement exercises.
Fourth, defendant despite receipt of the
telegram of Director Benardino hours
before the commencement exercises on
May 3-4, 1966, disobeyed his superior
by refusing to give the honors due Miss
Delmo with a lame excuse that he would
be embarrassed if he did so, to the
prejudice of and in complete disregard
of Miss Delmo's rights.
Fifth, defendant did not even extend the
courtesy of meeting Mr. Pacifico Delmo,
father of Miss Delmo, who tried several
times to see defendant in his office thus
Mr. Delmo suffered extreme
disappointment and humiliation.
xxx xxx xxx
Defendant, being a public officer should
have acted with circumspection and due
regard to the rights of Miss Delmo.
Inasmuch as he exceeded the scope of
his authority by defiantly disobeying the
lawful directive of his superior, Director
Bernardino, defendant is liable for
damages in his personal capacity. . . .
(Rollo, pp- 57-58)
Based on the undisputed facts, exemplary damages are
also in order. In the same case of Prudenciado v.
Alliance Transport System, Inc., supra., at p. 450, we
ruled:
The rationale behind exemplary or
corrective damages is, as the name
implies, to provide an example or
correction for the public good (Lopez, et
al. v. Pan American World Airways, 16
SCRA 431).
However, we do not deem it appropriate
to award the spouses Delmo damages
in the amount of P10,000.00 in their
individual capacity, separately from and
in addition to what they are already
entitled to as sole heirs of the deceased
Violeta Delmo. Thus, the decision is
modified insofar as moral damages are
awarded to the spouses in their own
behalf.
WHEREFORE, the petition is DISMISSED for lack of
merit. The decision of the Court of Appeals is
AFFIRMED with the slight modification as stated in the
preceding paragraph. This decision is immediately
executory.
SO ORDERED.
G.R. No. L-46096 July 30, 1979
EUFEMIO T. CORREA, petitioner,
vs.
COURT OF FIRST INSTANCE OF BULACAN
(BRANCH 11), CITY SHERIFF OF QUEZON CITY,
MUNICIPALITY OF NORZAGARAY, BULACAN, HON.
ARMANDO ENRIQUEZ, as the Incumbent Mayor of
Norzagaray, Bulacan, CANDIDO P. CRUZ, ISABELO
SAPLALA, TOMAS PALAD, ANTONIO SILVERIO,
MELANIO ESTEBAN, ELIGIO PUNZAL, CELEDONIO
PRINCIPE, ANTONIO ANCHETA, and JUANITO
SARMIENTO, respondents.
Magtanggol C. Gunigundo for petitioner.
Ponciano G. Hernandez for private respondents.
ANTONIO, J.: 1wph1.t
Petition for certiorari, prohibition and declaratory relief
assailing the Order dated April 22, 1977 of respondent
Court of First Instance of Bulacan, Branch II, denying
petitioner's Motion to Quash Writ of Execution issued in
Civil Case No. 3621- M. The following are the relevant
facts:
On December 13, 1968, respondent Court rendered
judg- ment in Civil Case No. 3621-M in favor of therein
plaintiffs (private respondents herein) and adversely
against therein defendants Eufemio T. Correa
(petitioner herein) and Virgilio Sarmiento. The pertinent
portions of the decision read as follows: t.hqw
This Court finds that defendants
Eufemio T. Correa and Virgilio
Sarmiento, municipal mayor and
municipal treasurer of Norzagaray,
Bulacan respectively, should be ordered
personally to pay the salaries which the
plaintiffs failed to receive by reason of
their illegal removal from office until they
are actually reinstated.
xxx xxx xxx
WHEREFORE, judgment is hereby
rendered:
1. Permanently enjoining the defendants
from enforcing and/or implementing the
Administrative Order No. 1, Series of
1968;
2. Declaring the termination of the
services of the plaintiffs illegal and of no
legal effect;
3. Ordering the defendant Eufemio T.
Correa to reinstate the plaintiffs to their
former position as policemen in the
Police Force of Norzagaray, Bulacan;
4. Ordering the defendants Eufemio T.
Correa and Virgilio Sarmiento to pay,
jointly and severally to the plaintiff
Juanito Sarmiento his salary for the
period beginning January 15, 1968,
plaintiff Melanio Esteban his said for the
period beginning February 1, 1968; and
11 | P a g e
plaintiffs Candido Cruz, Isabelo Saplala,
Tomas Palad; Antonio Ancheta, Antonio
Silverio, Eligio Punzal and Celedonio
Principe their salaries for the period
beginning January 23, 1968, until they
are actually reinstated to their former
positions;
5. Ordering defendant Eufemio T.
Correa and Virgilio Sarmiento to pay,
jointly and severally, the costs of this
suit.
SO ORDERED.
The aforesaid decision was affirmed by the Court of
Appeals on March 22, 1976, and the motion for
reconsideration of the Appellate Court's decision was
denied on May 11, 1976. On August 24, 1976, the
decision of the Court of Appeals became final and
executory. 1
It is in connection with the efforts of the petitioner to
quash the writ of execution issued to enforce the
aforestated final judgment that the present proceedings
arose. Thus, on March 8, 1977, petitioner filed a Motion
to Quash the Writ of Execution and to Direct Execution
to the Municipality of Norzagaray, Bulacan, alleging that
at the time the writ was served on him, he was no
longer mayor of Norzagaray, Bulacan. Petitioner
invoked the principle that when judgment is rendered
against an officer of the municipal corporation who is
sued in his official capacity for the payment of back
salaries of officers illegally removed, the judgment is
binding upon the corporation, whether or not the same
is included as party to the action. 2
On April 22, 1977, respondent Court issued the Order
denying the Motion to Quash Writ of Execution.
Petitioner thus came to this Court, maintaining that he
could no longer be required to pay the back salaries of
the private respondents because payment on his part
presupposes his continuance in office, which is not the
case. He contends that it is the Municipality of
Norzagaray that is liable for said payment,
invoking Aguador v. Enerio. 3 and Sison v.
Pajo 4 Further, petitioner alleges that the fact that he is
no longer municipal mayor of Norzagaray, constitutes a
substantial change in the situation of the parties which
makes the issuance of the writ of execution inequitable.
Petitioner prays, among others, that judgment be
rendered declaring that the payment of back salaries of
private respondents should be made by the incumbent
mayor and by the municipality of Norzagaray, Bulacan,
and that petitioner is no longer liable for the payment
thereof; and annulling the Order dated April 22, 1977 of
respondent court denying the motion to quash the writ
of execution.
On May 24, 1977, this Court required petitioner to
implead the Municipality of Norzagaray, Bulacan as
party respondent and on June 25, 1977, petitioner filed
an amended petition impleading the Municipality of
Norzagaray and Amando Enriquez, the incumbent
municipal mayor.
In his amended petition, petitioner alleges that the writ
of execution is already being enforced against the
personal properties of petitioner; that such enforcement
during the pendency of the instant petition would
probably work injustice to petitioner; and that petitioner
stands to suffer great and irreparable injury if
enforcement of the writ is not temporarily restrained.
Petitioner, therefore, prays that the execution be stayed
or a temporary restraining order be issued pending
resolution of the instant proceedings.
On August 1, 1977, private respondents filed their
Comment maintaining that respondent court acted
correctly and committed no abuse of discretion when it
denied petitioner's motion to quash the writ of
execution, (1) it being the ministerial duty of the trial
court to issue a writ for the enforcement of a final and
executory judgment; and (2) since the personal liability
of the petitioner and his co-defendant to pay the back
salaries of the private respondents as mandated in the
decision sought to be executed cannot be shifted or
transferred to the municipality of Norzagaray, Bulacan,
for to do so would be to vary the terms of a final
judgment. On August 12, 1977, this Court resolved to
consider the Comment of respondents as answer to the
petition and required the parties to file their respective
memoranda, and thereafter the case was submitted for
decision.
The issue is whether or not respondent Court in denying
the Motion to Quash the Writ of Execution acted with
grave abuse of discretion or with lack or excess of
jurisdiction.
It cannot be denied that both the judgments of the Court
of First Instance of Bulacan and of the Court of Appeals
categorically state that the liability of herein petitioner is
personal. Thus, according to the trial court, "Eufemio T.
Correa and Virgilio Sarmiento, municipal mayor and
municipal treasurer of Norzagaray, Bulacan,
respectively, should be ordered personally to pay the
salaries which the plaintiffs failed to receive by reason
of their illegal removal from office until they are actually
reinstated." (Emphasis supplied).
In affirming the decision of the trial court, the Court of
Appeals 5 ruled that "The defendants
are personally liable jointly and severally because they
acted without justifiable cause (Nemenzo vs. Sabillano,
Sept. 7, 1968, 25 SCRA 1)." 6
The jurisprudence relied upon by the petitioner in his
effort to shift the responsibility to the Municipality of
Norzagaray appears inapplicable. In Aguador v. Enerio,
supra, cited by petitioner, the municipal mayor and the
members of the Municipal Council of Oroquieta were
specifically ordered "to appropriate necessary amounts
to pay the salary differentials for the petitioners and also
for the payment of their entire salaries from month to
month, subject naturally to the availability of funds after
all statutory and subsisting contractual obligations shall
have been properly covered by adequate
appropriations. " The issue raised was whether or not,
after the municipal mayor, members of the municipal
council and the municipal treasurer were expressly
made parties in the mandamus case and in the
contempt proceedings, it was necessary to include the
municipality as a party, to make the latter liable. This
issue was resolved in the negative by this Court. In the
case of Sison v. Pajo, supra, the trial court directed the
Acting Municipal Mayor and Acting Chief of Police of
Bamban, Tarlac to reinstate Bonifacio Lacanlale as
Acting Chief of Police, effective June 30, 1957 "with the
incident of payment of back salaries by the Municipality
of Bamban." The issue was whether or not the
municipality of Bamban could be ordered to pay the
back salaries of the Chief of Police, it appearing that
said municipality was not impleaded in the case. This
Court ruled that the fact that the Municipality of
Bamban, Tarlac was not by name impleaded in the
case of reinstatement and back salaries does not affect
the employee's right to the payment of back salaries,
considering that the officers required by law to
represent the municipality in an suits were made parties
12 | P a g e
in their official capacity, hence the case was heard and
decided as if the municipality had been made a party. In
both eases the judgment of the Court specifically
directed the municipality to pay the back salaries.
Here, the judgment of the trial court, which was affirmed
by the Court of Appeals, found petitioners Eufemio T.
Correa and Virgilio Sarmiento personally liable for the
payment of the salaries which the dismissed policemen
failed to receive because of their illegal removal from
office, and ordered them "to pay jointly and severally to
the plaintiff Juanito Sarmiento his salary for the period
beginning January 15, 1968; plaintiff Melanio Esteban
his salary for the period beginning February 1, 1968;
and plaintiffs Candido Cruz, Isabelo Saplala, Tomas
Palad, Antonio Ancheta, Antonio Silverio, Eligio Punzal
and Celedonio Principe their salaries for the period
beginning January 23, 1968, until they are actually
reinstated to their former positions."
In Nemenzo vs. Sabillano, 7 the Court ruled that
appellant Municipal Mayor Bernabe Sabillano was
"correctly adjudged liable" for the payment of the back
salaries of appellee Police Corporal Joaquin P.
Nemenzo because his act of dismissing appellee
"without previous administrative investigation and
without justifiable cause ... is clearly an injury to
appellee's rights. Appellant cannot hide under the
mantle of his official capacity and pass the liability to the
municipality of which he was mayor. There are
altogether too many cases of this nature, wherein local
elective officials, upon assumption of office, wield their
new-found power indiscriminately by replacing
employees with their own proteges, regardless of the
laws and regulations governing the civil service. Victory
at the polls should not be taken as authority for the
commission of such illegal acts."
In the discharge of govermental functions, "municipal
corporations are responsible for the acts of its officers,
except if and when and only to the extent that , they
have acted by authority of the law, and in comformity
with the requirements thereof." 8
A Public officer who commits a tort or other wrongful
act, done in excess or beyond the scope of his duty, is
not protected by his office and is personally liable
therefor lie any private individual. 9 This principle of
personal liability has been applied to cases where a
public officer removes another officer or discharges an
employee wrongfully, the reported cases saying that by
reason of non-compliance with the requirements of law
in respect to removal from office, the officials were
acting outside their official authority." 10
Respondent Court, therefore, did not commit grave
abuse of discretion in denying petitioner's motion to
quash writ of execution. The writ was strictly in
accordance with the terms of the judgment.
WHEREFORE, the instant petition is hereby
DISMISSED. Costs against petitioner.
[G.R. Nos. L-8830 & L-8837-39. May 11, 1956.]
BISAYA LAND TRANSPORTATION COMPANY,
INC., Petitioner, vs. HON. MANUEL M. MEJIA, ET
AL., Respondents.
DECISION
CONCEPCION, J.:
These are four petitions for a writ of certiorari, to annul
an order of Respondent, Hon. Manuel M. Mejia, as Judge
of First Instance of Cebu, dated February 22, 1955,
denying a motion of Petitionerherein, Bisaya Land
Transportation Co., Inc., as Defendant in civil cases Nos. R-
1768, R-1769, R-1775 and R-1776 of said court, for the
suspension of the trial of said cases until the rendition of
final judgment in criminal case No. V-3142 of the same
court. Upon the filing of the corresponding bond, we
issued a writ of preliminary injunction
directing Respondent judge to desist and refrain, until
further orders from this Court, from trying or hearing the
four civil cases already referred to.
It appears that on November 1, 1951, Tan Sims cargo
truck No. T- 17137, driven by Antonio Varga, and
passenger truck No. TPU-10284 of Petitioner Bisaya Land
Transportation Co., Inc., driven by Teofilo Mongaya,
collided with each other in the municipality of
Compostela, province of Cebu. As a consequence, the
passenger of the latter truck sustained physical injuries,
and some of them died. Hence, on January 17, 1952, the
provincial fiscal of Cebu commenced criminal case No. V-
3142 of the Court of First Instance of Cebu entitled
People vs. Antonio Varga and Teofilo Mongaya the
drivers of both trucks for multiple homicide with
serious, less serious and slight physical injuries, through
reckless imprudence. Moreover, the heirs of Jose Yap
Cabatingan, Jose Pestao, Cresencia Placencia and Lucas,
Maramara, some of the deceased passengers of the
Bisaya truck No. TPU-10284, instituted in said court, the
following civil cases, for damages allegedly sustained by
reason of the accident above mentioned: chanroble svirtuallawlibrary
1. Civil Case No. R-1768, entitled Angel Cabatingan, et al.
vs. Bisaya Land Transportation Co., Inc., Antonio Varga
and Tan Sim;
2. Civil Case No. R-1769, entitled Nely E. Pestao et al.
vs. Bisaya Land Transportation Co., Inc., Antonio Varga
and Tan Sim;
3. Civil Case No. R-1775, entitled Macaria Tolda de
Placencia et al. vs. Bisaya Land Transportation Co., Inc.,
Antonio Varga and Tan Sim; and
chan roblesvirtualawlibrary
4. Civil Case No. R-1776, entitled Teofila Misa, et al. vs.
Bisaya Land Transportation Co., Inc., Antonio Varga and
Tan Sim.
On or about February 17, 1955, Petitioner herein filed a
motion, in said four (4) civil cases, praying that the trial
thereof, which was scheduled to take place, jointly, on
February 22, 1955, before the Fifth Branch of the Court of
First Instance of Cebu, presided over
by Respondent Judge, be suspended until final disposition
of the aforementioned criminal case No. V-3142, the
hearing of which had already begun. This motion was
denied by an order of Respondent Judge dated February
22, 1955. On the same date, however, Respondent Judge
issued another order, postponing the hearing of said civil
cases to March 4, 1955, so that Petitioner may have an
opportunity to seek from this Court such relief as it may
deem fit. Hence, soon thereafter, Petitioner instituted the
cases at bar, for the purpose of annulling said order
denying the motion for suspension of the hearing of the
civil cases already adverted to.
Petitioner assails said order, upon the ground that it was
issued by Respondent Judge with abuse of discretion, and
without, or in excess of his, jurisdiction, as well as in
violation of Rule 107, section 1(c), of the Rules of Court
and of the doctrines laid down in the cases of Francisco
vs. Onrubia, 46 Phil., 327 and De Leon vs. Mabanag, 70
Phil., 202. However, said provision of the Rules of Court
13 | P a g e
and the decisions cited are not in point. Section 1(c) of
Rule 107 of the Rules of Court refers to civil actions
arising from the same offense charged in the criminal
action. Such was the civil action instituted by Francisco
against Onrubia, supra, who, while driving a car, hit a
pedestrian with whom he had no contractual relation
whatsoever), killing the latter. A judgment of acquittal
having been rendered in the corresponding criminal
action against Onrubia, for homicide through reckless
negligence, it followed that the civil action for damages,
based upon the crime allegedly committed by him, could
not prosper. Upon the other hand, the principle
enunciated in the De Leon case, supra, is, at best, adverse
to Petitioners contention, it having been held, in said
case, that a pending civil action, hinging upon the
genuineness or spurious nature of a given document, had
to be decided before a criminal action for alleged
falsification of said document be instituted.
Insofar as herein Petitioner is concerned, the complaints
in the civil cases aforementioned are specifically based
upon an alleged breach of the contractual relation
between said Petitioner, as owner and operator of truck
No. TPU-10284, and its passengers, Jose Cabatingan, Jose
Pestao, Cresencia Placencia and Lucas Maramara, which
relation is governed by Articles 1755 to 1763 of the Civil
Code of the Philippines, not by the Revised Penal Code,
and is, therefore, independent of the provisions of the
latter and of such criminal responsibility as may exist
thereunder. Indeed, Articles 31 and 33 of the Civil Code of
the Philippines explicitly provide: chanroblesvirtuallawlibrary
ART. 31. When the civil action is based on an obligation
not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the
criminal proceedings and regardless of the result of the
latter.
ART. 33. In cases of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the
injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
In view of these clear and positive legal precepts and in
line with the well established practice in this jurisdiction
(Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil., 359, 362-
365; Barredo vs. Garcia and Almario, 73 Phil., 607,
chan roblesvirtualawlibrary
611; Ramcar vs. De Leon, 44 Off. Gaz., 3795; Castro
chan roblesvirtualawlibrary chan roblesvirtualawlibrary
vs. Acro Taxicab Co., 46 Off. Gaz., 2023; San Pedro Bus chan roble svirtualawlibrary
Line vs. Navarro, 94 Phil., 846, decided on April 29, 1954; chan
Son vs. Cebu Autobus Co., 94 Phil., 892, decided April
roblesvirtualawlibrary
30, 1954; Ibaez et al. vs. North Negros Sugar Co., 96 chan roblesvirtualawlibrary
Phil., 980, decided March 28, 1955; Carandang vs. chan roblesvirtualawlibrary
Santiago, 97 Phil., 94, decided May 25, 1955), we hold
that, as regards Petitioner herein, the aforementioned
civil cases Nos. R-1768, R-1769, R-1775 and R-1776 may
proceed independently of said criminal case No. V-3142
and that, accordingly, His Honor, Respondent judge, did
not err in issuing the order complained of.
Wherefore, the petitions are dismissed and the writ of
preliminary injunction heretofore issued hereby dissolved
and set aside, with costs against the Petitioner. It is SO
ORDERED.
Pars, C.J., Bengzon, Padilla, Montemayor, Reyes, A.,
Jugo, Bautista Angelo, Labrador, Reyes, J.B.L., and
Endencia, JJ., concur.
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR
BODINO NOEL ETABAG DANILO DE LA FUENTE,
BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO
MANSOS, ALEX MARCELINO, ELIZABETH
PROTACIO-MARCELINO, JOSEPH OLAYER,
CARLOS PALMA, MARCO PALO, ROLANDO
SALUTIN, BENJAMIN SESGUNDO, ARTURO
TABARA, EDWIN TULALIAN and REBECCA
TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON,
COL. ROLANDO ABADILLA, COL. GERARDO B.
LANTORIA, COL. GALILEO KINTANAR, 1ST LT.
COL. PANFILO M. LACSON, MAJ. RODOLFO
AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT.
PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT.
RAUL BACALSO, MSGT BIENVENIDO BALABA and
REGIONAL TRIAL COURT, National Capital Judicial
Region, Branch XCV (95), Quezon City, respondents.
YAP, J.:
This petition for certiorari presents vital issues not heretofore passed upon by
this Court. It poses the question whether the suspension of the privilege of the
writ of habeas corpus bars a civil action for damages for illegal searches
conducted by military personnel and other violations of rights and liberties
guaranteed under the Constitution. If such action for damages may be
maintained, who can be held liable for such violations: only the military
personnel directly involved and/or their superiors as well.
This case stems from alleged illegal searches and
seizures and other violations of the rights and liberties
of plaintiffs by various intelligence units of the Armed
Forces of the Philippines, known as Task Force
Makabansa (TFM) ordered by General Fabian Ver "to
conduct pre-emptive strikes against known communist-
terrorist (CT) underground houses in view of increasing
reports about CT plans to sow disturbances in Metro
Manila," Plaintiffs allege, among others, that complying
with said order, elements of the TFM raided several
places, employing in most cases defectively issued
judicial search warrants; that during these raids, certain
members of the raiding party confiscated a number of
purely personal items belonging to plaintiffs; that
plaintiffs were arrested without proper warrants issued
by the courts; that for some period after their arrest,
they were denied visits of relatives and lawyers; that
plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated
them employed threats, tortures and other forms of
violence on them in order to obtain incriminatory
information or confessions and in order to punish them;
that all violations of plaintiffs constitutional rights were
part of a concerted and deliberate plan to forcibly
extract information and incriminatory statements from
plaintiffs and to terrorize, harass and punish them, said
plans being previously known to and sanctioned by
defendants.
Plaintiffs sought actual/compensatory damages
amounting to P39,030.00; moral damages in the
amount of at least P150,000.00 each or a total of
P3,000,000.00; exemplary damages in the amount of at
least P150,000.00 each or a total of P3,000,000.00; and
attorney's fees amounting to not less than P200,000.00.
A motion to dismiss was filed by defendants, through
their counsel, then Solicitor-General Estelito Mendoza,
alleging that (1) plaintiffs may not cause a judicial
inquiry into the circumstances of their detention in the
guise of a damage suit because, as to them, the
privilege of the writ of habeas corpus is suspended; (2)
assuming that the courts can entertain the present
action, defendants are immune from liability for acts
done in the performance of their official duties; and (3)
14 | P a g e
the complaint states no cause of action against the
defendants. Opposition to said motion to dismiss was
filed by plaintiffs Marco Palo, Danilo de la Fuente,
Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and
Rolando Salutin on July 8, 1983, and by plaintiffs Edwin
Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor
Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer,
Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca,
Alex Marcelino and Elizabeth Marcelino on July 21,
1983. On November 7, 1983, a Consolidated Reply was
filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court,
National Capital Region, Branch 95, Judge Willelmo C.
Fortun, Presiding, 1 issued a resolution granting the
motion to dismiss. I sustained, lock, stock and barrel,
the defendants' contention (1) the plaintiffs may not
cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to
them, the privilege of the writ of habeas corpus is
suspended; (2) that assuming that the court can
entertain the present action, defendants are immune
from liability for acts done in the performance of their
official duties; and (3) that the complaint states no
cause of action against defendants, since there is no
allegation that the defendants named in the complaint
confiscated plaintiffs' purely personal properties in
violation of their constitutional rights, and with the
possible exception of Major Rodolfo Aguinaldo and
Sergeant Bienvenido Balabo committed acts of torture
and maltreatment, or that the defendants had the duty
to exercise direct supervision and control of their
subordinates or that they had vicarious liability as
employers under Article 2180 of the Civil Code. The
lower court stated, "After a careful study of defendants'
arguments, the court finds the same to
be meritorious and must, therefore, be granted. On the
other hand, plaintiffs' arguments in their opposition are
lacking in merit."
A motion to set aside the order dismissing the complaint
and a supplemental motion for reconsideration was filed
by the plaintiffs on November 18, 1983, and November
24, 1983, respectively. On December 9, 1983, the
defendants filed a comment on the aforesaid motion of
plaintiffs, furnishing a copy thereof to the attorneys of all
the plaintiffs, namely, Attys. Jose W. Diokno, Procopio
Beltran, Rene Sarmiento, Efren Mercado, Auguso
Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V.
Sanidad, Alexander Padilla, Joker Arroyo, Rene
Saguisag, Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order
voluntarily inhibiting himself from further proceeding in
the case and leaving the resolution of the motion to set
aside the order of dismissal to Judge Lising, "to
preclude any suspicion that he (Judge Fortun) cannot
resolve [the] aforesaid pending motion with the cold
neutrality of an impartial judge and to put an end to
plaintiffs assertion that the undersigned has no authority
or jurisdiction to resolve said pending motion." This
order prompted plaintiffs to reesolve an amplificatory
motion for reconsideration signed in the name of the
Free Legal Assistance Group (FLAG) of Mabini Legal
Aid Committee, by Attys. Joker P. Arroyo, Felicitas
Aquino and Arno Sanidad on April 12, 1984. On May
2,1984, the defendants filed a comment on said
amplificatory motion for reconsideration.
In an order dated May 11, 1984, the trial court, Judge
Esteban Lising, Presiding, without acting on the motion
to set aside order of November 8, 1983, issued an
order, as follows:
It appearing from the records that,
indeed, the following plaintiffs, Rogelio
 Aberca, Danilo de la Fuente and Marco present action or complaint, dated
Palo, represented by counsel, Atty. Jose November 8, 1983, is also denied but in
W. Diokno, Alan Jasminez represented so far as it affects and refers to
by counsel, Atty. Augusta Sanchez, defendants, to wit:
Spouses Alex Marcelino and Elizabeth
Protacio-Marcelino, represented by 1. Major Rodolfo Aguinaldo, and
counsel, Atty. Procopio Beltran, Alfredo
Mansos represented by counsel, Atty. 2. Master Sgt. Bienvenido Balaba
Rene Sarmiento, and Rolando Salutin,
represented by counsel, Atty. Efren
the motion to reconsider and set aside
Mercado, failed to file a motion to
the Resolution of dismissal dated
reconsider the Order of November 8,
November 3, 1983 is granted and the
1983, dismissing the complaint, nor
Resolution of dismissal is, in this
interposed an appeal therefrom within
respect, reconsidered and modified.
the reglementary period, as prayed for
by the defendants, said Order is now
final against said plaintiffs. Hence, petitioners filed the instant petition for certiorari
on March 15, 1985 seeking to annul and set aside the
respondent court's resolution of November 8, 1983, its
Assailing the said order of May 11, 1984, the plaintiffs
order of May 11, 1984, and its resolution dated
filed a motion for reconsideration on May 28,1984,
September 21, 1984. Respondents were required to
alleging that it was not true that plaintiffs Rogelio
comment on the petition, which it did on November 9,
Aberca, Danilo de la Fuente, Marco Palo, Alan
1985. A reply was filed by petitioners on August 26,
Jasminez, Alex Marcelino, Elizabeth Protacio-
1986.
Marcelino, Alfredo Mansos and Rolando Salutin failed
to file a motion to reconsider the order of November 8,
1983 dismissing the complaint, within the reglementary We find the petition meritorious and decide to give it
period. Plaintiffs claimed that the motion to set aside the due course.
order of November 8, 1983 and the amplificatory motion
for reconsideration was filed for all the plaintiffs, At the heart of petitioners' complaint is Article 32 of the
although signed by only some of the lawyers. Civil Code which provides:

In its resolution of September 21, 1984, the respondent ART. 32. Any public officer or employee,
court dealt with both motions (1) to reconsider its order or any private individual who directly or
of May 11, 1984 declaring that with respect to certain indirectly obstructs, defeats, violates or
plaintiffs, the resolution of November 8, 1983 had in any manner impedes or impairs any
already become final, and (2) to set aside its resolution of the following rights and liberties of
of November 8, 1983 granting the defendants' motion to another person shall be liable to the
dismiss. In the dispositive portion of the order of latter for damages:
September 21, 1984, the respondent court resolved:
(1) Freedom of religion;
(1) That the motion to set aside the
order of finality, dated May 11, 1984, of (2) Freedom of speech;
the Resolution of dismissal of the
complaint of plaintiffs Rogelio Aberca, (3) Freedom to write for the press or to
Danilo de la Fuente, Marco Palo, Alan maintain a periodical publication;
Jasminez Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and (4) Freedom from arbitrary or illegal
Rolando Salutin is deed for lack of merit; detention;

(2) For lack of cause of action as (5) Freedom of suffrage;

against the following defendants, to wit:
(6) The right against deprivation of
1. Gen Fabian Ver property without due process

2. Col. Fidel Singson (7) of law;

3. Col. Rolando Abadilla (8) The right to a just compensation

when private property is taken for public
4. Lt. Col. Conrado use;
Lantoria, Jr.
(9) The right to the equal protection of
5. Col. Galileo Montanar the laws;

6. Col. Panfilo Lacson (10) The right to be secure in one's

person, house, papers, and effects
7. Capt. Danilo Pizaro against unreasonable searches and
seizures;
8. 1 Lt Pedro Tango
(11) The liberty of abode and of
9. Lt. Romeo Ricardo changing the same;

10. Lt. Raul Bacalso (12) The privacy of cmmunication and

correspondence;
the motion to set aside and reconsider
the Resolution of dismissal of the
15 | P a g e
 (13) The right to become a member of
associations or societies for purposes
not contrary to law;
(14) The right to take part in a
peaceable assembly to petition the
Government for redress of grievances;
(15) The right to be free from involuntary
servitude in any form;
(16) The rigth of the accused against
excessive bail;
(17) The rigth of the aaccused to be
heard by himself and counsel, to be
informed of the nature and cause of the
accusation against him, to have a
speedy and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the
attendance of witness in behalf;
(18) Freedom from being compelled to
be a witness against ones self, or from
being forced to confess guilt, or from
being induced by a promise of immunity
or reward to make such confession,
except when the person confessing
becomes a State witness;
(19) Freedom from excessive fines or
cruel and unusual punishment, unless
the same is imposed or inflicted in
accordance with a statute which has not
been judicially declared unconstitutional;
and
(20) Freedom of access to the courts.
In any of the cases referred to in this
article, whether or not the defendant's
act or omission constitutes a criminal
offense, the against grieved party has a
right to commence an entirely separate
and distinct civil action for damages,
and for other relief. Such civil action
shall proceed independently of any
criminal prosecution (if the latter be
instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral
damages. Exemplary damages may
also be adjudicated.
The responsibility herein set forth is not
demandable from a judge unless his act
or omission constitutes a violation of the
Penal Code or other penal statute.
It is obvious that the purpose of the above codal
provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the
Constitution. Its message is clear; no man may seek to
violate those sacred rights with impunity. In times of
great upheaval or of social and political stress, when the
temptation is strongest to yield borrowing the words
of Chief Justice Claudio Teehankee to the law of
force rather than the force of law, it is necessary to
remind ourselves that certain basic rights and liberties
are immutable and cannot be sacrificed to the transient
needs or imperious demands of the ruling power. The
rule of law must prevail, or else liberty will perish. Our
commitment to democratic principles and to the rule of
16 | P a g e
law compels us to reject the view which reduces law to
nothing but the expression of the will of the predominant
power in the community. "Democracy cannot be a reign
of progress, of liberty, of justice, unless the law is
respected by him who makes it and by him for whom it
is made. Now this respect implies a maximum of faith, a
minimum of Idealism. On going to the bottom of the
matter, we discover that life demands of us a certain
residuum of sentiment which is not derived from reason,
but which reason nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint,
the respondents postulate the view that as public
officers they are covered by the mantle of state
immunity from suit for acts done in the performance of
official duties or function In support of said contention,
respondents maintain that
Respondents are members of the
Armed Forces of the Philippines. Their
primary duty is to safeguard public
safety and order. The Constitution no
less provides that the President may call
them "to prevent or supress lawless
violence, invasion, insurrection or
rebellion, or imminent danger thereof."
(Constitution, Article VII, Section 9).
On January 17, 1981, the President
issued Proclamation No. 2045 lifting
martial law but providing for the
continued suspension of the privilege of
the writ of habeas corpus in view of the
remaining dangers to the security of the
nation. The proclamation also provided
"that the call to the Armed Forces of the
Philippines to prevent or suppress
lawless violence, insuitection rebellion
and subversion shall continue to be in
force and effect."
Petitioners allege in their complaint that
their causes of action proceed from
respondent General Ver's order to Task
Force Makabansa to launch pre-emptive
strikes against communist terrorist
underground houses in Metro Manila.
Petitioners claim that this order and its
subsequent implementation by elements
of the task force resulted in the violation
of their constitutional rights against
unlawful searches, seizures and arrest,
rights to counsel and to silence, and the
right to property and that, therefore,
respondents Ver and the named
members of the task force should be
held liable for damages.
But, by launching a pre-emptive strike
against communist terrorists,
respondent members of the armed
forces merely performed their official
and constitutional duties. To allow
petitioners to recover from respondents
by way of damages for acts performed
in the exercise of such duties run
contrary to the policy considerations to
shield respondents as public officers
from undue interference with their duties
and from potentially disabling threats of
hability (Aarlon v. Fitzgerald 102 S. Ct.
2731-1 Forbes v. Chuoco Tiaco, 16 Phil.
634), and upon the necessity of
protecting the performance of
governmental and public functions from
being harassed unduly or constantly
 interrupted by private suits (McCallan v.
State, 35 Cal. App. 605; Metran v.
Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from
liability arising from the performance of
their duties is now a settled
jurisprudence Alzua v. Johnson, 21 Phil.
308; Zulueta v. Nicolas, 102 Phil. 944;
Spalding v. Vilas, 161 US 483; 40 L. Ed.
780, 16 S. Ct. 631; Barr v. Mateo, 360;
Butz v. Economon, 438 US 478; 57 L.
Ed. 2d 895, 98 S. Ct. 2894; Scheuer v.
Rhodes, 416 US 232; Forbes v. Chuoco
Tiaco, supra; Miller v. de Leune, 602 F.
2d 198; Sami v. US, 617 F. 2d 755).
Respondents-defendants who merely
obeyed the lawful orders of the
President and his call for the
suppression of the rebellion involving
petitioners enjoy such immunity from
Suit.3
We find respondents' invocation of the doctrine of state
immunity from suit totally misplaced. The cases invoked
by respondents actually involved acts done by officers
in the performance of official duties written the ambit of
their powers. As held in Forbes, etc. vs. Chuoco Tiaco
and Crossfield: 4
No one can be held legally responsible
in damages or otherwise for doing in a
legal manner what he had authority,
under the law, to do. Therefore, if the
Governor-General had authority, under
the law to deport or expel the
defendants, and circumstances
justifying the deportation and the
method of carrying it out are left to him,
then he cannot be held liable in
damages for the exercise of this power.
Moreover, if the courts are without
authority to interfere in any manner, for
the purpose of controlling or interferring
with the exercise of the political powers
vested in the chief executive authority of
the Government, then it must follow that
the courts cannot intervene for the
purpose of declaring that he is liable in
damages for the exeercise of this
authority.
It may be that the respondents, as members of the
Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or
suppress lawless violence, insurrection, rebellion and
subversion" in accordance with Proclamation No. 2054
of President Marcos, despite the lifting of martial law on
January 27, 1981, and in pursuance of such objective,
to launch pre- emptive strikes against alleged
communist terrorist underground houses. But this
cannot be construed as a blanket license or a roving
commission untramelled by any constitutional restraint,
to disregard or transgress upon the rights and liberties
of the individual citizen enshrined in and protected by
the Constitution. The Constitution remains the supreme
law of the land to which all officials, high or low, civilian
or military, owe obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public
officer or employee or any private individual liable in
damages for violating the Constitutional rights and
liberties of another, as enumerated therein, does not
17 | P a g e
exempt the respondents from responsibility. Only
judges are excluded from liability under the said article,
provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.
This is not to say that military authorities are restrained
from pursuing their assigned task or carrying out their
mission with vigor. We have no quarrel with their duty to
protect the Republic from its enemies, whether of the
left or of the right, or from within or without, seeking to
destroy or subvert our democratic institutions and
imperil their very existence. What we are merely trying
to say is that in carrying out this task and mission,
constitutional and legal safeguards must be observed,
otherwise, the very fabric of our faith will start to
unravel. In the battle of competing Ideologies, the
struggle for the mind is just as vital as the struggle of
arms. The linchpin in that psychological struggle is faith
in the rule of law. Once that faith is lost or
compromised, the struggle may well be abandoned.
We do not find merit in respondents' suggestion that
plaintiffs' cause of action is barred by the suspension of
the privilege of the writ of habeas corpus. Respondents
contend that "Petitioners cannot circumvent the
suspension of the privilege of the writ by resorting to a
damage suit aimed at the same purpose-judicial inquiry
into the alleged illegality of their detention. While the
main relief they ask by the present action is
indemnification for alleged damages they suffered, their
causes of action are inextricably based on the same
claim of violations of their constitutional rights that they
invoked in the habeas corpus case as grounds for
release from detention. Were the petitioners allowed the
present suit, the judicial inquiry barred by the
suspension of the privilege of the writ will take place.
The net result is that what the courts cannot do, i.e.
override the suspension ordered by the President,
petitioners will be able to do by the mere expedient of
altering the title of their action."
We do not agree. We find merit in petitioners'
contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right
and cause of action for damages for illegal arrest and
detention and other violations of their constitutional
rights. The suspension does not render valid an
otherwise illegal arrest or detention. What is suspended
is merely the right of the individual to seek release from
detention through the writ of habeas corpus as a
speedy means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and
cause of action for damages are explicitly recognized in
P.D. No. 1755 which amended Article 1146 of the Civil
Code by adding the following to its text:
However, when the action (for injury to
the rights of the plaintiff or for a quasi-
delict) arises from or out of any act,
activity or conduct of any public officer
involving the exercise of powers or
authority arising from Martial Law
including the arrest, detention and/or
trial of the plaintiff, the same must be
brought within one (1) year.
Petitioners have a point in contending that even
assuming that the suspension of the privilege of the writ
of habeas corpus suspends petitioners' right of action
for damages for illegal arrest and detention, it does not
and cannot suspend their rights and causes of action for
injuries suffered because of respondents' confiscation
of their private belongings, the violation of their right to
remain silent and to counsel and their right to protection
against unreasonable searches and seizures and
against torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the
constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued
Proclamation No. 2, revoking Proclamation Nos. 2045
and 2045-A and lifting the suspension of the privilege of
the writ of habeas corpus. The question therefore has
become moot and academic.
This brings us to the crucial issue raised in this petition.
May a superior officer under the notion of respondent
superior be answerable for damages, jointly and
severally with his subordinates, to the person whose
constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondent
superior is applicable to the case. We agree. The
doctrine of respondent superior has been generally
limited in its application to principal and agent or to
master and servant (i.e. employer and employee)
relationship. No such relationship exists between
superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this
case, in our view, is the language of Article 32. The law
speaks of an officer or employee or person 'directly' or
"indirectly" responsible for the violation of the
constitutional rights and liberties of another. Thus, it is
not the actor alone (i.e. the one directly responsible)
who must answer for damages under Article 32; the
person indirectly responsible has also to answer for the
damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public
officials under the Constitution 5 acquires added
meaning and asgilrnes a larger dimension. No longer
may a superior official relax his vigilance or abdicate his
duty to supervise his subordinates, secure in the
thought that he does not have to answer for the
transgressions committed by the latter against the
constitutionally protected rights and liberties of the
citizen. Part of the factors that propelled people power
in February 1986 was the widely held perception that
the government was callous or indifferent to, if not
actually responsible for, the rampant violations of
human rights. While it would certainly be go naive to
expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it
should nonetheless be made clear in no ones terms that
Article 32 of the Civil Code makes the persons who are
directly, as well as indirectly, responsible for the
transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants
General Fabian Ver, Col. Fidel Singson, Col. Rolando
Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo
Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst
Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo
Bacalso from the acts of their subordinates. Only Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba
were kept as defendants on the ground that they alone
'have been specifically mentioned and Identified to have
allegedly caused injuries on the persons of some of the
plaintiff which acts of alleged physical violence
constitute a delict or wrong that gave rise to a cause of
action. But such finding is not supported by the record,
nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages
5 Section 1, Article 19. to 'acts of alleged physical
violence" which constituted delict or wrong. Article 32
clearly specifies as actionable the act of violating or in
any manner impeding or impairing any of the
18 | P a g e
constitutional rights and liberties enumerated therein,
among others
1. Freedom from arbitrary arrest or
illegal detention;
2. The right against deprivation of
property without due process of law;
3. The right to be secure in one's
person, house, papers and effects
against unreasonable searches and
seizures;
4. The privacy of communication and
correspondence;
5. Freedom from being compelled to be
a witness against one's self, or from
being forced to confess guilt, or from
being induced by a promise of immunity
or reward to make a confession, except
when the person confessing becomes a
state witness.
The complaint in this litigation alleges facts showing
with abundant clarity and details, how plaintiffs'
constitutional rights and liberties mentioned in Article 32
of the Civil Code were violated and impaired by
defendants. The complaint speaks of, among others,
searches made without search warrants or based on
irregularly issued or substantially defective warrants;
seizures and confiscation, without proper receipts, of
cash and personal effects belonging to plaintiffs and
other items of property which were not subversive and
illegal nor covered by the search warrants; arrest and
detention of plaintiffs without warrant or under irregular,
improper and illegal circumstances; detention of
plaintiffs at several undisclosed places of 'safehouses"
where they were kept incommunicado and subjected to
physical and psychological torture and other inhuman,
degrading and brutal treatment for the purpose of
extracting incriminatory statements. The complaint
contains a detailed recital of abuses perpetrated upon
the plaintiffs violative of their constitutional rights.
Secondly, neither can it be said that only those shown
to have participated "directly" should be held liable.
Article 32 of the Civil Code encompasses within the
ambit of its provisions those directly, as well as
indirectly, responsible for its violation.
The responsibility of the defendants, whether direct or
indirect, is amply set forth in the complaint. It is well
established in our law and jurisprudence that a motion
to dismiss on the ground that the complaint states no
cause of action must be based on what appears on the
face of the complaint. 6 To determine the sufficiency of
the cause of action, only the facts alleged in the
complaint, and no others, should be considered. 7 For
this purpose, the motion to dismiss must hypothetically
admit the truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial court's
ruling, dismissing for lack of cause of action the
complaint against all the defendants, except Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba.
The complaint contained allegations against all the
defendants which, if admitted hypothetically, would be
sufficient to establish a cause or causes of action
against all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court
correct in dismissing the complaint with respect to
plaintiffs Rogelio Aberca, Danilo de la Puente, Marco
Palo, Alan Jazminez, Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando
Salutin, on the basis of the alleged failure of said
plaintiffs to file a motion for reconsideration of the
court's resolution of November 8, 1983, granting the
respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said
order of November 8, 1983 was filed by 'plaintiffs,
through counsel. True, the motion was signed only by
Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido;
Atty. Antonio Rosales, counsel for Edwin Lopez and
Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel
for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S.
Aquino, counsel for Joseph Olayer; and Atty. Alexander
Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that
the motion was filed on behalf of all the plaintiffs. And
this must have been also the understanding of
defendants' counsel himself for when he filed his
comment on the motion, he furnished copies thereof,
not just to the lawyers who signed the motion, but to all
the lawyers of plaintiffs, to wit: Attys. Jose Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado,
Augusto Sanchez, Antonio Rosales, Pedro Efla Jr.,
Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene
Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of
November 8, 1983, the signing attorneys did so on
behalf of all the plaintiff. They needed no specific
authority to do that. The authority of an attorney to
appear for and in behalf of a party can be assumed,
unless questioned or challenged by the adverse party or
the party concerned, which was never done in this case.
Thus, it was grave abuse on the part of respondent
judge to take it upon himself to rule that the motion to
set aside the order of November 8, 1953 dismissing the
complaint was filed only by some of the plaintiffs, when
by its very language it was clearly intended to be filed
by and for the benefit of all of them. It is obvious that the
respondent judge took umbrage under a contrived
technicality to declare that the dismissal of the
complaint had already become final with respect to
some of the plaintiffs whose lawyers did not sign the
motion for reconsideration. Such action tainted with
legal infirmity cannot be sanctioned.
Accordingly, we grant the petition and annul and set
aside the resolution of the respondent court, dated
November 8, 1983, its order dated May 11, 1984 and its
resolution dated September 21, 1984. Let the case be
remanded to the respondent court for further
proceedings. With costs against private respondents.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras,
Feliciano, Gancayco, Bidin, Sarmiento, Cortes and
Grio-Aquino, JJ., concur.
Gutierrez, Jr., J., concur in the result.
Padilla, J., took no part.
Separate Opinions
19 | P a g e
TEEHANKEE, C.J., concurring:
The Court's judgment at bar makes clear that all
persons, be they public officers or employees, or
members of the military or police force or private
individuals who directly or indirectly obstruct, defeat,
violate or in any manner impede or impair the
constitutional rights and civil liberties of another person,
stand liable and may be sued in court for damages as
provided in Art. 32 of the Civil Code.
The case at bar specifically upholds and reinstates the
civil action for damages filed in the court below by
petitioners-plaintiffs for illegal searches conducted by
military personnel and other violations of their
constitutional rights and liberties. At the same time it
rejects the automatic application of the principle
of respondeat superior or command responsibility that
would hold a superior officer jointly and severally
accountable for damages, including moral and
exemplary, with his subordinates who committed such
transgressions. However, the judgment gives the caveat
that a superior officer must not abdicate his duty to
properly supervise his subordinates for he runs the risk
of being held responsible for gross negligence and of
being held under the cited provision of the Civil Code as
indirectly and solidarily accountable with the tortfeasor.
The rationale for this rule of law was best expressed by
Brandeis in wise: "In a government of laws, existence of
the government be imperilled following it fails to observe
the law scrupulously. Our government is the potent
omnipresent teacher. For good or ill, it teaches the
whole people by example. Crime is contagious. If the
government becomes the law breaker, it breeds
contempt for the law, it invites every man to become a
law unto himself, it invites anarchy. To declare that in
the administration of criminal law the end justifies the
means ... would bring terrible retribution." 1
As the writer stress in Hildawa vs. Enrile 2 Which Was
an action to enjoin the operations of the dreaded secret
marshals during the past regime, 'In a democratic state,
you don't stoop to the level of criminals. If we stoop to
what they do, then we're no better than they ... there
would be no difference. ... The Supreme Court stands
as the guarantor of the Constitutional and human rights
of all persons within its jurisdiction and cannot abdicate
its basic role under the Constitution that these rights be
respected and enforced. The spirit and letter of the
Constitution negates as contrary to the basic precepts
of human rights and freedom that a person's life be
snuffed out without due process in a split second even if
he is caught in flagrante delicto unless it was caned
for as an act of self-defense by the law agents using
reasonable means to prevent or repel an unlawful
aggression on the part of the deceased.
Needless to say, the criminal acts of the "Sparrow
Units" or death squads of the NPA which have
infutrated the cities and suburbs and performed their
despicable killings of innocent civilians and military and
police officers constitute an equally perverse violation of
the sanctity of human life and must be severely
condemned by all who adhere tothe Rule of the Law.
It need only be pointed out that one of the first acts of
the present government under President Corazon C.
Aquino after her assumption of office in February, 1986
was to file our government's ratification and access to
all human rights instruments adopted under the
auspices of the United Nations, declaring thereby the
government's commitment to observe the precepts of
the United Nations Charter and the Universal
Declaration of Human Rights. More than this, pursuant
to our Constitution which the people decisively ratified
on February 2, 1987, the independent office of the
Commission on Human Rights hats been created and
organized with ample powers to investigate human
rights violations and take remedial measures against all
such violations by the military as well as by the civilian
groups.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court's judgment at bar makes clear that all
persons, be they public officers or employees, or
members of the military or police force or private
individuals who directly or indirectly obstruct, defeat,
violate or in any manner impede or impair the
constitutional rights and civil liberties of another person,
stand liable and may be sued in court for damages as
provided in Art. 32 of the Civil Code.
The case at bar specifically upholds and reinstates the
civil action for damages filed in the court below by
petitioners-plaintiffs for illegal searches conducted by
military personnel and other violations of their
constitutional rights and liberties. At the same time it
rejects the automatic application of the principle
of respondeat superior or command responsibility that
would hold a superior officer jointly and severally
accountable for damages, including moral and
exemplary, with his subordinates who committed such
transgressions. However, the judgment gives the caveat
that a superior officer must not abdicate his duty to
properly supervise his subordinates for he runs the risk
of being held responsible for gross negligence and of
being held under the cited provision of the Civil Code as
indirectly and solidarily accountable with the tortfeasor.
The rationale for this rule of law was best expressed by
Brandeis in wise: "In a government of laws, existence of
the government be imperilled following it fails to observe
the law scrupulously. Our government is the potent
omnipresent teacher. For good or ill, it teaches the
whole people by example. Crime is contagious. If the
government becomes the law breaker, it breeds
contempt for the law, it invites every man to become a
law unto himself, it invites anarchy. To declare that in
the administration of criminal law the end justifies the
means ... would bring terrible retribution." 1
As the writer stress in Hildawa vs. Enrile 2 Which Was
an action to enjoin the operations of the dreaded secret
marshals during the past regime, 'In a democratic state,
you don't stoop to the level of criminals. If we stoop to
what they do, then we're no better than they ... there
would be no difference. ... The Supreme Court stands
as the guarantor of the Constitutional and human rights
of all persons within its jurisdiction and cannot abdicate
its basic role under the Constitution that these rights be
respected and enforced. The spirit and letter of the
Constitution negates as contrary to the basic precepts
of human rights and freedom that a person's life be
snuffed out without due process in a split second even if
he is caught in flagrante delicto unless it was caned
for as an act of self-defense by the law agents using
reasonable means to prevent or repel an unlawful
aggression on the part of the deceased.
Needless to say, the criminal acts of the "Sparrow
Units" or death squads of the NPA which have
20 | P a g e
infutrated the cities and suburbs and performed their
despicable killings of innocent civilians and military and
police officers constitute an equally perverse violation of
the sanctity of human life and must be severely
condemned by all who adhere tothe Rule of the Law.
It need only be pointed out that one of the first acts of
the present government under President Corazon C.
Aquino after her assumption of office in February, 1986
was to file our government's ratification and access to
all human rights instruments adopted under the
auspices of the United Nations, declaring thereby the
government's commitment to observe the precepts of
the United Nations Charter and the Universal
Declaration of Human Rights. More than this, pursuant
to our Constitution which the people decisively ratified
on February 2, 1987, the independent office of the
Commission on Human Rights hats been created and
organized with ample powers to investigate human
rights violations and take remedial measures against all
such violations by the military as well as by the civilian
groups.
G.R. No. 141309 June 19, 2007
LIWAYWAY VINZONS-CHATO, petitioner,
vs.
FORTUNE TOBACCO CORPORATION, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner assails the May 7, 1999 Decision1 of the
Court of Appeals in CA-G.R. SP No. 47167, which
affirmed the September 29, 1997 Order2 of the Regional
Trial Court (RTC) of Marikina, Branch 272, in Civil Case
No. 97-341-MK, denying petitioners motion to dismiss.
The complaint filed by respondent sought to recover
damages for the alleged violation of its constitutional
rights arising from petitioners issuance of Revenue
Memorandum Circular No. 37-93 (RMC 37-93), which
the Court declared invalid in Commissioner of Internal
Revenue v. Court of Appeals.3
Petitioner Liwayway Vinzons-Chato was then the
Commissioner of Internal Revenue while respondent
Fortune Tobacco Corporation is an entity engaged in
the manufacture of different brands of cigarettes,
among which are "Champion," "Hope," and "More"
cigarettes.
On June 10, 1993, the legislature enacted Republic Act
No. 7654 (RA 7654), which took effect on July 3, 1993.
Prior to its effectivity, cigarette brands Champion,"
"Hope," and "More" were considered local brands
subjected to an ad valorem tax at the rate of 20-45%.
However, on July 1, 1993, or two days before RA 7654
took effect, petitioner issued RMC 37-93 reclassifying
"Champion," "Hope," and "More" as locally
manufactured cigarettes bearing a foreign
brand subject to the 55% ad valorem tax.4 RMC 37-
93 in effect subjected "Hope," "More," and "Champion"
cigarettes to the provisions of RA 7654, specifically, to
Sec. 142,5 (c)(1) on locally manufactured cigarettes
which are currently classified and taxed at 55%, and
which imposes an ad valorem tax of "55% provided that
the minimum tax shall not be less than Five Pesos
(P5.00) per pack."6
On July 2, 1993, at about 5:50 p.m., BIR Deputy
Commissioner Victor A. Deoferio, Jr. sent via telefax a
copy of RMC 37-93 to Fortune Tobacco but it was
addressed to no one in particular. On July 15, 1993,
Fortune Tobacco received, by ordinary mail, a certified
xerox copy of RMC 37-93. On July 20, 1993,
respondent filed a motion for reconsideration requesting
the recall of RMC 37-93, but was denied in a letter
dated July 30, 1993.7 The same letter assessed
respondent for ad valorem tax deficiency amounting
to P9,598,334.00 (computed on the basis of RMC 37-
93) and demanded payment within 10 days from receipt
thereof.8 On August 3, 1993, respondent filed a petition
for review with the Court of Tax Appeals (CTA), which
on September 30, 1993, issued an injunction enjoining
the implementation of RMC 37-93.9 In its decision dated
August 10, 1994, the CTA ruled that RMC 37-93 is
defective, invalid, and unenforceable and further
enjoined petitioner from collecting the deficiency tax
assessment issued pursuant to RMC No. 37-93. This
ruling was affirmed by the Court of Appeals, and finally
by this Court in Commissioner of Internal Revenue v.
Court of Appeals.10 It was held, among others, that
RMC 37-93, has fallen short of the requirements for a
valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a
complaint11 for damages against petitioner in her private
capacity. Respondent contended that the latter should
be held liable for damages under Article 32 of the Civil
Code considering that the issuance of RMC 37-93
violated its constitutional right against deprivation of
property without due process of law and the right to
equal protection of the laws.
Petitioner filed a motion to dismiss12 contending that: (1)
respondent has no cause of action against her because
she issued RMC 37-93 in the performance of her official
function and within the scope of her authority. She
claimed that she acted merely as an agent of the
Republic and therefore the latter is the one responsible
for her acts; (2) the complaint states no cause of action
for lack of allegation of malice or bad faith; and (3) the
certification against forum shopping was signed by
respondents counsel in violation of the rule that it is the
plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioners
motion to dismiss holding that to rule on the allegations
of petitioner would be to prematurely decide the merits
of the case without allowing the parties to present
evidence. It further held that the defect in the
certification against forum shopping was cured by
respondents submission of the corporate secretarys
certificate authorizing its counsel to execute the
certification against forum shopping. The dispositive
portion thereof, states:
WHEREFORE, foregoing premises considered,
the motion to dismiss filed by the defendant
Liwayway Vinzons-Chato and the motion to
strike out and expunge from the record the said
motion to dismiss filed by plaintiff Fortune
Tobacco Corporation are both denied on the
grounds aforecited. The defendant is ordered to
file her answer to the complaint within ten (10)
days from receipt of this Order.
SO ORDERED.13
The case was elevated to the Court of Appeals via a
petition for certiorari under Rule 65. However, same
was dismissed on the ground that under Article 32 of
the Civil Code, liability may arise even if the defendant
did not act with malice or bad faith. The appellate court
ratiocinated that Section 38, Book I of the Administrative
Code is the general law on the civil liability of public
officers while Article 32 of the Civil Code is the special
law that governs the instant case. Consequently, malice
or bad faith need not be alleged in the complaint for
damages. It also sustained the ruling of the RTC that
21 | P a g e
the defect of the certification against forum shopping
was cured by the submission of the corporate
secretarys certificate giving authority to its counsel to
execute the same.
Undaunted, petitioner filed the instant recourse
contending that the suit is grounded on her acts done in
the performance of her functions as a public officer,
hence, it is Section 38, Book I of the Administrative
Code which should be applied. Under this provision,
liability will attach only when there is a clear showing of
bad faith, malice, or gross negligence. She further
averred that the Civil Code, specifically, Article 32 which
allows recovery of damages for violation of
constitutional rights, is a general law on the liability of
public officers; while Section 38, Book I of the
Administrative Code is a special law on the superior
public officers liability, such that, if the complaint, as in
the instant case, does not allege bad faith, malice, or
gross negligence, the same is dismissible for failure to
state a cause of action. As to the defect of the
certification against forum shopping, she urged the
Court to strictly construe the rules and to dismiss the
complaint.
Conversely, respondent argued that Section 38 which
treats in general the public officers "acts" from which
civil liability may arise, is a general law; while Article 32
which deals specifically with the public officers violation
of constitutional rights, is a special provision which
should determine whether the complaint states a cause
of action or not. Citing the case of Lim v. Ponce de
Leon,14 respondent alleged that under Article 32 of the
Civil Code, it is enough that there was a violation of the
constitutional rights of the plaintiff and it is not required
that said public officer should have acted with malice or
in bad faith. Hence, it concluded that even granting that
the complaint failed to allege bad faith or malice, the
motion to dismiss for failure to state a cause of action
should be denied inasmuch as bad faith or malice are
not necessary to hold petitioner liable.
The issues for resolution are as follows:
(1) May a public officer be validly sued in his/her
private capacity for acts done in connection with
the discharge of the functions of his/her office?
(2) Which as between Article 32 of the Civil
Code and Section 38, Book I of the
Administrative Code should govern in
determining whether the instant complaint
states a cause of action?
(3) Should the complaint be dismissed for failure
to comply with the rule on certification against
forum shopping?
(4) May petitioner be held liable for damages?
On the first issue, the general rule is that a public officer
is not liable for damages which a person may suffer
arising from the just performance of his official duties
and within the scope of his assigned tasks.15 An officer
who acts within his authority to administer the affairs of
the office which he/she heads is not liable for damages
that may have been caused to another, as it would
virtually be a charge against the Republic, which is not
amenable to judgment for monetary claims without its
consent.16 However, a public officer is by law not
immune from damages in his/her personal capacity for
acts done in bad faith which, being outside the scope of
his authority, are no longer protected by the mantle of
immunity for official actions.17
Specifically, under Section 38, Book I of the
Administrative Code, civil liability may arise where there
is bad faith, malice, or gross negligence on the part of a
superior public officer. And, under Section 39 of the
same Book, civil liability may arise where the
subordinate public officers act is characterized by
willfulness or negligence. Thus
Sec. 38. Liability of Superior Officers. (1) A
public officer shall not be civilly liable for acts
done in the performance of his official duties,
unless there is a clear showing of bad faith,
malice or gross negligence.
xxxx
Section 39. Liability of Subordinate Officers.
No subordinate officer or employee shall be
civilly liable for acts done by him in good faith in
the performance of his duties. However, he shall
be liable for willful or negligent acts done by him
which are contrary to law, morals, public policy
and good customs even if he acts under orders
or instructions of his superior.
In addition, the Court held in Cojuangco, Jr. v. Court of
Appeals,18 that a public officer who directly or indirectly
violates the constitutional rights of another, may be
validly sued for damages under Article 32 of the Civil
Code even if his acts were not so tainted with malice or
bad faith.
Thus, the rule in this jurisdiction is that a public officer
may be validly sued in his/her private capacity for acts
done in the course of the performance of the functions
of the office, where said public officer: (1) acted with
malice, bad faith, or negligence; or (2) where the public
officer violated a constitutional right of the plaintiff.
Anent the second issue, we hold that the complaint filed
by respondent stated a cause of action and that the
decisive provision thereon is Article 32 of the Civil
Code.
A general statute is one which embraces a class of
subjects or places and does not omit any subject or
place naturally belonging to such class. A special
statute, as the term is generally understood, is one
which relates to particular persons or things of a class
or to a particular portion or section of the state only.19
A general law and a special law on the same subject
are statutes in pari materia and should, accordingly, be
read together and harmonized, if possible, with a view
to giving effect to both. The rule is that where there are
two acts, one of which is special and particular and the
other general which, if standing alone, would include the
same matter and thus conflict with the special act, the
special law must prevail since it evinces the legislative
intent more clearly than that of a general statute and
must not be taken as intended to affect the more
particular and specific provisions of the earlier act,
unless it is absolutely necessary so to construe it in
order to give its words any meaning at all.20
The circumstance that the special law is passed before
or after the general act does not change the principle.
Where the special law is later, it will be regarded as an
exception to, or a qualification of, the prior general act;
and where the general act is later, the special statute
will be construed as remaining an exception to its terms,
unless repealed expressly or by necessary implication.21
Thus, in City of Manila v. Teotico,22 the Court held that
Article 2189 of the Civil Code which holds provinces,
22 | P a g e
cities, and municipalities civilly liable for death or
injuries by reason of defective conditions of roads and
other public works, is a special provision and should
prevail over Section 4 of Republic Act No. 409, the
Charter of Manila, in determining the liability for
defective street conditions. Under said Charter, the city
shall not be held for damages or injuries arising from
the failure of the local officials to enforce the provision
of the charter, law, or ordinance, or from negligence
while enforcing or attempting to enforce the same. As
explained by the Court:
Manila maintains that the former provision
should prevail over the latter, because Republic
Act 409 is a special law, intended exclusively for
the City of Manila, whereas the Civil Code is a
general law, applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil
Code, and, we think, correctly. It is true that,
insofar as its territorial application is concerned,
Republic Act No. 409 is a special law and the
Civil Code a general legislation; but, as regards
the subject matter of the provisions above
quoted, Section 4 of Republic Act 409
establishes a general rule regulating the liability
of the City of Manila for "damages or injury to
persons or property arising from the failure of"
city officers "to enforce the provisions of" said
Act "or any other law or ordinance, or from
negligence" of the city "Mayor, Municipal Board,
or other officers while enforcing or attempting to
enforce said provisions." Upon the other hand,
Article 2189 of the Civil Code constitutes a
particular prescription making "provinces, cities
and municipalities . . . liable for damages for the
death of, or injury suffered by, any person by
reason" specifically "of the defective
condition of roads, streets, bridges, public
buildings, and other public works under their
control or supervision." In other words, said
section 4 refers to liability arising from
negligence, in general, regardless of the
object thereof, whereas Article 2189 governs
liability due to "defective streets," in
particular. Since the present action is based
upon the alleged defective condition of a
road, said Article 2189 is decisive thereon.23
In the case of Bagatsing v. Ramirez,24 the issue was
which law should govern the publication of a tax
ordinance, the City Charter of Manila, a special act
which treats ordinances in general and which requires
their publication before enactment and after approval, or
the Tax Code, a general law, which deals in particular
with "ordinances levying or imposing taxes, fees or
other charges," and which demands publication only
after approval. In holding that it is the Tax Code which
should prevail, the Court elucidated that:
There is no question that the Revised Charter of
the City of Manila is a special act since it relates
only to the City of Manila, whereas the Local
Tax Code is a general law because it applies
universally to all local governments. Blackstone
defines general law as a universal rule affecting
the entire community and special law as one
relating to particular persons or things of a
class. And the rule commonly said is that a prior
special law is not ordinarily repealed by a
subsequent general law. The fact that one is
special and the other general creates a
presumption that the special is to be considered
as remaining an exception of the general, one
as a general law of the land, the other as the
law of a particular case. However, the rule
 readily yields to a situation where the
special statute refers to a subject in general,
which the general statute treats in particular.
Th[is] exactly is the circumstance obtaining
in the case at bar. Section 17 of the Revised
Charter of the City of Manila speaks of
"ordinance" in general, i.e., irrespective of
the nature and scope thereof, whereas,
Section 43 of the Local Tax Code relates to
"ordinances levying or imposing taxes, fees
or other charges" in particular. In regard,
therefore, to ordinances in general, the
Revised Charter of the City of Manila is
doubtless dominant, but, that dominant
force loses its continuity when it approaches
the realm of "ordinances levying or
imposing taxes, fees or other charges" in
particular. There, the Local Tax Code
controls. Here, as always, a general provision
must give way to a particular provision. Special
provision governs.
Let us examine the provisions involved in the case at
bar. Article 32 of the Civil Code provides:
ART. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates, or in any manner
impedes or impairs any of the following rights
and liberties of another person shall be liable to
the latter for damages:
xxxx
(6) The right against deprivation of property
without due process of law;
xxxx
(8) The right to the equal protection of the laws;
xxxx
The rationale for its enactment was explained by Dean
Bocobo of the Code Commission, as follows:
"DEAN BOCOBO. Article 32, regarding
individual rights, Attorney Cirilo Paredes
proposes that Article 32 be so amended as to
make a public official liable for violation of
another persons constitutional rights only if the
public official acted maliciously or in bad faith.
The Code Commission opposes this suggestion
for these reasons:
"The very nature of Article 32 is that the wrong
may be civil or criminal. It is not necessary
therefore that there should be malice or bad
faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective
protection of individual rights. Public officials in
the past have abused their powers on the
pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object
of the Article is to put an end to official abuse by
the plea of good faith. In the United States this
remedy is in the nature of a tort.
"Mr. Chairman, this article is firmly one of the
fundamental articles introduced in the New Civil
Code to implement democracy. There is no real
democracy if a public official is abusing and we
made the article so strong and so
comprehensive that it concludes an abuse of
individual rights even if done in good faith, that
23 | P a g e
official is liable. As a matter of fact, we know
that there are very few public officials who
openly and definitely abuse the individual rights
of the citizens. In most cases, the abuse is
justified on a plea of desire to enforce the law to
comply with ones duty. And so, if we should
limit the scope of this article, that would
practically nullify the object of the article.
Precisely, the opening object of the article is to
put an end to abuses which are justified by a
plea of good faith, which is in most cases the
plea of officials abusing individual rights."25
The Code Commission deemed it necessary to hold not
only public officers but also private individuals civilly
liable for violation of the rights enumerated in Article 32
of the Civil Code. It is not necessary that the defendant
under this Article should have acted with malice or bad
faith, otherwise, it would defeat its main purpose, which
is the effective protection of individual rights. It suffices
that there is a violation of the constitutional right of the
plaintiff.26
Article 32 was patterned after the "tort" in American
law.27 A tort is a wrong, a tortious act which has been
defined as the commission or omission of an act by
one, without right, whereby another receives some
injury, directly or indirectly, in person, property, or
reputation.28 There are cases in which it has been
stated that civil liability in tort is determined by the
conduct and not by the mental state of the tortfeasor,
and there are circumstances under which the motive of
the defendant has been rendered immaterial. The
reason sometimes given for the rule is that otherwise,
the mental attitude of the alleged wrongdoer, and not
the act itself, would determine whether the act was
wrongful.29 Presence of good motive, or rather, the
absence of an evil motive, does not render lawful an act
which is otherwise an invasion of anothers legal right;
that is, liability in tort is not precluded by the fact that
defendant acted without evil intent.30
The clear intention therefore of the legislature was to
create a distinct cause of action in the nature of tort for
violation of constitutional rights, irrespective of the
motive or intent of the defendant.31 This is a
fundamental innovation in the Civil Code, and in
enacting the Administrative Code pursuant to the
exercise of legislative powers, then President Corazon
C. Aquino, could not have intended to obliterate this
constitutional protection on civil liberties.
In Aberca v. Ver,32 it was held that with the enactment of
Article 32, the principle of accountability of public
officials under the Constitution acquires added meaning
and assumes a larger dimension. No longer may a
superior official relax his vigilance or abdicate his duty
to supervise his subordinates, secure in the thought that
he does not have to answer for the transgressions
committed by the latter against the constitutionally
protected rights and liberties of the citizen. Part of the
factors that propelled people power in February 1986
was the widely held perception that the government was
callous or indifferent to, if not actually responsible for,
the rampant violations of human rights. While it would
certainly be too naive to expect that violators of human
rights would easily be deterred by the prospect of facing
damage suits, it should nonetheless be made clear in
no uncertain terms that Article 32 of the Civil Code
makes the persons who are directly, as well as
indirectly, responsible for the transgression, joint
tortfeasors.
On the other hand, Sections 38 and 39, Book I of the
Administrative Code, laid down the rule on the civil
liability of superior and subordinate public officers for
acts done in the performance of their duties. For both
superior and subordinate public officers, the presence
of bad faith, malice, and negligence are vital elements
that will make them liable for damages. Note that while
said provisions deal in particular with the liability of
government officials, the subject thereof is
general, i.e., "acts" done in the performance of official
duties, without specifying the action or omission that
may give rise to a civil suit against the official
concerned.
Contrarily, Article 32 of the Civil Code specifies in clear
and unequivocal terms a particular specie of an "act"
that may give rise to an action for damages against a
public officer, and that is, a tort for impairment of rights
and liberties. Indeed, Article 32 is the special provision
that deals specifically with violation of constitutional
rights by public officers. All other actionable acts of
public officers are governed by Sections 38 and 39 of
the Administrative Code. While the Civil Code,
specifically, the Chapter on Human Relations is a
general law, Article 32 of the same Chapter is a special
and specific provision that holds a public officer liable
for and allows redress from a particular class of
wrongful acts that may be committed by public officers.
Compared thus with Section 38 of the Administrative
Code, which broadly deals with civil liability arising from
errors in the performance of duties, Article 32 of the
Civil Code is the specific provision which must be
applied in the instant case precisely filed to seek
damages for violation of constitutional rights.
The complaint in the instant case was brought under
Article 32 of the Civil Code. Considering that bad faith
and malice are not necessary in an action based on
Article 32 of the Civil Code, the failure to specifically
allege the same will not amount to failure to state a
cause of action. The courts below therefore correctly
denied the motion to dismiss on the ground of failure to
state a cause of action, since it is enough that the
complaint avers a violation of a constitutional right of the
plaintiff.
Anent the issue on non-compliance with the rule against
forum shopping, the subsequent submission of the
secretarys certificate authorizing the counsel to sign
and execute the certification against forum shopping
cured the defect of respondents complaint. Besides,
the merits of the instant case justify the liberal
application of the rules.33
WHEREFORE, in view of the foregoing, the petition
is DENIED. The Decision of the Court of Appeals dated
May 7, 1999 which affirmed the Order of the Regional
Trial Court of Marikina, Branch 272, denying petitioners
motion to dismiss, is AFFIRMED. The Presiding Judge,
Regional Trial Court of Marikina, Branch 272, is
hereby DIRECTED to continue with the proceedings in
Civil Case No. 97-341-MK with dispatch.
With costs.
SO ORDERED.
G.R. No. L-22554 August 29, 1975
DELFIN LIM and JIKIL TAHA, plaintiffs-appellants,
vs.
FRANCISCO PONCE DE LEON AND ORLANDO
MADDELA, defendants-appellees.
Ricardo L. Manalilig for plaintiffs-appellants.
Iigo R. Pea for defendants-appellees.
24 | P a g e
MARTIN, J.:
Appeal on a question of law from the decision of the
Court of First Instance of Palawan in Civil Case No.
416, entitled "Delfin Lim and Jikil Taha vs. Francisco
Ponce de Leon and Orlando Maddela", dismissing the
complaint of the plaintiffs and ordering them to pay each
of the defendants jointly and severally the sum of
P500.00 by way of actual damages; P500.00 by way of
attorney's fees; and P1,000.00 by way of exemplary
damages.
On April 29, 1961, plaintiff-appellant Jikil Taha sold to a
certain Alberto Timbangcaya of Brooke's Point,
Palawan a motor launch named M/L "SAN RAFAEL". A
year later or on April 9, 1962 Alberto Timbangcaya filed
a complaint with the Office of the Provincial Fiscal of
Palawan alleging that after the sale Jikil Taha forcibly
took away the motor launch from him.
On May 14, 1962, after conducting a preliminary
investigation, Fiscal Francisco Ponce de Leon in his
capacity as Acting Provincial Fiscal of Palawan, filed
with the Court of First Instance of Palawan the
corresponding information for Robbery the Force and
Intimidation upon Persons against Jikil Taha. The case
was docketed as Criminal Case No. 2719.
On June 15, 1962, Fiscal Francisco Ponce de Leon,
upon being informed that the motor launch was in
Balabac, Palawan, wrote the Provincial Commander of
Palawan requesting him to direct the detachment
commander-in Balabac to impound and take custody of
the motor launch.1
On June 26, 1962, Fiscal Ponce de Leon reiterated his
request to the Provincial Commander to impound the
motor launch, explaining that its subsequent sale to a
third party, plaintiff-appellant Delfin Lim, cannot prevent
the court from taking custody of the same.2 So, on July
6, 1962 upon order of the Provincial Commander,
defendant-appellee Orlando Maddela, Detachment
Commander of Balabac, Palawan, seized the motor
launch "SAN RAFAEL" from plaintiff-appellant Delfin
Lim and impounded it.
On July 15, 1962 plaintiff-appellant Delfin Lim pleaded
with Orlando Maddela to return the motor launch but the
latter refused. Likewise, on September 20, 1962, Jikil
Taha through his counsel made representations with
Fiscal Ponce de Leon to return the seized property to
plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon
refused, on the ground that the same was the subject of
a criminal offense.
All efforts to recover the motor launch going to naught,
plaintiffs-appellants Delfin Lim and Jikil Taha, on
November 19, 1962, filed with the Court of First
Instance of Palawan a complaint for damages against
defendants-appellees Fiscal Francisco Ponce de Leon
and Orlando Maddela, alleging that on July 6, 1962
Orlando Maddela entered the premises of Delfin Lim
without a search warrant and then and there took away
the hull of the motor launch without his consent; that he
effected the seizure upon order of Fiscal Ponce de Leon
who knew fully well that his office was not vested with
authority to order the seizure of a private property; that
said motor launch was purchased by Delfin Lim from
Jikil Taha in consideration of Three Thousand Pesos
(P3,000.00), Two Thousand Pesos (P2,000.00) of
which has been given to Jikil Taha as advance
payment; that as a consequence of the unlawful seizure
of the motor launch, its sale did not materialize; and that
since July 6, 1962, the said motor launch had been
moored at the Balabac Bay, Palawan and because of
exposure to the elements it had become worthless and
beyond repair. For the alleged violation of their
constitutional rights, plaintiffs-appellants prayed that
defendants-appellees be ordered to pay jointly and
severally each of them the sum of P5,750.00
representing actual, moral and exemplary damages and
attorney's fees.
In their answer, defendants-appellees denied the
material allegations of the complaint and as affirmative
defenses alleged that the motor launch in question
which was sold by Jikil Taha to Alberto Timbangcaya on
April 29, 1961 was sometime in April 1962, forcibly
taken with violence upon persons and with intent to gain
by Jikil Taha from Alfredo Timbangcaya without the
latter's knowledge and consent, thus giving rise to the
filing of a criminal charge of robbery against Jikil Taha;
that Fiscal Ponce de Leon, in his capacity as Acting
Provincial Fiscal of Palawan ordered Orlando Maddela
to seize and impound the motor launch "SAN RAFAEL",
for being the corpus delicti of the robbery; and that
Orlando Maddela merely obeyed the orders of his
superior officer to impound said launch. By way of
counterclaim, defendants-appellees alleged that
because of the malicious and groundless filing of the
complaint by plaintiffs-appellants, they were constrained
to engage the services of lawyers, each of them paying
P500.00 as attorney's fees; and that they suffered moral
damages in the amount of P5,000.00 each and actual
damages in the amount of P500.00 each. They also
prayed that each of them awarded exemplary damages
in the amount of P1,000.00.
On September 13, 1965, the trial court rendered its
decision, upholding the validity of the seizure of the
motor launch on the ground that "the authority to
impound evidences or exhibits or corpus delicti in a
case pending investigation is inherent in the Provincial
Fiscal who controls the prosecution and who introduces
those exhibits in the court." Accordingly, the trial court
dismissed the complaint of plaintiffs-appellants and
ordered them to pay jointly and severally each of the
defendants-appellees the amount of P500.00 by way of
actual damages another amount of P500.00 for
attorney's fees and P1,000.00 as exemplary damages.
Hence, this appeal.
Two vital issues call for resolution by this Court. First,
whether or not defendant-appellee Fiscal Ponce de
Leon had the power to order the seizure of the motor
launch in question without a warrant of search and
seizure even if the same was admittedly the corpus
delicti of the crime. Second, whether or not defendants-
appellees are civilly liable to plaintiffs-appellants for
damages allegedly suffered by them granting that the
seizure of the motor launch was unlawful.
The gravamen of plaintiffs-appellants' argument is that
the taking of the motor launch on July 6, 1962 by
Orlando Maddela upon the order of Fiscal Ponce de
Loon was in violation of the constitutional guarantee
against unreasonable searches and seizures since it
was done without a warrant.
The pertinent provision of the Constitution then in force
reads:
3) The right of the people to be secure
in their persons, houses, papers and
effects against unreasonable searches
and seizures shall not be violated, and
no warrants shall issue but upon
probable cause, to be determined by the
judge after examination under oath or
25 | P a g e
affirmation of the complainant and the
witnesses he may produce, and
particularly describing the place to be
searched, and the persons or things to
be seized.3
A cursory reading of the above provision easily brings
into focus the unreasonableness of the seizure of the
aforementioned motor launch. A search and seizure to
be reasonable, must be effected by means of a valid
search warrant. And for a search warrant to be valid: (1)
it must be issued upon probable cause; (2) the probable
cause must be determined by the judge himself and not
by the applicant or any other person; (3) in the
determination of probable cause, the judge must
examine, under oath or affirmation, the complainant and
such witnesses as the latter may produce; and (4) the
warrant issued must particularly describe the place to
be searched and persons or things to be seized.4 Thus
in a long line of decisions, this Court has declared
invalid search warrants which were issued in utter
disregard of the constitutional injunction.5
Defendants-appellees admitted that when Orlando
Maddela entered the premises of Delfin Lim and
impounded the motor launch he was not armed with a
search warrant; that he effected the seizure of the motor
launch in the absence of and without the consent of
Delfin Lim. There can be no question that without the
proper search warrant, no public official has the right to
enter the premises of another without his consent for
the purpose of search and seizure.6 And since in the
present case defendants-appellees seized the motor
launch without a warrant, they have violated the
constitutional right of plaintiffs-appellants against
unreasonable search and seizure.
Defendants-appellees however would want to justify the
seizure of the motor launch even without a warrant
because of Fiscal Ponce de Leon's alleged inherent
power to order the seizure of a personal property which
is the corpus delicti of a crime, he being a quasi judicial
officer who has the control of the prosecution and the
presentation of the evidence in the criminal case. They
argue that inasmuch as the motor launch in question
was allegedly stolen by Jikil Taha from Timbangcaya,
Fiscal Ponce de Leon could order its seizure even
without a search warrant. We cannot agree. Under the
old Constitution7 the power to issue a search warrant is
vested in a judge or magistrate and in no other officer
and no search and seizure can be made without a
proper warrant. At the time the act complained of was
committed, there was no law or rule that recognized the
authority of Provincial Fiscals to issue a search warrant.
In his vain attempt to justify the seizure of the motor
launch in question without a warrant Fiscal Ponce de
Leon invoked the provisions of Republic Act No. 732,
which amended Sections 1674 and 1687 of the Revised
Administrative Code. But there is nothing in said law
which confers upon the provincial fiscal; the authority to
issue warrants, much less to order without warrant the
seizure of a personal property even if it is the corpus
delicti of a crime. True, Republic Act No. 732 has
broadened the power of provincial fiscals to conduct
preliminary investigations, but said law did not divest
the judge or magistrate of its power to determine, before
issuing the corresponding warrant, whether or not
probable cause exists therefor.8
Moreover, under Sections 2 and 3 of Rule 122 of the
Rules of Court 9 which complement the constitutional provision earlier
cited, two principles are made clear, namely: (1) that in the seizure of a stolen
property search warrant is still necessary; and (2) that in issuing a search
warrant the judge alone determines whether or not there is a probable cause.
The fact that a thing is a corpus delicti of a crime does not justify its seizure
without a warrant. As held in U.S. v. de los
Reyes and Esguerra, 10 citing McClurg v. Brenton: 11
 The mere fact that a man is an officer,
whether of high or low degree, gives him
no more right than is possessed by the
ordinary private citizen to break in upon
the privacy of a home and subject its
occupant to the indignity of a search for
the evidence of crime, without a legal
warrant procured for that purpose. No
amount of incriminating evidence
whatever its source, will supply the
place of such warrant. At the closed
door of the home be it palace or hovel
even bloodhounds must wait till the law,
by authoritative process, bids it open.
(Emphasis supplied.)
Defendant-appellee Fiscal Ponce de Leon would also
invoke lack of time to procure a search warrant as an
excuse for the seizure of the motor launch without one.
He claimed that the motor launch had to be seized
immediately in order to preserve it and to prevent its
removal out of the locality, since Balabac, Palawan,
where the motor launch was at the time, could only be
reached after three to four days' travel by boat. 12 The
claim cannot be sustained. The records show that on
June 15, 1962 13 Fiscal Ponce de Leon made the first
request to the Provincial Commander for the
impounding of the motor launch; and on June 26,
1962 14 another request was made. The seizure was not
effected until July 6, 1962. In short, Fiscal Ponce de
Leon had all the time to procure a search warrant had
he wanted to and which he could have taken in less
than a day, but he did not. Besides, there is no basis for
the apprehension that the motor launch might be moved
out of Balabac because even prior to its seizure the
motor launch was already without its engine. 15 In sum,
the fact that there was no time to secure a search
warrant would not legally justify a search without one. 16
As to whether or not they are entitled to damages,
plaintiffs-appellants anchor their claim for damages on
Articles 32 and 2219 of the New Civil Code which
provide in part as follows:
ART. 32. Any public officer or employee,
or any private individual, who directly or
indirectly obstructs, defeats, violates or
in any manner impedes or impairs any
of the following rights and liberties of
another person shall be liable to the
latter for damages.
xxx xxx xxx
(9) The rights to be secure in one's
person, house, papers, and effects
against unreasonable searches and
seizures.
xxx xxx xxx
The indemnity shall include moral
damages. Exemplary damages may
also be adjudicated.
ART. 2219. Moral damages may be
recovered in the following and
analogous cases:
xxx xxx xxx
(6) Illegal search;
xxx xxx xxx
26 | P a g e
(1) Acts and action referred to in Articles
21, 26, 27, 28, 29, 30, 32, 34 and 35.
Pursuant to the foregoing provisions, a person whose
constitutional rights have been violated or impaired is
entitled to actual and moral damages from the public
officer or employee responsible therefor. In addition,
exemplary damages may also be awarded. In the
instant case, plaintiff-appellant Delfin Lim claimed that
he purchased the motor launch from Jikil Taha in
consideration of P3,000.00, having given P2,000.00 as
advanced payment; that since or seizure on July 6,
1962 the motor launch had been moored at Balabac
Bay and because of exposure to the elements it has
become worthless at the time of the filing of the present
action; that because of the illegality of the seizure of the
motor launch, he suffered moral damages in the sum of
P1,000.00; and that because of the violation of their
constitutional rights they were constrained to engage
the services of a lawyer whom they have paid
P1,500.00 for attorney's fees. We find these claims of
Delfin Lim amply supported by the evidence and
therefore should be awarded the sum of P3,000.00 as
actual damages; P1,000.00 as moral damages and
P750.00 for attorney's fees. However, with respect co
plaintiff Jikil Taha, he is not entitled to recover any
damage which he alleged he had suffered from the
unlawful seizure of the motor launch inasmuch as he
had already transferred the ownership and possession
of the motor launch to Delfin Lim at the time it was
seized and therefore, he has no legal standing to
question the validity of the seizure. Well settled is the
rule that the legality of a seizure can be contested only
by the party whose rights have been impaired thereby,
and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third
parties. 17 Consequently, one who is not the owner,
lessee, or lawful occupant of the premise searched
cannot raise the question of validity of the search and
seizure. 18 Jikil Taha is not without recourse though. He
can still collect from his co-plaintiff, Delfin Lim the
unpaid balance of P1,000.00.
Defendant-appellee Fiscal Ponce de Leon wanted to
wash his hands of the incident by claiming that "he was
in good faith, without malice and without the slightest
intention of inflicting injury to plaintiff-appellant, Jikil
Taha" 19when he ordered the seizure of the motor
launch. We are not prepared to sustain his defense of
good faith. To be liable under Article 32 of the New Civil
Code it is enough that there was a violation of the
constitutional rights of the plaintiffs and it is not required
that defendants should have acted with malice or bad
faith. Dr. Jorge Bocobo, Chairman of the Code
Commission, gave the following reasons during the
public hearings of the Joint Senate and House
Committees, why good faith on the part of the public
officer or employee is immaterial. Thus:
DEAN BOCOBO. Article 32, regarding
individual rights; Attorney Cirilo Paredes
proposes that Article 32 be so amended
as to make a public official liable for
violation of another person's
constitutional rights only if the public
official acted maliciously or in bad faith.
The Code Commission opposes this
suggestion for these reasons:
The very nature of Article 32 is that the
wrong may be civil or criminal. It is not
necessary therefore that there should be
malice or bad faith. To make such a
requisite would defeat the main purpose
of Article 32 which is the effective
protection of individual rights. Public
 officials in the past have abused their
powers on the pretext of justifiable
motives or good faith in the performance
of their duties. Precisely, the object of
the Article is to put an end to official
abuse by the plea of good faith. In the
United States this remedy is in he
nature of a tort.
Mr. Chairman, this article is firmly one of
the fundamental articles introduced in
the New Civil Code to implement
democracy. There is no real democracy
if a public official is abusing, and we
made the article so strong and so
comprehensive that it concludes an
abuse of individual rights even if done in
good faith, that official is liable. As a
matter of fact, we know that there are
very few public officials who openly and
definitely abuse the individual rights of
the citizens. In most cases, the abuse is
justified on a plea of desire to enforce
the law to comply with one's duty. And
so, if we should limit the scope of this
article, that would practically nullify the
object of the article. Precisely, the
opening object of the article is to put an
end to abuses which are justified by a
plea of good faith, which is in most
cases the plea of officials abusing
individual rights. 20
But defendant-appellee Orlando Maddela cannot be
held accountable because he impounded the motor
launch upon the order of his superior officer. While a
subordinate officer may be held liable for executing
unlawful orders of his superior officer, there are certain
circumstances which would warrant Maddela's
exculpation from liability. The records show that after
Fiscal Ponce de Leon made his first request to the
Provincial Commander on June 15, 1962 Maddela was
reluctant to impound the motor launch despite repeated
orders from his superior officer. 21 It was only after he
was furnished a copy of the reply of Fiscal Ponce de
Leon, dated June 26, 1962, to the letter of the Provincial
Commander, justifying the necessity of the seizure of
the motor launch on the ground that the subsequent
sale of the launch to Delfin Lim could not prevent the
court from taking custody of the same, 22 that he
impounded the motor launch on July 6, 1962. With said
letter coming from the legal officer of the province,
Maddela was led to believe that there was a legal basis
and authority to impound the launch. Then came the
order of his superior officer to explain for the delay in
the seizure of the motor launch. 23 Faced with a possible
disciplinary action from his Commander, Maddela was
left with no alternative but to seize the vessel. In the
light of the above circumstances. We are not disposed
to hold Maddela answerable for damages.
IN VIEW OF THE FOREGOING, the decision appealed
from is hereby reversed and another one entered
declaring the seizure illegal and ordering defendant-
appellee Fiscal Francisco Ponce de Leon to pay to
plaintiff-appellant Delfin Lim the sum of P3,000.00 as
actual damages, plus P1,000.00 moral damages, and,
in addition, P750.00 for attorney's fees. With costs
against defendant-appellee Fiscal Ponce de Leon.
SO ORDERED.
G.R. No. 137567 June 20, 2000
MEYNARDO L. BELTRAN, petitioner,
vs.
27 | P a g e
PEOPLE OF THE PHILIPPINES, and HON. JUDGE
FLORENTINO TUAZON, JR., being the Judge of the
RTC, Brach 139, Makati City, respondents.
BUENA, J.:
This petition for review, filed under Rule 45 of the 1997
Rules of Civil Procedure, seeks to review and set aside
the Order dated January 28, 1999 issued by Judge
Florentino A. Tuazon, Jr. of the Regional Trial Court of
Makati City, Branch 139 in Special Civil Case No. 98-
3056, entitled "Meynardo Beltran vs. People of the
Philippines and Hon. Judge Alden Cervantes of the
Metropolitan Trial Court of Makati City, Branch 61." The
said Order denied petitioner's prayer for the issuance of
a writ of preliminary injunction to enjoin Judge
Cervantes from proceeding with the trial of Criminal
Case No. 236176, a concubinage case against
petitioner on the ground that the pending petition for
declaration of nullity of marriage filed by petitioner
against his wife constitutes a prejudicial question.
The antecedent facts of the case are undisputed:
Petitioner Meynardo Beltran and wife Charmaine E.
Felix were married on June 16, 1973 at the Immaculate
Concepcion Parish Church in Cubao, Quezon City.1
On February 7, 1997, after twenty-four years of
marriage and four children,2 petitioner filed a petition for
nullity of marriage on the ground of psychological
incapacity under Article 36 of the Family Code before
Branch 87 of the Regional Trial Court of Quezon City.
The case was docketed as Civil Case No. Q-97-30192.3
In her Answer to the said petition, petitioner's wife
Charmaine Felix alleged that it was petitioner who
abandoned the conjugal home and lived with a certain
woman named Milagros Salting.4 Charmaine
subsequently filed a criminal complaint for
concubinage5 under Article 334 of the Revised Penal
Code against petitioner and his paramour before the
City Prosecutor's Office of Makati who, in a Resolution
dated September 16, 1997, found probable cause and
ordered the filing of an Information6 against them. The
case, docketed as Criminal Case No. 236176, was filed
before the Metropolitan Trial Court of Makati City,
Branch 61. 1awphi1
On March 20, 1998, petitioner, in order to forestall the
issuance of a warrant for his arrest, filed a Motion to
Defer Proceedings Including the Issuance of the
Warrant of Arrest in the criminal case. Petitioner argued
that the pendency of the civil case for declaration of
nullity of his marriage posed a prejudicial question to
the determination of the criminal case. Judge Alden
Vasquez Cervantes denied the foregoing motion in the
Order7 dated August 31, 1998. Petitioner's motion for
reconsideration of the said Order of denial was likewise
denied in an Order dated December 9, 1998.
In view of the denial of his motion to defer the
proceedings in the concubinage case, petitioner went to
the Regional Trial Court of Makati City, Branch 139
on certiorari, questioning the Orders dated August 31,
1998 and December 9, 1998 issued by Judge
Cervantes and praying for the issuance of a writ of
preliminary injunction.8 In an Order9 dated January 28,
1999, the Regional Trial Court of Makati denied the
petition for certiorari. Said Court subsequently issued
another Order 10 dated February 23, 1999, denying his
motion for reconsideration of the dismissal of his
petition.
Undaunted, petitioner filed the instant petition for
review.
Petitioner contends that the pendency of the petition for
declaration of nullity of his marriage based on
psychological incapacity under Article 36 of the Family
Code is a prejudicial question that should merit the
suspension of the criminal case for concubinage filed
against him by his wife.
Petitioner also contends that there is a possibility that
two conflicting decisions might result from the civil case
for annulment of marriage and the criminal case for
concubinage. In the civil case, the trial court might
declare the marriage as valid by dismissing petitioner's
complaint but in the criminal case, the trial court might
acquit petitioner because the evidence shows that his
marriage is void on ground of psychological incapacity.
Petitioner submits that the possible conflict of the
courts' ruling regarding petitioner's marriage can be
avoided, if the criminal case will be suspended, until the
court rules on the validity of marriage; that if petitioner's
marriage is declared void by reason of psychological
incapacity then by reason of the arguments submitted in
the subject petition, his marriage has never existed; and
that, accordingly, petitioner could not be convicted in
the criminal case because he was never before a
married man.
Petitioner's contentions are untenable.
The rationale behind the principle of prejudicial question
is to avoid two conflicting decisions. It has two essential
elements: (a) the civil action involves an issue similar or
intimately related to the issue raised in the criminal
action; and (b) the resolution of such issue determines
whether or not the criminal action may proceed. 11
The pendency of the case for declaration of nullity of
petitioner's marriage is not a prejudicial question to the
concubinage case. For a civil case to be considered
prejudicial to a criminal action as to cause the
suspension of the latter pending the final determination
of the civil case, it must appear not only that the said
civil case involves the same facts upon which the
criminal prosecution would be based, but also that in
the resolution of the issue or issues raised in the
aforesaid civil action, the guilt or innocence of the
accused would necessarily be determined.
Art. 40 of the Family Code provides:
The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void.
In Domingo vs. Court of Appeals, 12 this Court ruled that
the import of said provision is that for purposes of
remarriage, the only legally acceptable basis for
declaring a previous marriage an absolute nullity is a
final judgment declaring such previous marriage void,
whereas, for purposes of other than remarriage, other
evidence is acceptable. The pertinent portions of said
Decision read:
. . . Undoubtedly, one can conceive of other
instances where a party might well invoke the
absolute nullity of a previous marriage for
purposes other than remarriage, such as in
case of an action for liquidation, partition,
distribution and separation of property between
the erstwhile spouses, as well as an action for
the custody and support of their common
children and the delivery of the latters'
presumptive legitimes. In such cases, evidence
needs must be adduced, testimonial or
documentary, to prove the existence of grounds
rendering such a previous marriage an absolute
28 | P a g e
nullity. These needs not be limited solely to an
earlier final judgment of a court declaring such
previous marriage void.
So that in a case for concubinage, the accused, like the
herein petitioner need not present a final judgment
declaring his marriage void for he can adduce evidence
in the criminal case of the nullity of his marriage other
than proof of a final judgment declaring his marriage
void.
With regard to petitioner's argument that he could be
acquitted of the charge of concubinage should his
marriage be declared null and void, suffice it to state
that even a subsequent pronouncement that his
marriage is void from the beginning is not a defense.
Analogous to this case is that of Landicho
vs. Relova 1 cited in Donato vs. Luna 14 where this Court
held that:
. . . Assuming that the first marriage was null
and void on the ground alleged by petitioner,
that fact would not be material to the outcome of
the criminal case. Parties to the marriage should
not be permitted to judge for themselves its
nullity, for the same must be submitted to the
judgment of the competent courts and only
when the nullity of the marriage is so declared
can it be held as void, and so long as there is no
such declaration the presumption is that the
marriage exists. Therefore, he who contracts a
second marriage before the judicial declaration
of nullity of the first marriage assumes the risk
of being prosecuted for bigamy.
Thus, in the case at bar it must also be held that parties
to the marriage should not be permitted to judge for
themselves its nullity, for the same must be submitted to
the judgment of the competent courts and only when
the nullity of the marriage is so declared can it be held
as void, and so long as there is no such declaration the
presumption is that the marriage exists for all intents
and purposes. Therefore, he who cohabits with a
woman not his wife before the judicial declaration of
nullity of the marriage assumes the risk of being
prosecuted for concubinage. The lower court therefore,
has not erred in affirming the Orders of the judge of the
Metropolitan Trial Court ruling that pendency of a civil
action for nullity of marriage does not pose a prejudicial
question in a criminal case for concubinage.
WHEREFORE, for lack of merit, the instant petition is
DISMISSED.
SO ORDERED.
G.R. No. 26795 July 31, 1970
CARMEN QUIMIGUING, Suing through her parents,
ANTONIO QUIMIGUING and JACOBA
CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffs-appellants.
Godardo Jacinto for defendant-appellee.
REYES, J.B.L., J.:
Appeal on points of law from an order of the Court of
First Instance of Zamboanga del Norte (Judge Onofre
Sison Abalos, presiding), in its Civil Case No. 1590,
dismissing a complaint for support and damages, and
another order denying amendment of the same
pleading.
The events in the court of origin can be summarized as
follows:
Appellant, Carmen Quimiguing, assisted by her parents,
sued Felix Icao in the court below. In her complaint it
was averred that the parties were neighbors in Dapitan
City, and had close and confidential relations; that
defendant Icao, although married, succeeded in having
carnal intercourse with plaintiff several times by force
and intimidation, and without her consent; that as a
result she became pregnant, despite efforts and drugs
supplied by defendant, and plaintiff had to stop
studying. Hence, she claimed support at P120.00 per
month, damages and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for
lack of cause of action since the complaint did not
allege that the child had been born; and after hearing
arguments, the trial judge sustained defendant's motion
and dismissed the complaint.
Thereafter, plaintiff moved to amend the complaint to
allege that as a result of the intercourse, plaintiff had
later given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was
allowable, since the original complaint averred no cause
of action. Wherefore, the plaintiff appealed directly to
this Court.
We find the appealed orders of the court below to be
untenable. A conceived child, although as yet unborn, is
given by law a provisional personality of its own for all
purposes favorable to it, as explicitly provided in Article
40 of the Civil Code of the Philippines. The unborn
child, therefore, has a right to support from its
progenitors, particularly of the defendant-appellee
(whose paternity is deemed admitted for the purpose of
the motion to dismiss), even if the said child is only "en
ventre de sa mere;" just as a conceived child, even if as
yet unborn, may receive donations as prescribed by
Article 742 of the same Code, and its being ignored by
the parent in his testament may result in preterition of a
forced heir that annuls the institution of the
testamentary heir, even if such child should be born
after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived
and unborn children may be accepted
by those persons who would legally
represent them if they were already
born.
ART. 854. The preterition or omission of
one, some, or all of the compulsory
heirs in the direct line, whether living at
the time of the execution of the will or
born after the death of the testator, shall
annul the institution of heir; but the
devises and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should
die before the testator, the institution
shall be effectual, without prejudice to
the right of 'representation.
It is thus clear that the lower court's theory that Article
291 of the Civil Code declaring that support is an
obligation of parents and illegitimate children "does not
contemplate support to children as yet unborn," violates
Article 40 aforesaid, besides imposing a condition that
29 | P a g e
nowhere appears in the text of Article 291. It is true that
Article 40 prescribing that "the conceived child shall be
considered born for all purposes that are favorable to it"
adds further "provided it be born later with the
conditions specified in the following article" (i.e., that the
foetus be alive at the time it is completely delivered from
the mother's womb). This proviso, however, is not a
condition precedent to the right of the conceived child;
for if it were, the first part of Article 40 would become
entirely useless and ineffective. Manresa, in his
Commentaries (5th Ed.) to the corresponding Article 29
of the Spanish Civil Code, clearly points this out:
Los derechos atribuidos al nasciturus no
son simples expectativas, ni aun en el
sentido tecnico que la moderna doctrina
da a esta figura juridica sino que
constituyen un caso de los propiamente
Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en
las condiciones previstas por el art. 30,
no determina el nacimiento de aquellos
derechos (que ya existian de
antemano), sino que se trata de un
hecho que tiene efectos declarativos. (1
Manresa, Op. cit., page 271)
A second reason for reversing the orders appealed from
is that for a married man to force a woman not his wife
to yield to his lust (as averred in the original complaint in
this case) constitutes a clear violation of the rights of his
victim that entitles her to claim compensation for the
damage caused. Says Article 21 of the Civil Code of the
Philippines:
ART. 21. Any person who wilfully
causes loss or injury to another in a
manner that is contrary to morals, good
customs or public policy shall
compensate the latter for the damage.
The rule of Article 21 is supported by Article 2219 of the
same Code:
ART 2219. Moral damages may be
recovered in the following and
analogous cases:
(3) Seduction, abduction, rape or other
lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in
Articles 21, 26, 27, 28 ....
Thus, independently of the right to Support of the child
she was carrying, plaintiff herself had a cause of action
for damages under the terms of the complaint; and the
order dismissing it for failure to state a cause of action
was doubly in error.
WHEREFORE, the orders under appeal are reversed
and set aside. Let the case be remanded to the court of
origin for further proceedings conformable to this
decision. Costs against appellee Felix Icao. So ordered.
G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR
LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question
whether the husband of a woman, who voluntarily
procured her abortion, could recover damages from
physician who caused the same.
The litigation was commenced in the Court of First
Instance of Manila by respondent Oscar Lazo, the of
Nita Villanueva, against petitioner Antonio Geluz, a
physician. Convinced of the merits of the complaint
upon the evidence adduced, the trial court rendered
judgment favor of plaintiff Lazo and against defendant
Geluz, ordering the latter to pay P3,000.00 as damages,
P700.00 attorney's fees and the costs of the suit. On
appeal, Court of Appeals, in a special division of five,
sustained the award by a majority vote of three justices
as against two, who rendered a separate dissenting
opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant
(Antonio Geluz) for the first time in 1948
through her aunt Paula Yambot. In 1950 she
became pregnant by her present husband
before they were legally married. Desiring to
conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself
aborted by the defendant. After her marriage
with the plaintiff, she again became pregnant.
As she was then employed in the Commission
on Elections and her pregnancy proved to be
inconvenient, she had herself aborted again by
the defendant in October 1953. Less than two
years later, she again became pregnant. On
February 21, 1955, accompanied by her sister
Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on
Carriedo and P. Gomez streets in Manila, where
the three met the defendant and his wife. Nita
was again aborted, of a two-month old foetus, in
consideration of the sum of fifty pesos,
Philippine currency. The plaintiff was at this time
in the province of Cagayan, campaigning for his
election to the provincial board; he did not know
of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's
basis in filing this action and award of damages. Upon
application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the
award of damages in the sum of P3,000.06 upon the
provisions of the initial paragraph of Article 2206 of the
Civil Code of the Philippines. This we believe to be
error, for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the
case of an unborn foetus that is not endowed with
personality. Under the system of our Civil Code, "la
criatura abortiva no alcanza la categoria de persona
natural y en consscuencia es un ser no nacido a la vida
del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights
and obligations.
Since an action for pecuniary damages on account of
personal injury or death pertains primarily to the one
injured, it is easy to see that if no action for such
damages could be instituted on behalf of the unborn
child on account of the injuries it received, no such right
of action could derivatively accrue to its parents or
heirs. In fact, even if a cause of action did accrue on
30 | P a g e
behalf of the unborn child, the same was extinguished
by its pre-natal death, since no transmission to anyone
can take place from on that lacked juridical personality
(or juridical capacity as distinguished from capacity to
act). It is no answer to invoke the provisional personality
of a conceived child (conceptus pro nato habetur) under
Article 40 of the Civil Code, because that same article
expressly limits such provisional personality by
imposing the condition that the child should be
subsequently born alive: "provided it be born later with
the condition specified in the following article". In the
present case, there is no dispute that the child was
dead when separated from its mother's womb.
The prevailing American jurisprudence is to the same
effect; and it is generally held that recovery can not had
for the death of an unborn child (Stafford vs. Roadway
Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton,
52 Am. Rep. 242; and numerous cases collated in the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to
collect any damages at all. But such damages must be
those inflicted directly upon them, as distinguished from
the injury or violation of the rights of the deceased, his
right to life and physical integrity. Because the parents
can not expect either help, support or services from an
unborn child, they would normally be limited to moral
damages for the illegal arrest of the normal
development of the spes hominis that was the foetus,
i.e., on account of distress and anguish attendant to its
loss, and the disappointment of their parental
expectations (Civ. Code Art. 2217), as well as to
exemplary damages, if the circumstances should
warrant them (Art. 2230). But in the case before us,
both the trial court and the Court of Appeals have not
found any basis for an award of moral damages,
evidently because the appellee's indifference to the
previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was
unconcerned with the frustration of his parental hopes
and affections. The lower court expressly found, and the
majority opinion of the Court of Appeals did not
contradict it, that the appellee was aware of the second
abortion; and the probabilities are that he was likewise
aware of the first. Yet despite the suspicious repetition
of the event, he appeared to have taken no steps to
investigate or pinpoint the causes thereof, and secure
the punishment of the responsible practitioner. Even
after learning of the third abortion, the appellee does not
seem to have taken interest in the administrative and
criminal cases against the appellant. His only concern
appears to have been directed at obtaining from the
doctor a large money payment, since he sued for
P50,000.00 damages and P3,000.00 attorney's fees, an
"indemnity" claim that, under the circumstances of
record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have
aptly remarked that:
It seems to us that the normal reaction of a
husband who righteously feels outraged by the
abortion which his wife has deliberately sought
at the hands of a physician would be
highminded rather than mercenary; and that his
primary concern would be to see to it that the
medical profession was purged of an unworthy
member rather than turn his wife's indiscretion
to personal profit, and with that idea in mind to
press either the administrative or the criminal
cases he had filed, or both, instead of
abandoning them in favor of a civil action for
damages of which not only he, but also his wife,
would be the beneficiaries.
It is unquestionable that the appellant's act in provoking
the abortion of appellee's wife, without medical
necessity to warrant it, was a criminal and morally
reprehensible act, that can not be too severely
condemned; and the consent of the woman or that of
her husband does not excuse it. But the immorality or
illegality of the act does not justify an award of damage
that, under the circumstances on record, have no
factual or legal basis.
The decision appealed from is reversed, and the
complaint ordered dismissed. Without costs.
Let a copy of this decision be furnished to the
Department of Justice and the Board of Medical
Examiners for their information and such investigation
and action against the appellee Antonio Geluz as the
facts may warrant.
G.R. No. L-5426 May 29, 1953
RAMON JOAQUIN, petitioner,
vs.
ANTONIO C. NAVARRO, respondent.
Agrava, Peralta & Agrava for petitioner.
Leonardo Abola for respondent.
TUASON, J.:
This three proceedings was instituted in the Court of
First Instance of Manila in the summary settlement of
states of Joaquin Navarro, Sr., his wife Angela Joaquin
de Navarro, Joaquin Navarro, Jr., and Pilar Navarro,
deceased. All of them having been heard jointly, Judge
Rafael Amparo handed down a single decision which
was appealed to the Court of Appeals, whose decision,
modifying that the Court of First Instance, in turn was
elevated to the Supreme Court for review.
The main question represented in the first two courts
related to the sequence of the deaths of Joaquin
Navarro, Sr., his wife, and their children, all of whom
were killed in the massacre of civilians by Japanese
troops in Manila in February 1945. The trial court found
the deaths of this persons to have accurred in this
order: 1st. The Navarro girls, named Pilar, Concepcion
and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela
Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The
Court of Appeals concurred with the trial court except
that, with regard to Angela Joaquin de Navarro and
Joaquin Navarro, Jr., the latter was declared to have
survived his mother.
It is this modification of the lower court's finding which is
now being contested by the petitioner. The importance
of the question whether Angela Joaquin de Navarro
died before Joaquin Navarro, Jr., or vice versa, lies in
the fact that it radically affects the rights of succession
of Ramon Joaquin, the present petitioner who was an
acknowledged natural child of Angela Joaquin and
adopted child of the deceased spouses, and Antonio C.
Navarro, respondent, son of Joaquin Navarro, Sr. by
first marriage.
The facts, which is not disputed, are outlined in the
statement in the decision of the Court of Appeals as
follows:
"On February 6, 1945, while the battle for the liberation
of Manila was raging, the spouses Joaquin Navarro, Sr.
and Angela Joaquin, together with their three
daughters, Pilar, Concepcion, and Natividad, and their
son Joaquin Navarro, Jr., and the latter's wife, Adela
Conde, sought refuge in the ground floor of the building
31 | P a g e
known as the German Club, at the corner of San
Marcelino and San Luis Streets of this City. During their
stay, the building was packed with refugees, shells were
exploding around, and the Club was set on fire.
Simultaneously, the Japanese started shooting at the
people inside the building, especially those who were
trying to escape. The three daughters were hit and fell
of the ground near the entrance; and Joaquin Navarro,
Sr., and his son decided to abandon the premises to
seek a safer heaven. They could not convince Angela
Joaquin who refused to join them; and son Joaquin
Navarro, Sr., his son, Joaquin Navarro, Jr., and the
latter's wife, Angela Conde, and a friend and former
neighbor, Francisco Lopez, dashed out of the burning
edifice. As they came out, Joaquin Navarro, Jr. was
shot in the head by a Japanese soldier and immediately
dropped. The others lay flat on the ground in front of the
Club premises to avoid the bullets. Minutes later, the
German Club, already on fire, collapsed, trapping many
people inside, presumably including Angela Joaquin.
"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and
Francisco Lopez managed to reach an air raid shelter
nearby, the stayed there about three days, until
February 10, 1915, when they were forced to leave the
shelter be- cause the shelling tore it open. They flied
toward the St. Theresa Academy in San Marcelino
Street, but unfortunately met Japanese Patrols, who
fired at the refugees, killing Joaquin Navarro, Sr., and
his daughter-in-law.
"At the time of the masaccre, Joaquin Navarro, Sr. was
aged 70; his wife Angela Joaquin was about 67 years
old; Joaquin Navarro, Jr., about 30; Pilar Navarro was
two or three years older than her brother; while the
other sisters, Concepcion and Natividad Navarro y
Joaquin, were between 23 and 25."
The Court of Appeals' finding were all taken from the
testimony of Francisco Lopez, who miraculously
survived the holocaust, and upon them the Court of
Appeals opined that, "as between the mother Angela
Joaquin and the son Joaquin Navarro, Jr., the evidence
of the survivorship is uncertain and insufficient" and the
statutory presumption must be applied. The appellate
Court's reasoning for its conclusion is thus stated:
"It does not require argument to show that survivorship
cannot be established by proof of the death of only one
of the parties; but that there must be adequate proof
that one was alive when the other had already died.
Now in this case before us, the testimony of the sole
witness Lopez is to the effect that Joaquin Navarro, Jr.
was shot and died shortly after the living the German
Club in the company of his father and the witness, and
that the burning edified entirely collapsed minutes after
the shooting of the son; but there is not a scintilla of
evidence, direct or circumstantial, from which we may
infer the condition of the mother, Angela Joaquin, during
the appreciable interval from the instant his son turned
his back to her, to dash out to the Club, until he died. All
we can glean from the evidence is that Angela Joaquin
was unhurt when her son left her to escape from the
German Club; but she could have died almost
immediately after, from a variety of causes. She might
have been shot by the Japanese, like her daughters,
killed by falling beams from the burning edifice,
overcome by the fumes, or fatally struck by splinters
from the exploding shells. We cannot say for certain. No
evidence is available on the point. All we can decide is
that no one saw her alive after her son left her aside,
and that there is no proof when she died. Clearly, this
circumstance alone cannot support a finding that she
died latter than her son, and we are thus compelled to
fall back upon the statutory presumption. In deed, it
could be said that the purpose of the presumption of
survivorship would be precisely to afford a solution to
uncertainties like these. Hence the son Joaquin
Navarro, Jr. aged 30, must be deemed to have survived
his mother, Angela Joaquin, who was admittedly above
60 years of age (Rule 123, sec. 69, subsec. (ii), Rules
of Court).
"The total lack of evidence on how Angela Joaquin died
likewise disposes of the question whether she and her
deceased children perished in the same calamity. There
being no evidence to the contrary, the only guide is the
occasion of the deaths, which is identical for all of them;
that battle for the liberation of Manila. A second reason
is that the law, in declaring that those fallen in the same
battle are to be regarded as perishing in the same
calamity, could not overlooked that a variety of cause of
death can ( and usually do) operate in the source of
combats. During the same battle, some may die from
wounds, other from gages, fire, or drowning. It is clear
that the law disregards episodic details, and treats the
battle as an overall cause of death in applying the
presumption of survivorship.
"We are thus led the conclusion that the order in which
the members of the Navarro-Joaquin family met their
end is as follows: first, the three daughters Pilar,
Concepcion, and Natividad; then the mother Angela
Joaquin; then the son Joaquin Navarro, Jr., and days
later (of which there is no doubt), the father Joaquin
Navarro, Sr."
Much space in the briefs is taken in a discussion of
whether section 334(37) of Act No. 129, now section 69
(ii) of Rule 123 of the Rules of Court, has repealed
article 33 of the civil code of 1889, now article 43 of the
New Civil Code. It is the contention of the petitioner that
it did not, and that on the assumption that there is total
lack of evidence, as the Court of Appeals said, then
Angela Joaquin and Joaquin Navarro, Jr. should, under
article 33, be held to have died at the same time.
The point is not of much if any relevancy and will be left
open for the consideration when obsolute necessity
there for arises. We say irrelevant because our opinion
is that neither of the two provisions is applicable for the
reasons to be presently set forth.
Rule 123, section 69 (ii) of the Revised Rules of Court,
reads:
When two person perish in the same calamity,
such as wreck, battle or conflagration, and it is
not (1) shown who died first, and there are no
(2) particular circumstances from when it can be
inferred, the survivorship is presumed from the
probabilities resulting from the strength and
ages of the sexes, according to the following
rules:
xxx xxx xxx
Article 33 of the Civil Code of 1889 of the following
tenor:
Whenever a doubt arises as to which was the
first to die to the two or more persons who
would inherent one from the other, the persons
who alleges the prior death of either must prove
the allegation; in the absence of proof the
presumption shall be that they died at the same
time, and no transmission of rights from one to
the other shall take place.
Most provisions, as their language plainly implies, are
intended as a substitute for lacks and so are not to be
32 | P a g e
available when there are facts. With particular reference
to section 69 (ii) of Rule 123, "the situation which it
present is one in which the facts are not only unknown
but unknowable. By hypothesis, there is no specific
evidence as to the time of death . . . ." . . . it is assumed
that no evidence can be produced. . . . Since the facts
are unknown and unknowable, the law may apply the
law of fairness appropriate to the different legal situation
that arises." (IX Wigmore on Evidence, 1940 ed., 483.)
In In re Wallace's Estate, 220 Pac. 683, which the Court
of Appeals cited the applied with the respect to the
deaths of the Navarro girls, pointing out that "our rule is
taken from the Fourth Division of sec. 1936 of the
California Code of Civil Procedure," the Supreme Court
of California said:
When the statue speaks of "particular
circumstances from which it can be inferred"
that one died before the other it means that
there are circumstances from which the fact of
death by one before the other may be inferred
as a relation conclusion from the facts proven.
The statue does not mean circumstances which
would shown, or which would tend to show,
probably that one died before the other. Grand
Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96
Pac. 22. When by circumstantial evidence
alone, a party seeks to prove a survivorship
contrary to the statutory presumption, the
circumstances by which it is sought to prove the
survivorship must be such as are competent
and sufficient when tested by the general rules
of evidence in civil cases. The inference of
survivorship cannot rest upon mere surmise,
speculation, or conjecture. As was said in Grand
Lodge vs. Miller, supra, "if the matter is left to
probably, then the statue of the presumption."
It is manifest from the language of section 69 (ii) of Rule
123 and of that of the foregoing decision that the
evidence of the survivorship need not be direct; it may
be indirect, circumstantial, or inferential. Where there
are facts, known or knowable, from which a rational
conclusion can be made, the presumption does not step
in, and the rule of preponderance of evidence controls.
Are there particular circumstances on record from which
reasonable inference of survivorship between Angela
Joaquin and her son can be drawn? Is Francisco Lopez'
testimony competent and sufficient for this purpose?
For a better appreciation of this issue, it is convenient
and necessary to detail the testimony, which was
described by the trial court as "disinterested and
trustworthy" and by the Court of Appeals as "entitled to
credence."
Lopez testified:
Q. You said you were also heat at that time as
you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the
latter's wife?- A. Yes, sir.
Q. Did you fall? A. I fell down.
Q. And you said you fell down close to Joaquin
Navarro, Jr.? A. Yes, sir.
Q. When the German Club collapsed where
were you? A. We were out 15 meters away
from the building but I could see what was going
on.
xxx xxx xxx
 Q. Could there have been an interval of fifteen
minutes between the two events, that is the
shooting of Joaquin Navarro, Jr. and the
collapse of the German Club? A. Yes, sir, I
could not say exactly, Occasions like that, you
know, you are confused.
Q. Could there (have) been an interval of an
hour instead of fifteen minutes? A. Possible,
but not probable.
Q. Could it have been 40 minutes? A. Yes,
sir, about 40 minutes.
xxx xxx xxx
Q. You also know that Angela Joaquin is
already dead? A. Yes, sir.
Q. Can you tell the Honorable Court when did
Angela Joaquin die? A. Well, a few minutes
after we have dashed out, the German Club,
which was burning, collapsed over them,
including Mrs. Joaquin Navarro, Sr.
xxx xxx xxx
Q. From your testimony it would appear that
while you can give positive evidence to the fact
that Pilar, Concepcion and Natividad Navarro,
and Joaquin Navarro, Jr. died, you can not give
the same positive evidence to the fact that
Angela Joaquin also died? A. Yes, sir, in the
sense that I did not see her actually die, but
when the building collapsed over her I saw and I
am positive and I did not see her come out of
that building so I presumed she died there.
xxx xxx xxx
Q. Why did you have to dash out of the German
Club, you, Mr. Joaquin Navarro, Sr. and Mr.
Joaquin Navarro Jr. and the latter's wife? A.
Because the Japanese had set fire to the Club
and they were shooting people outside, so we
thought of running away rather than be roasted.
xxx xxx xxx
Q. You mean to say that before you jumped out
of the German Club all the Navarro girls, Pilar,
Concepcion, and Natividad, were already
wounded? A. to my knowledge, yes.
Q. They were wounded? A. Yes, sir.
Q. Were they lying on the ground or not? A.
On the ground near the entrance, because most
of the people who were shot by the Japanese
were those who were trying to escape, and as
far as I can remember they were among those
killed.
xxx xxx xxx
Q. So you noticed that they were killed or shot
by the Japanese a few minutes before you left
the place? A. That is what I think, because
those Japanese soldiers were shooting the
people inside especially those trying to escape.
xxx xxx xxx
33 | P a g e
Q. And none of them was not except the girls, is
that what you mean? A . There were many
people shot because they were trying to
escape.
xxx xxx xxx
Q. How come that these girls were shot when
they were inside the building, can you explain
that? A. They were trying to escape probably.
It is our opinion that the preceding testimony contains
facts quite adequate to solve the problem of
survivorship between Angela Joaquin and Joaquin
Navarro, Jr. and keep the statutory presumption out of
the case. It is believed that in the light of the conditions
painted by Lopez, a fair and reasonable inference can
be arrived at, namely: that Joaquin Navarro, Jr. died
before his mother.
While the possibility that the mother died before the son
can not be ruled out, it must be noted that this
possibility is entirely speculative and must yield to the
more rational deduction from proven facts that it was
the other way around. Joaquin Navarro, Jr., it will be
recalled, was killed, while running, in front of, and 15
meters from, the German Club. Still in the prime of life,
30, he must have negotiated that distance in five
seconds or less, and so died within that interval from
the time he dashed out of the building. Now, when
Joaquin Navarro, Jr. with his father and wife started to
flee from the clubhouse, the old lady was alive and
unhurt, so much so that the Navarro father and son tried
hard to have her come along. She could have perished
within those five or fewer seconds, as stated, but the
probabilities that she did seem very remote. True,
people in the building were also killed but these,
according to Lopez, were mostly refugees who had tried
to slip away from it and were shot by Japanese troops.
It was not very likely that Mrs. Joaquin Navarro, Sr.
made an attempt to escape. She even made frantic
efforts to dissuade her husband and son from leaving
the place and exposing themselves to gun fire.
This determination of Mrs. Angela Joaquin to stay
where she was may well give an idea, at the same time,
of a condition of relative safety in the clubhouse at the
moment her husband, son, and daughter-in-law left her.
It strongly tends to prove that, as the situation looked to
her, the perils of death from staying were not so
imminent. And it lends credence to Mr. Lopez'
statement that the collapse of the clubhouse occurred
about 40 minutes after Joaquin Navarro the son was
shot in the head and dropped dead, and that it was the
collapse that killed Mrs. Angela Navarro. The Court of
Appeals said the interval between Joaquin Navarro's
death and the breaking down of the edifice was
"minutes". Even so, it was much longer than five
seconds, long enough to warrant the inference that Mrs.
Angela Joaquin was sill alive when her son expired
The Court of Appeals mentioned several causes,
besides the collapse of the building, by which Mrs.
Navarro could have been killed. All these are
speculative , and the probabilities, in the light of the
known facts, are against them. Dreading Japanese
sharpshooters outside as evidenced by her refusal to
follow the only remaining living members of her family,
she could not have kept away form protective walls.
Besides, the building had been set on fire trap the
refugees inside, and there was no necessity for the
Japanese to was their ammunition except upon those
who tried to leave the premises. Nor was Angela
Joaquin likely to have been killed by falling beams
because the building was made of concrete and its
collapse, more likely than not, was sudden. As to
fumes, these do not cause instantaneous death;
certainly not within the brief space of five seconds
between her son's departure and his death.
It will be said that all this is indulging in inferences that
are not conclusive. Section 69(ii) of Rule 123 does not
require that the inference necessary to exclude the
presumption therein provided be certain. It is the
"particular circumstances from which it (survivorship)
can be inferred" that are required to be certain as tested
by the rules of evidence. In speaking of inference the
rule can not mean beyond doubt, for "inference is never
certainty, but if may be plain enough to justify a finding
of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427,
citing Tortora vs. State of New York, 269 N.Y. 199 N.E.
44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.)
As the California courts have said, it is enough that "the
circumstances by which it is sought to prove the
survivorship must be such as are competent and
sufficient when tested by the general rules of evidence
in civil cases." (In re Wallace's Estate, supra.) "Juries
must often reason," says one author, "according
to probabilities, drawing an inference that the main fact
in issue existed from collateral facts not directly proving,
but strongly tending to prove, its existence. The vital
question in such cases is the cogency of the proof
afforded by the secondary facts. How likely, according
to experience, is the existence of the primary fact if
certain secondary facts exist?" (1 Moore on Facts, Sec.
596.) The same author tells us of a case where "a jury
was justified in drawing the inference that the person
who was caught firing a shot at an animal trespassing
on his land was the person who fired a shot about an
hour before at the same animal also trespassing." That
conclusion was not airtight, but rational. In fact, the
circumstances in the illustration leave greater room for
another possibility than do the facts of the case at hand.
In conclusion the presumption that Angela Joaquin de
Navarro died before her son is based purely on
surmises, speculations, or conjectures without any sure
foundation in the evidence. the opposite theory that
the mother outlived her son is deduced from
established facts which, weighed by common
experience, engender the inference as a very strong
probability. Gauged by the doctrine of preponderance of
evidence by, which civil cases are decided, this
inference ought to prevail. It can not be defeated as in
an instance, cited by Lord Chief Justice Kenyon,
"bordering on the ridiculous, where in an action on the
game laws it was suggested that the gun with which the
defendant fired was not charged with shot, but that the
bird might have died in consequence of the fright." (1
Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R.
468.)
It is said that part of the decision of the Court of Appeals
which the appellant impugns, and which has been
discussed, involves findings of fact which can not be
disturbed. The point is not, in our judgment, well
considered. The particular circumstances from which
the parties and the Court of Appeals drew conclusions
are, as above seen, undisputed, and this being the
case, the correctness or incorrectness of those
conclusions raises a question of law, not of fact, which
the Supreme Court has jurisdiction to look into. As was
said in 1 Moran Commentaries on the Rules of ?Court,
3rd Ed. 856, 857, "Undisputed evidence is one thing,
and contradicted evidence is another. An incredible
witness does not cease to be such because he is not
impeached or contradicted. But when the evidence is
purely documentary, the authenticity of which is not
questioned and the only issue is the construction to be
placed thereon, or where a case is submitted upon an
agreement of facts, or where all the facts are stated in
the judgment and the issue is the correctness of the
34 | P a g e
conclusions drawn therefrom, the question is one of law
which may be reviewed by the Supreme Court."
The question of whether upon given facts the operation
of the statutory presumption is to be invoked is a
question of law.
The prohibition against intermeddling with decisions on
questions of evidence refers to decisions supported by
substantial evidence. By substantial evidence is meant
real evidence or at least evidence about which
reasonable men may disagree. Findings grounded
entirely on speculations, surmises, or conjectures come
within the exception to the general rule.
We are constrained to reverse the decision under
review, and hold that the distribution of the decedents'
estates should be made in accordance with the decision
of the trial court. This result precludes the necessity of
passing upon the question of "reserva troncal" which
was put forward on the hypothetical theory that Mrs.
Joaquin Navarro's death preceded that of her son.
Without costs.
G.R. No. 84992 December 15,1989
PHILIPPINE ROCK INDUSTRIES, INC. petitioner,
vs.
BOARD OF LIQUIDATORS, as Liquidator of the
defunct REPARATIONS COMMISSION, respondents.
GRIO-AQUINO, J.:
In its decision dated March 21, 1987 in CA-G.R. SP No.
12017, the Court of appeals set aside the decision and
order of execution pending appeal which the Regional
Trial Court of Manila issued in favor of the Philippine
Rock Industries (Philrock for brevity) in Civil Case No.
82-11394, authorizing the immediate execution of its
decision against the funds deposited in the Philippine
National Bank (PNB) of the respondent Board of
Liquidators as liquidator of the defunct Reparations
Commission (REPACOM for brevity).
On July 30, 1982, PHILROCK filed in the Regional Trial
Court of Manila, Branch 38, a complaint against the
Board of Liquidators for Specific Performance or
Revaluation with Damages, praying that the defective
rock pulverizing machinery which it purchased from
REPACOM be replaced with a new one in good and
operable condition according to the specifications of
their contract, or, in the alternative, to refund the value
of the defective rock pulverizing machinery at 31 % of
its contract price. PHILROCK also prayed for actual
damages of P 5,000 per month for losses it allegedly
incurred due to the increased expenses of maintaining
the plant, P 4,000 per day as unrealized profits,
exemplary damages, attorney fees of P 50,000, plus
expenses and costs of the suit.
The Board of Liquidators, in its Answer with
Counterclaim, alleged that REPACOM effected
complete delivery of the machinery and equipment to
PHILROCK but no demand was made regarding any
hidden defect; that the machinery and equipment were
inspected by reputable companies pursuant to the
Reparations Law, and the performance of the plant was
reported to be satisfactory at the time of delivery to
PHILROCK; that PHILROCK failed to pay the first
installment of the equipment but a repossession was
deferred, and the contractor/supplier was required to
make the necessary repairs; that the defect was
attributed to PHILROCK's improper use of the
machinery; and that PHILROCK is now in estoppel and
guilty of laches for not calling REPACOM's attention to
the alleged defects within the equipment's warranty
period. In its counterclaim, the Board demanded
payment by PHILROCK of the first ten (10)
amortizations in the sum of P 284,242, expenses of
litigation, moral and exemplary damages and costs (pp.
62-63, Rollo).
On April 23, 1987, the trial court rendered a decision in
favor of PHILROCK and ordered REPACOM and the
Board of Liquidators-
1. To reimburse Plaintiff Philrock for the
expenses it had invested and incurred in
connection with its purchase of the said
rock pulverizing plant from REPACOM
in the total amount of P l02,837.66;
2. To pay Plaintiff Philrock
compensatory damages for unrealized
profits from May, 1966 and up to
December 31, 1983 in the amount of P
33,896,844.47;
3. To pay Plaintiff Philrock the amount of
P 671,925.32 as reimbursement for the
expenses incurred in storage and
maintenance of the rock pulverizing
plant at Philrock's plant site from June 1,
1966 up to December 31, 1982;
4. To pay Plaintiff Philrock exemplary
damages of P 200,000.00;
5. To pay Plaintiff Philrock's (sic)
Attorney's fee of P 50,000.00;
6. To pay the costs of this suit. (p. 64,
Rollo.)
On May 5, 1987, PHILROCK filed an urgent motion for
execution pending appeal (p. 64, Rollo).
On May 14, 1987, the Solicitor General, on behalf of the
State, filed a notice of appeal and an opposition to the
"Motion for Execution Pending Appeal" on the ground
that the funds sought to be garnished by PHILROCK
are public funds, hence, exempt from attachment and
execution (p. 66, Rollo).
On May 19, 1987, Judge Natividad Adduru-Santillan
issued a Writ of Execution. An order of Garnishment
was served to PNB against the funds of REPACOM in
the account of the Board of Liquidators to satisfy the
judgment of P 34,894,607.45 in favor of PHILROCK (p.
68, Rollo).
On May 25, 1987, the Board filed a petition for certiorari
and prohibition in the Court of Appeals.
On March 21, 1988, the Court of Appeals set aside the
trial court's order of execution. It held that:
... the funds deposited by the Board of
Liquidators in the Philippine National
Bank may not be garnished to satisfy a
money judgment against the petitioner
as these funds are public funds. (p. 7,
Rollo.)
PHILROCK filed this petition for review.
The issue raised in the petition is whether the funds of
REPACOM in the account of the Board of Liquidators in
35 | P a g e
the Philippine National Bank may be garnished to
satisfy a money judgment against the BOARD.
PHILROCK relies on Executive Order No. 629, Series
of 1980, which abolished REPACOM effective
December 31, 1980, and authorized the Board of
Liquidators to undertake the liquidation of the remaining
assets and outstanding liabilities of REPACOM.
Executive Order 635-A, amplifying the said authority of
the Board, expressly decreed:
3. Subject to the provisions of existing
laws and with the approval of the
President of the Philippines, the Board
of Liquidators shall sell, lease, transfer,
assign or otherwise dispose of the
assets of the REPACOM and from the
proceeds thereof pay, in accordance
with the priorities established by law, all
outstanding obligations of the
REPACOM including the operational
expenses of the REPACOM Residual
Force. (Annex E, p. 32, Rollo.)
PHILROCK contends that the proceeds from the
disposal of the assets of REPACOM are "funds
appropriated by law" for the specific purpose of paying
the liabilities of REPACOM preparatory to its permanent
closure (pp. 15-16, Rollo).
The argument is not well taken. The Board of
Liquidators is a government agency under the direct
supervision of the President of the Republic created by
EO 372, dated November 24, 1950 (p. 39, Rollo).
Pursuant to PDs Nos. 629 and 635-A, it is tasked with
the specific duty of administering the assets and paying
the liabilities of the defunct REPACOM. It was not
created for profit or to engage in business. Hence, when
a suit is directed against said unincorporated
government agency which, because it is
unincorporated, possesses no juridical personality of its
own, the suit is against the agency's principal, i.e., the
State.
On the other hand, if the Government conducts a
business through either a government-owned and
controlled corporation or a non- corporate agency set
up primarily for a business purpose, the entity enjoys no
immunity from suit even if there is no express grant of
authority to "sue or be sued." Having a juridical
personality separate and distinct from the government,
the funds of such government-owned and controlled
corporation and non-corporate agency, although
considered public in character, are not exempt from
garnishment. This doctrine was applied to suits filed
against the Philippine Virginia Tobacco Administration
(PNB vs. Pabalan, et al., 83 SCRA 595); the National
Shipyard & Steel Corporation (NASSCO vs. CIR, 118
Phil. 782); the Manila Hotel Company (Manila Hotel
Employees Asso. vs. Manila Hotel Co., 73 Phil. 374);
and the People's Homesite and Housing Corporation
(PNB vs. CIR, 81 SCRA 314).
The sale of the rock pulverizing plant to PHILROCK by
the Board of liquidators, although proprietary in nature
was merely incidental to the performance of the Board's
primary and governmental function of settling and
closing the affairs of the REPACOM. Hence, its funds in
the Philippine National Bank are public funds which are
exempt from garnishment (p. 75, Rollo). This Court so
ruled in Commission of public Highways vs. San Diego
(31 SCRA 616):
All government funds deposited with
PNB by any agency or instrumentality of
the government, whether by way of
 general or special deposit, remain
government funds, since such
government agencies or
instrumentalities do not have any non-
public or private funds of their own.
They are not subject to garnishment or
levy; even assuming that the funds
become commingled with other funds of
the bank, this does not remove the
character of the fund as a credit
representing government funds thus
deposited. (Emphasis supplied.)
It should be mentioned that when the State consents to
be sued, it does not necessarily concede its liability. By
consenting to be sued, it waives its immunity from suit,
but it does not waive its lawful defenses to the action
(Meritt vs. Government, 31 SCRA 311, 318). Even
when the government has been adjudged liable in a suit
to which it has consented, it does not necessarily follow
that the judgment can be enforced by execution against
its hands for, as we held in Republic vs. Villasor, 54
SCRA 84, every disbursement of public funds must be
covered by a corresponding appropriation passed by
the Legislature:
... where the State gives its consent to
be sued by private parties either by
general or special law, it may limit
claimant's action' only up to the
completion of proceedings anterior to
the state of execution' and that the
powers of the Courts ends when the
judgment is rendered, since government
funds and properties may not be seized
under writs of execution or garnishment
to satisfy such judgments. ...
Disbursements of public funds must be
covered by the corresponding
appropriation as required by law. The
functions and public services rendered
by the State cannot be allowed to be
paralyzed or disrupted by the diversion
of public funds from their legitimate and
specific objects, as appropriated by law.
(p. 87.)
A judgment against the State, in a case where it
consents to be sued, simply implies that the Legislature
will recognize the judgment as final and make provision
for its satisfaction. The decision of this Court in Republic
vs. Palacio, 23 SCRA 899 is relevant:
The pump irrigation trust fund, deposited
with the Philippine National Bank in the
account of the Irrigation Service Unit,
may not be garnished to satisfy a
money-judgment against the latter. It
needs no stressing that to allow the
levying under execution of the Irrigation
Service funds would amount to diverting
them from the purpose originally
contemplated by the P.I.-U.S. Bilateral
Agreement, and would amount to a
disbursement without any proper
appropriation as required by law.
Even though the rule as to immunity of a
state from suit is relaxed, the power of
the courts ends when the judgment is
rendered. Although the liability of the
state has been judicially ascertained,
the state is at liberty to determine for
itself whether to pay the judgment or
not, and execution can not issue on a
judgment against the state. Such
36 | P a g e
statutes do not authorize a seizure of
state property to satisfy judgments
recovered, and only convey an
implication that the legislature will
recognize such judgment as final and
make provision for the satisfaction
thereof (49 Am. Jur., Sec. 104, pp. 312-
320).
Executive Order 635 A. s. 1980, is not an appropriation
law. Appropriations of public funds must emanate from
the legislature, not from the Chief Executive (Secs. 2-4,
Article VI, Constitution).
The Court of appeals correctly annulled and set aside
the writs of execution and garnishment issued by the
trial court against the funds of the Board of Liquidators
in the PNB. Funds should be appropriated by the
legislature for the specific purpose of satisfying the
judgment in favor of PHILROCK before said judgment
may be paid.
WHEREFORE, the decision of the Court of appeals is
affirmed in toto. The order of garnishment served by the
Sheriff of Manila against REPACOM's funds in the
account of the Board of Liquidators in the Philippine
National Bank, is hereby declared null and void. No
costs.
SO ORDERED.
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA
UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-
BANIA, IAUREANO BANIA, JR., SOR MARIETA
BANIA, MONTANO BANIA, ORJA BANIA, AND
LYDIA R. BANIA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the
issuance of a writ of preliminary mandatory injunction
seeking the nullification or modification of the
proceedings and the orders issued by the respondent
Judge Romeo N. Firme, in his capacity as the presiding
judge of the Court of First Instance of La Union, Second
Judicial District, Branch IV, Bauang, La Union in Civil
Case No. 107-BG, entitled "Juana Rimando Bania, et
al. vs. Macario Nieveras, et al." dated November 4,
1975; July 13, 1976; August 23,1976; February 23,
1977; March 16, 1977; July 26, 1979; September 7,
1979; November 7, 1979 and December 3, 1979 and
the decision dated October 10, 1979 ordering
defendants Municipality of San Fernando, La Union and
Alfredo Bislig to pay, jointly and severally, the plaintiffs
for funeral expenses, actual damages consisting of the
loss of earning capacity of the deceased, attorney's
fees and costs of suit and dismissing the complaint
against the Estate of Macario Nieveras and Bernardo
Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a
municipal corporation existing under and in accordance
with the laws of the Republic of the Philippines.
Respondent Honorable Judge Romeo N. Firme is
impleaded in his official capacity as the presiding judge
of the Court of First Instance of La Union, Branch IV,
Bauang, La Union. While private respondents Juana
Rimando-Bania, Laureano Bania, Jr., Sor Marietta
Bania, Montano Bania, Orja Bania and Lydia R.
Bania are heirs of the deceased Laureano Bania Sr.
and plaintiffs in Civil Case No. 107-Bg before the
aforesaid court.
At about 7 o'clock in the morning of December 16,
1965, a collision occurred involving a passenger
jeepney driven by Bernardo Balagot and owned by the
Estate of Macario Nieveras, a gravel and sand truck
driven by Jose Manandeg and owned by Tanquilino
Velasquez and a dump truck of the Municipality of San
Fernando, La Union and driven by Alfredo Bislig. Due to
the impact, several passengers of the jeepney including
Laureano Bania Sr. died as a result of the injuries they
sustained and four (4) others suffered varying degrees
of physical injuries.
On December 11, 1966, the private respondents
instituted a compliant for damages against the Estate of
Macario Nieveras and Bernardo Balagot, owner and
driver, respectively, of the passenger jeepney, which
was docketed Civil Case No. 2183 in the Court of First
Instance of La Union, Branch I, San Fernando, La
Union. However, the aforesaid defendants filed a Third
Party Complaint against the petitioner and the driver of
a dump truck of petitioner.
Thereafter, the case was subsequently transferred to
Branch IV, presided over by respondent judge and was
subsequently docketed as Civil Case No. 107-Bg. By
virtue of a court order dated May 7, 1975, the private
respondents amended the complaint wherein the
petitioner and its regular employee, Alfredo Bislig were
impleaded for the first time as defendants. Petitioner
filed its answer and raised affirmative defenses such as
lack of cause of action, non-suability of the State,
prescription of cause of action and the negligence of the
owner and driver of the passenger jeepney as the
proximate cause of the collision.
In the course of the proceedings, the respondent judge
issued the following questioned orders, to wit:
(1) Order dated November 4, 1975 dismissing
the cross-claim against Bernardo Balagot;
(7) Order dated September 7, 1979 denying the
petitioner's motion for reconsideration and/or
order to recall prosecution witnesses for cross
examination.
On October 10, 1979 the trial court rendered a decision,
the dispositive portion is hereunder quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING,
judgment is hereby rendered for the plaintiffs,
and defendants Municipality of San Fernando,
La Union and Alfredo Bislig are ordered to pay
jointly and severally, plaintiffs Juana Rimando-
Bania, Mrs. Priscilla B. Surell, Laureano
Bania Jr., Sor Marietta Bania, Mrs. Fe B.
Soriano, Montano Bania, Orja Bania and
Lydia B. Bania the sums of P1,500.00 as
funeral expenses and P24,744.24 as the lost
expected earnings of the late Laureano Bania
Sr., P30,000.00 as moral damages, and
P2,500.00 as attorney's fees. Costs against said
defendants.
The Complaint is dismissed as to defendants
Estate of Macario Nieveras and Bernardo
Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a
new trial without prejudice to another motion which was
then pending. However, respondent judge issued
another order dated November 7, 1979 denying the
motion for reconsideration of the order of September 7,
1979 for having been filed out of time.
Finally, the respondent judge issued an order dated
December 3, 1979 providing that if defendants
municipality and Bislig further wish to pursue the matter
disposed of in the order of July 26, 1979, such should
be elevated to a higher court in accordance with the
Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge
committed grave abuse of discretion amounting to
excess of jurisdiction in issuing the aforesaid orders and
in rendering a decision. Furthermore, petitioner asserts
that while appeal of the decision maybe available, the
same is not the speedy and adequate remedy in the
ordinary course of law.

(2) Order dated July 13, 1976 admitting the
Amended Answer of the Municipality of San
Fernando, La Union and Bislig and setting the
hearing on the affirmative defenses only with
respect to the supposed lack of jurisdiction;
(3) Order dated August 23, 1976 deferring there
resolution of the grounds for the Motion to
Dismiss until the trial;
(4) Order dated February 23, 1977 denying the
motion for reconsideration of the order of July
13, 1976 filed by the Municipality and Bislig for
having been filed out of time;
(5) Order dated March 16, 1977 reiterating the
denial of the motion for reconsideration of the
order of July 13, 1976;
(6) Order dated July 26, 1979 declaring the
case deemed submitted for decision it
appearing that parties have not yet submitted
their respective memoranda despite the court's
direction; and
On the other hand, private respondents controvert the
position of the petitioner and allege that the petition is
devoid of merit, utterly lacking the good faith which is
indispensable in a petition for certiorari and prohibition.
(Rollo, p. 42.) In addition, the private respondents stress
that petitioner has not considered that every court,
including respondent court, has the inherent power to
amend and control its process and orders so as to
make them conformable to law and justice. (Rollo, p.
43.)
The controversy boils down to the main issue of
whether or not the respondent court committed grave
abuse of discretion when it deferred and failed to
resolve the defense of non-suability of the State
amounting to lack of jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the
resolution of the defense of non-suability of the State
amounting to lack of jurisdiction until trial. However, said
respondent judge failed to resolve such defense,
proceeded with the trial and thereafter rendered a
decision against the municipality and its driver.

37 | P a g e
The respondent judge did not commit grave abuse of
discretion when in the exercise of its judgment it
arbitrarily failed to resolve the vital issue of non-suability
of the State in the guise of the municipality. However,
said judge acted in excess of his jurisdiction when in his
decision dated October 10, 1979 he held the
municipality liable for the quasi-delict committed by its
regular employee.
The doctrine of non-suability of the State is expressly
provided for in Article XVI, Section 3 of the Constitution,
to wit: "the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the
State may not be sued except when it gives consent to
be sued. Consent takes the form of express or implied
consent.
Express consent may be embodied in a general law or
a special law. The standing consent of the State to be
sued in case of money claims involving liability arising
from contracts is found in Act No. 3083. A special law
may be passed to enable a person to sue the
government for an alleged quasi-delict, as in Merritt v.
Government of the Philippine Islands (34 Phil 311). (see
United States of America v. Guinto, G.R. No. 76607,
February 26, 1990, 182 SCRA 644, 654.)
Consent is implied when the government enters into
business contracts, thereby descending to the level of
the other contracting party, and also when the State
files a complaint, thus opening itself to a counterclaim.
(Ibid)
Municipal corporations, for example, like provinces and
cities, are agencies of the State when they are engaged
in governmental functions and therefore should enjoy
the sovereign immunity from suit. Nevertheless, they
are subject to suit even in the performance of such
functions because their charter provided that they can
sue and be sued. (Cruz, Philippine Political Law, 1987
Edition, p. 39)
A distinction should first be made between suability and
liability. "Suability depends on the consent of the state
to be sued, liability on the applicable law and the
established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on the
other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the
mere fact that the state has allowed itself to be sued.
When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that
the defendant is liable." (United States of America vs.
Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is
liable for the torts committed by its employee, the test of
liability of the municipality depends on whether or not
the driver, acting in behalf of the municipality, is
performing governmental or proprietary functions. As
emphasized in the case of Torio vs. Fontanilla (G. R.
No. L-29993, October 23, 1978. 85 SCRA 599, 606),
the distinction of powers becomes important for
purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to third
persons.
Another statement of the test is given in City of Kokomo
vs. Loy, decided by the Supreme Court of Indiana in
1916, thus:
Municipal corporations exist in a dual capacity,
and their functions are twofold. In one they
exercise the right springing from sovereignty,
and while in the performance of the duties
38 | P a g e
pertaining thereto, their acts are political and
governmental. Their officers and agents in such
capacity, though elected or appointed by them,
are nevertheless public functionaries performing
a public service, and as such they are officers,
agents, and servants of the state. In the other
capacity the municipalities exercise a private,
proprietary or corporate right, arising from their
existence as legal persons and not as public
agencies. Their officers and agents in the
performance of such functions act in behalf of
the municipalities in their corporate or individual
capacity, and not for the state or sovereign
power." (112 N.E., 994-995) (Ibid, pp. 605-606.)
It has already been remarked that municipal
corporations are suable because their charters grant
them the competence to sue and be sued.
Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental
functions and can be held answerable only if it can be
shown that they were acting in a proprietary capacity. In
permitting such entities to be sued, the State merely
gives the claimant the right to show that the defendant
was not acting in its governmental capacity when the
injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant
cannot recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the
municipality insists that "he was on his way to the
Naguilian river to get a load of sand and gravel for the
repair of San Fernando's municipal streets." (Rollo, p.
29.)
In the absence of any evidence to the contrary, the
regularity of the performance of official duty is
presumed pursuant to Section 3(m) of Rule 131 of the
Revised Rules of Court. Hence, We rule that the driver
of the dump truck was performing duties or tasks
pertaining to his office.
We already stressed in the case of Palafox, et. al. vs.
Province of Ilocos Norte, the District Engineer, and the
Provincial Treasurer (102 Phil 1186) that "the
construction or maintenance of roads in which the truck
and the driver worked at the time of the accident are
admittedly governmental activities."
After a careful examination of existing laws and
jurisprudence, We arrive at the conclusion that the
municipality cannot be held liable for the torts
committed by its regular employee, who was then
engaged in the discharge of governmental functions.
Hence, the death of the passenger tragic and
deplorable though it may be imposed on the
municipality no duty to pay monetary compensation.
All premises considered, the Court is convinced that the
respondent judge's dereliction in failing to resolve the
issue of non-suability did not amount to grave abuse of
discretion. But said judge exceeded his jurisdiction
when it ruled on the issue of liability.
ACCORDINGLY, the petition is GRANTED and the
decision of the respondent court is hereby modified,
absolving the petitioner municipality of any liability in
favor of private respondents.
SO ORDERED.
G.R. No. L-33172 October 18, 1979
ERNESTO CEASE, CECILIA CEASE, MARION
CEASE, TERESA CEASE-LACEBAL and the F.L.
CEASE PLANTATION CO., INC. as Trustee of
properties of the defunct TIAONG MILLING &
PLANTATION CO., petitioners,
vs.
HONORABLE COURT OF APPEALS, (Special
Seventh Division), HON. MANOLO L. MADDELA,
Presiding Judge, Court of First Instance of Quezon,
BENJAMIN CEASE and FLORENCE
CEASE, respondents.
GUERRERO, J:
Appeal by certiorari from the decision of the Court of
Appeals in CA-G.R. No. 45474, entitled "Ernesto
Cease, et al. vs. Hon. Manolo L. Maddela, Judge of the
Court of First Instance of Quezon, et al." 1 which
dismissed the petition for certiorari, mandamus, and
prohibition instituted by the petitioners against the
respondent judge and the private respondents.
The antecedents of the case, as found by the appellate
court, are as follows:
IT RESULTING: That the antecedents
are not difficult to understand; sometime
in June 1908, one Forrest L. Cease
common predecessor in interest of the
parties together with five (5) other
American citizens organized the Tiaong
Milling and Plantation Company and in
the course of its corporate existence the
company acquired various properties
but at the same time all the other
original incorporators were bought out
by Forrest L. Cease together with his
children namely Ernest, Cecilia,
Teresita, Benjamin, Florence and one
Bonifacia Tirante also considered a
member of the family; the charter of the
company lapsed in June 1958; but
whether there were steps to liquidate it,
the record is silent; on 13 August 1959,
Forrest L. Cease died and by
extrajudicial partition of his shares,
among the children, this was disposed
of on 19 October 1959; it was here
where the trouble among them came to
arise because it would appear that
Benjamin and Florence wanted an
actual division while the other children
wanted reincorporation; and proceeding
on that, these other children Ernesto,
Teresita and Cecilia and
aforementioned other stockholder
Bonifacia Tirante proceeded to
incorporate themselves into the F.L.
Cease Plantation Company and
registered it with the Securities and
Exchange Commission on 9 December,
1959; apparently in view of that,
Benjamin and Florence for their part
initiated a Special Proceeding No. 3893
of the Court of First Instance of Tayabas
for the settlement of the estate of Forest
L. Cease on 21 April, 1960 and one
month afterwards on 19 May 1960 they
filed Civil Case No. 6326 against
Ernesto, Teresita and Cecilia Cease
together with Bonifacia Tirante asking
that the Tiaong Milling and Plantation
Corporation be declared Identical to F.L.
Cease and that its properties be divided
among his children as his intestate
heirs; this Civil Case was resisted by
39 | P a g e
aforestated defendants and
notwithstanding efforts of the plaintiffs to
have the properties placed under
receivership, they were not able to
succeed because defendants filed a
bond to remain as they have remained
in possession; after that and already,
during the pendency of Civil Case No.
6326 specifically on 21 May, 1961
apparently on the eve of the expiry of
the three (3) year period provided by the
law for the liquidation of corporations,
the board of liquidators of Tiaong Milling
executed an assignment and
conveyance of properties and trust
agreement in favor of F.L. Cease
Plantation Co. Inc. as trustee of the
Tiaong Milling and Plantation Co. so
Chat upon motion of the plaintiffs trial
Judge ordered that this alleged trustee
be also included as party defendant;
now this being the situation, it will be
remembered that there were thus two
(2) proceedings pending in the Court of
First Instance of Quezon namely Civil
Case No. 6326 and Special Proceeding
No. 3893 but both of these were
assigned to the Honorable Respondent
Judge Manolo L. Maddela p. 43 and the
case was finally heard and submitted
upon stipulation of facts pp, 34-110,
rollo; and trial Judge by decision dated
27 December 1969 held for the plaintiffs
Benjamin and Florence, the decision
containing the following dispositive part:
VIEWED IN THE LIGHT
OF ALL THE
FOREGOING, judgment
is hereby rendered in
favor of plaintiffs and
against the defendants
declaring that:
1) The assets or
properties of the defunct
Tiaong Milling and
Plantation Company now
appearing under the
name of F.L. Cease
Plantation Company as
Trustee, is the estate
also of the deceased
Forrest L. Cease and
ordered divided, share
and share alike, among
his six children the
plaintiffs and the
defendants in
accordance with Rule
69, Rules of Court;
2) The Resolution to Sell
dated October 12, 1959
and the Transfer and
Conveyance with Trust
Agreement is hereby set
aside as improper and
illegal for the purposes
and effect that it was
intended and, therefore,
null and void;
3) That F.L. Cease
Plantation Company is
removed as 'Trustee for
 interest against the appealed dated 27 December, 1969
estate and essential to was interlocutory and not appealable but
the protection of on motion for reconsideration of
plaintiffs' rights and is petitioners and since there was possible
hereby ordered to deliver merit so far as its prayer for certiorari
and convey all the and prohibition was concerned, by
properties and assets of resolution of the Court on 19 August,
the defunct Tiaong 1970, p. 232, the petition was permitted
Milling now under its to go ahead in that capacity; and it is the
name, custody and position of petitioners that the decision
control to whomsoever of 27 December, 1969 as well as the
be appointed as order of 27 April, 1970 suffered of
Receiver - disqualifying certain fatal defects, which respondents
and of the parties herein deny and on their part raise the
- the latter to act preliminary point that this Court of
accordingly upon proper Appeals has no authority to give relief to
assumption of office; and petitioners because not

4) Special Proceedings in aid of its appellate jurisdiction,

No. 3893 for
administration is and that the questions presented cannot
terminated and be raised for the first time before this
dismissed; the instant Court of Appeals;
case to proceed but on
issues of damages only Respondent Court of Appeals in its decision
and for such action promulgated December 9, 1970 dismissed the petition
inherently essential for with costs against petitioners, hence the present petition
partition. to this Court on the following assignment of errors:

SO ORDERED. THE COURT OF APPEALS ERRED -

Lucena City, December I. IN SANCTIONING THE WRONGFUL EXERCISE OF

27, 1969., pp. 122-a-
123, rollo.
upon receipt of that, defendants there
filled a notice of appeal p. 129, rollo
together with an appeal bond and a
record on appeal but the plaintiffs
moved to dismiss the appeal on the
ground that the judgment was in fact
interlocutory and not appealable p. 168
rollo and this position of defendants was
sustained by trial Judge, His Honor
ruling that
IN VIEW OF THE
FOREGOING, the
appeal interposed by
plaintiffs is hereby
dismissed as premature
and the Record on
Appeal is necessarily
disapproved as improper
at this stage of the
proceedings.
SO ORDERED.
Lucena City, April 27,
1970.
and so it was said defendants brought
the matter first to the Supreme Court, on
mandamus on 20 May, 1970 to compel
the appeal and certiorari and prohibition
to annul the order of 27 April, 1970 on
the ground that the decision was
"patently erroneous" p. 16, rollo; but the
Supreme Court remanded the case to
this Court of Appeals by resolution of 27
May 1970, p. 173, and this Court of
Appeals on 1 July 1970 p. 175
dismissed the petition so far as the
mandamus was concerned taking the
view that the decision sought to be
40 | P a g e
JURISDICTION BEYOND THE LIMITS OF
AUTHORITY CONFERRED BY LAW UPON THE
LOWER COURT, WHEN IT PROCEEDED TO HEAR,
ADJUDGE AND ADJUDICATE -
(a) Special Proceedings No. 3893 for
the settlement of the Estate of Forrest L.
Cease, simultaneously and concurrently
with -
(b) Civil Case No. 6326, wherein the
lower Court ordered Partition under Rule
69, Rules of Court -
THE ISSUE OF LEGAL OWNERSHIP OF THE
PROPERTIES COMMONLY INVOLVED IN BOTH
ACTIONS HAVING BEEN RAISED AT THE OUTSET
BY THE TIAONG MILLING AND PLANTATION
COMPANY, AS THE REGISTERED OWNER OF
SUCH PROPERTIES UNDER ACT 496.
II. IN AFFIRMING - UNSUPPORTED BY ANY
EVIDENCE WHATSOEVER NOR CITATION OF ANY
LAW TO JUSTIFY - THE UNWARRANTED
CONCLUSION THAT SUBJECT PROPERTIES,
FOUND BY THE LOWER COURT AND THE COURT
OF APPEALS AS ACTUALLY REGISTERED IN THE
NAME OF PETITIONER CORPORATION AND/OR ITS
PREDECESSOR IN INTEREST, THE TIAONG
MILLING AND PLANTATION COMPANY, DURING ALL
THE 50 YEARS OF ITS CORPORATE EXISTENCE
"ARE ALSO PROPERTIES OF THE ESTATE OF
FOREST L. CEASE."
III. IN AFFIRMING THE ARBITRARY CONCLUSION
OF THE LOWER COURT THAT ITS DECISION OF
DECEMBER 27,1969 IS AN "INTERLUCUTORY
DECISION." IN DISMISSED NG THE PETITION FOR
WRIT OF MANDAMUS, AND IN AFFIRMING THE
MANIFESTLY UNJUST JUDGMENT RENDERED
WHICH CONTRADICTS THE FINDINGS OF
ULTIMATE FACTS THEREIN CONTAINED.
During the period that ensued after the filing in this
Court of the respective briefs and the subsequent
submission of the case for decision, some incidents had
transpired, the summary of which may be stated as
follows:
1. Separate from this present appeal, petitioners filed a
petition for certiorari and prohibition in this Court,
docketed as G.R. No. L-35629 (Ernesto Cease, et al.
vs. Hon. Manolo L. Maddela, et al.) which challenged
the order of respondent judge dated September 27,
1972 appointing his Branch Clerk of Court, Mr. Eleno M.
Joyas, as receiver of the properties subject of the
appealed civil case, which order, petitioners saw as a
virtual execution of the lower court's judgment (p. 92,
rollo). In Our resolution of November 13, 1972, issued in
G.R. No. L-35629, the petition was denied since
respondent judge merely appointed an auxilliary
receiver for the preservation of the properties as well as
for the protection of the interests of all parties in Civil
Case No. 6326; but at the same time, We expressed
Our displeasure in the appointment of the branch clerk
of court or any other court personnel for that matter as
receiver. (p. 102, rollo).
2. Meanwhile, sensing that the appointed receiver was
making some attempts to take possession of the
properties, petitioners filed in this present appeal an
urgent petition to restrain proceedings in the lower
court. We resolved the petition on January 29, 1975 by
issuing a corresponding temporary restraining order
enjoining the court a quo from implementing its decision
of December 27, 1969, more particularly, the taking
over by a receiver of the properties subject of the
litigation, and private respondents Benjamin and
Florence Cease from proceeding or taking any action
on the matter until further orders from this Court (pp. 99-
100, rollo). Private respondents filed a motion for
reconsideration of Our resolution of January 29, 1975.
After weighing the arguments of the parties and taking
note of Our resolution in G.R. No. L-35629 which
upheld the appointment of a receiver, We issued
another resolution dated April 11, 1975 lifting effective
immediately Our previous temporary restraining order
which enforced the earlier resolution of January 29,
1975 (pp. 140-141, rollo).
3. On February 6, 1976, private respondents filed an
urgent petition to restrain proceedings below in view of
the precipitate replacement of the court appointed
receiver Mayor Francisco Escueta (vice Mr. Eleno M.
Joyas) and the appointment of Mr. Guillermo Lagrosa
on the eve of respondent Judge Maddela's retirement
(p. 166, rollo). The urgent petition was denied in Our
resolution of February 18, 1976 (p. 176, rollo).
4. Several attempts at a compromise agreement failed
to materialize. A Tentative Compromise Agreement
dated July 30, 1975 was presented to the Court on
August 6, 1976 for the signature of the parties, but
respondents "unceremoniously" repudiated the same by
leaving the courtroom without the permission of the
court (Court of First Instance of Quezon, Branch 11) as
a result of which respondents and their counsel were
cited for contempt (p. 195, 197, rollo) that respondents'
reason for the repudiation appears to be petitioners'
failure to render an audited account of their
administration covering the period from May 31, 1961
up to January 29, 1974, plus the inclusion of a provision
on waiver and relinquishment by respondents of
whatever rights that may have accrued to their favor by
virtue of the lower court's decision and the affirmative
decision of the appellate court.
We go now to the alleged errors committed by the
respondent Court of Appeals.
41 | P a g e
As can be gleaned from petitioners' brief and the
petition itself, two contentions underlie the first assigned
error. First, petitioners argue that there was an irregular
and arbitrarte termination and dismissal of the special
proceedings for judicial administration simultaneously
ordered in the lower court . s decision in Civil Case No.
6326 adjudicating the partition of the estate, without
categorically, reasoning the opposition to the petition for
administration Second, that the issue of ownership had
been raised in the lower court when Tiaong Milling
asserted title over the properties registered in its
corporate name adverse to Forrest L. Cease or his
estate, and that the said issue was erroneously
disposed of by the trial court in the partition proceedings
when it concluded that the assets or properties of the
defunct company is also the estate of the deceased
proprietor.
The propriety of the dismissal and termination of the
special proceedings for judicial administration must be
affirmed in spite of its rendition in another related case
in view of the established jurisprudence which favors
partition when judicial administration become,
unnecessary. As observed by the Court of Appeals, the
dismissal at first glance is wrong, for the reason that
what was actually heard was Civil Case No. 6326. The
technical consistency, however, it is far less importance
than the reason behind the doctrinal rule against placing
an estate under administration. Judicial rulings
consistently hold the view that where partition is
possible, either judicial or extrajudicial, the estate
should not be burdened with an administration
proceeding without good and compelling reason. When
the estate has no creditors or pending obligations to be
paid, the beneficiaries in interest are not bound to
submit the property to judicial administration which is
always long and costly, or to apply for the appointment
of an administrator by the court, especially when judicial
administration is unnecessary and superfluous. Thus -
When a person dies without leaving
pending obligations to be paid, his heirs,
whether of age or not, are bound to
submit the property to a judicial
administration, which is always long and
costly, or to apply for the appointment of
an administrator by the court. It has
been uniformly held that in such case
the judicial administration and the
appointment of an administrator are
superfluous and unnecessary
proceedings (Ilustre vs. Alaras
Frondosa, 17 Phil., 321; Malahacan vs.
Ignacio, 19 Phil, 434; Bondad vs.
Bondad, 34 Phil., 232; Baldemor vs.
Malangyaon, 34 Phil., 367; Fule vs.
Fule, 46 Phil., 317). Syllabus, Intestate
estate of the deceased Luz Garcia.
Pablo G. Utulo vs. Leona Pasion Viuda
de Garcia, 66 Phil. 302.
Where the estate has no debts,
recourse may be had to an
administration proceeding only if the
heirs have good reasons for not
resorting to an action for partition.
Where partition is possible, either in or
out of court, the estate should not be
burdened with an administration
proceeding without good and compelling
reasons. (Intestate Estate of Mercado
vs. Magtibay, 96 Phil. 383)
In the records of this case, We find no indication of any
indebtedness of the estate. No creditor has come up to
charge the estate within the two-year period after the
death of Forrest L. Cease, hence, the presumption
under Section 1, Rule 74 that the estate is free from
creditors must apply. Neither has the status of the
parties as legal heirs, much less that of respondents,
been raised as an issue. Besides, extant in the records
is the stipulation of the parties to submit the pleadings
and contents of the administration proceedings for the
cognizance of the trial judge in adjudicating the civil
case for partition (Respondents' Brief, p, 20, rollo). As
respondents observe, the parties in both cases are the
same, so are the properties involved; that actual
division is the primary objective in both actions; the
theory and defense of the respective parties are
likewise common; and that both cases have been
assigned to the same respondent judge. We feel that
the unifying effect of the foregoing circumstances invites
the wholesome exception to the structures of procedural
rule, thus allowing, instead, room for judicial flexibility.
Respondent judge's dismissal of the administration
proceedings then, is a judicious move, appreciable in
today's need for effective and speedy administration of
justice. There being ample reason to support the
dismissal of the special proceedings in this appealed
case, We cannot see in the records any compelling
reason why it may not be dismissed just the same even
if considered in a separate action. This is inevitably
certain specially when the subject property has already
been found appropriate for partition, thus reducing the
petition for administration to a mere unnecessary
solicitation.
The second point raised by petitioners in their first
assigned error is equally untenable. In effect, petitioners
argue that the action for partition should not have
prospered in view of the repudiation of the co-ownership
by Tiaong Milling and Plantation Company when, as
early in the trial court, it already asserted ownership and
corporate title over the properties adverse to the right of
ownership of Forrest L. Cease or his estate. We are not
unmindful of the doctrine relied upon by petitioners
in Rodriguez vs. Ravilan, 17 Phil. 63 wherein this Court
held that in an action for partition, it is assumed that the
parties by whom it is prosecuted are all co-owners or
co-proprietors of the property to be divided, and that the
question of common ownership is not to be argued, not
the fact as to whether the intended parties are or are
not the owners of the property in question, but only as
to how and in what manner and proportion the said
property of common ownership shall be distributed
among the interested parties by order of the Court.
Consistent with this dictum, it has been field that if any
party to a suit for partition denies the pro-
indivisocharacter of the estate whose partition is sought,
and claims instead, exclusive title thereto the action
becomes one for recovery of property cognizable in the
courts of ordinary jurisdiction. 2
Petitioners' argument has only theoretical persuasion,
to say the least, rather apparent than real. It must be
remembered that when Tiaong Milling adduced its
defense and raised the issue of ownership, its corporate
existence already terminated through the expiration of
its charter. It is clear in Section 77 of Act No. 1459
(Corporation Law) that upon the expiration of the
charter period, the corporation ceases to exist and is
dissolved ipso facto except for purposes connected with
the winding up and liquidation. The provision allows a
three year, period from expiration of the charter within
which the entity gradually settles and closes its affairs,
disposes and convey its property and to divide its
capital stock, but not for the purpose of continuing the
business for which it was established. At this terminal
stage of its existence, Tiaong Milling may no longer
persist to maintain adverse title and ownership of the
corporate assets as against the prospective distributees
when at this time it merely holds the property in trust, its
assertion of ownership is not only a legal contradiction,
42 | P a g e
but more so, to allow it to maintain adverse interest
would certainly thwart the very purpose of liquidation
and the final distribute loll of the assets to the proper,
parties.
We agree with the Court of Appeals in its reasoning that
substance is more important than form when it
sustained the dismissal of Special Proceedings No.
3893, thus -
a) As to the dismissal of Special
Proceedings No. 3893, of course, at first
glance, this was wrong, for the reason
that the case trial had been heard was
Civil Case No. 6326; but what should
not be overlooked either is Chat
respondent Judge was the same Judge
that had before him in his own sala, said
Special Proceedings No. 3893, p. 43
rollo, and the parties to the present Civil
Case No. 6326 had themselves asked
respondent Judge to take judicial notice
of the same and its contents page 34,
rollo; it is not difficult to see that when
respondent Judge in par. 4 of the
dispositive part of his decision
complained of, ordered that,
4) Special Proceedings
No. 3893 for
administration is
terminated and
dismissed; the instant
case to proceed but on
issues of damages only
and for such action
inherently essential or
partition. p. 123, rollo,
in truth and in fact, His Honor was
issuing that order also within Civil Case
No. 632 but in connection with Special
Proceedings No. 389:3: for substance is
more important Chan form, the
contending par ties in both proceedings
being exactly the same, but not only
this, let it not be forgotten that when His
Honor dismissed Special Proceedings
No. 3893, that dismissal precisely was a
dismissal that petitioners herein had
themselves sought and solicited from
respondent Judge as petitioners
themselves are in their present petition
pp. 5-6, rollo; this Court must find
difficulty in reconciling petitioners' attack
with the fact that it was they themselves
that had insisted on that dismissal; on
the principle that not he who is favored
but he who is hurt by a judicial order is
he only who should be heard to
complain and especially since
extraordinary legal remedies are
remedies in extermies granted to parties
' who have been the victims not merely
of errors but of grave wrongs, and it
cannot be seen how one who got what
he had asked could be heard to claim
that he had been the victim of a wrong,
petitioners should not now complain of
an order they had themselves asked in
order to attack such an order
afterwards; if at all, perhaps, third
parties, creditors, the Bureau of Internal
Revenue, might have been prejudiced,
and could have had the personality to
attack that dismissal of Special
 Proceedings No. 3893, but not
petitioners herein, and it is not now for
this Court of Appeals to protect said
third persons who have not come to the
Court below or sought to intervene
herein;
On the second assigned error, petitioners argue that no
evidence has been found to support the conclusion that
the registered properties of Tiaong Milling are also
properties of the estate of Forrest L. Cease; that on the
contrary, said properties are registered under Act No.
496 in the name of Tiaong Milling as lawful owner and
possessor for the last 50 years of its corporate
existence.
We do not agree. In reposing ownership to the estate of
Forrest L. Cease, the trial court indeed found strong
support, one that is based on a well-entrenched
principle of law. In sustaining respondents' theory of
"merger of Forrest L. Cease and The Tiaong Milling as
one personality", or that "the company is only the
business conduit and alter ego of the deceased Forrest
L. Cease and the registered properties of Tiaong Milling
are actually properties of Forrest L. Cease and should
be divided equally, share and share alike among his six
children, ... ", the trial court did aptly apply the familiar
exception to the general rule by disregarding the legal
fiction of distinct and separate corporate personality and
regarding the corporation and the individual member
one and the same. In shredding the fictitious corporate
veil, the trial judge narrated the undisputed factual
premise, thus:
While the records showed that originally
its incorporators were aliens, friends or
third-parties in relation of one to
another, in the course of its existence, it
developed into a close family
corporation. The Board of Directors and
stockholders belong to one family the
head of which Forrest L. Cease always
retained the majority stocks and hence
the control and management of its
affairs. In fact, during the reconstruction
of its records in 1947 before the Security
and Exchange Commission only 9
nominal shares out of 300 appears in
the name of his 3 eldest children then
and another person close to them. It is
likewise noteworthy to observe that as
his children increase or perhaps
become of age, he continued
distributing his shares among them
adding Florence, Teresa and Marion
until at the time of his death only 190
were left to his name. Definitely, only the
members of his family benefited from
the Corporation.
The accounts of the corporation and
therefore its operation, as well as that of
the family appears to be
indistinguishable and apparently joined
together. As admitted by the defendants
(Manifestation of Compliance with Order
of March 7, 1963 [Exhibit "21"] the
corporation 'never' had any account with
any banking institution or if any account
was carried in a bank on its behalf, it
was in the name of Mr. Forrest L.
Cease. In brief, the operation of the
Corporation is merged with those of the
majority stockholders, the latter using
the former as his instrumentality and for
the exclusive benefits of all his family.
43 | P a g e
From the foregoing indication, therefore,
there is truth in plaintiff's allegation that
the corporation is only a business
conduit of his father and an extension of
his personality, they are one and the
same thing. Thus, the assets of the
corporation are also the estate of
Forrest L. Cease, the father of the
parties herein who are all legitimate
children of full blood.
A rich store of jurisprudence has established the rule
known as the doctrine of disregarding or piercing the
veil of corporate fiction. Generally, a corporation is
invested by law with a personality separate and distinct
from that of the persons composing it as well as from
that of any other legal entity to which it may be related.
By virtue of this attribute, a corporation may not,
generally, be made to answer for acts or liabilities of its
stockholders or those of the legal entities to which it
may be connected, and vice versa. This separate and
distinct personality is, however, merely a fiction created
by law for convenience and to promote the ends of
justice (Laguna Transportation Company vs. Social
Security System, L-14606, April 28, 1960; La Campana
Coffee Factory, Inc. vs. Kaisahan ng mga Manggagawa
sa La Campana, L-5677, May 25, 1953). For this
reason, it may not be used or invoked for ends
subversive of the policy and purpose behind its creation
(Emiliano Cano Enterprises, Inc. vs. CIR, L-20502, Feb.
26, 1965) or which could not have been intended by law
to which it owes its being McConnel vs. Court of
Appeals, L- 10510, March 17, 1961, 1 SCRA 722). This
is particularly true where the fiction is used to defeat
public convenience, justify wrong, protect fraud, defend
crime (Yutivo Sons Hardware Company vs. Court of
Tax Appeals, L-13203, Jan. 28, 1961, 1 SCRA 160),
confuse legitimate legal or judicial issues (R. F. Sugay
& Co. vs. Reyes, L-20451, Dec. 28, 1964), perpetrate
deception or otherwise circumvent the law (Gregorio
Araneta, Inc. vs. reason de Paterno, L-2886, Aug. 22,
1952, 49 O.G. 721). This is likewise true where the
corporate entity is being used as an alter ego, adjunct,
or business conduit for the sole benefit of the
stockholders or of another corporate entity (McConnel
vs. Court of Appeals, supra; Commissioner of Internal
Revenue vs. Norton Harrison Co., L-7618, Aug. 31,
1964).
In any of these cases, the notion of corporate entity will
be pierced or disregarded, and the corporation will be
treated merely as an association of persons or, where
there are two corporations, they will be merged as one,
the one being merely regarded as part or the
instrumentality of the otter (Koppel [Phil.] Inc. vs. Yatco,
77 Phil. 496, Yutivo Sons Hardware Company vs. Court
of Tax Appeals, supra).
So must the case at bar add to this jurisprudence. An
indubitable deduction from the findings of the trial court
cannot but lead to the conclusion that the business of
the corporation is largely, if not wholly, the personal
venture of Forrest L. Cease. There is not even a
shadow of a showing that his children were subscribers
or purchasers of the stocks they own. Their participation
as nominal shareholders emanated solely from Forrest
L. Cease's gratuitous dole out of his own shares to the
benefit of his children and ultimately his family.
Were we sustain the theory of petitioners that the trial
court acted in excess of jurisdiction or abuse of
discretion amounting to lack of jurisdiction in deciding
Civil Case No. 6326 as a case for partition when the
defendant therein, Tiaong Milling and Plantation
Company, Inc. as registered owner asserted ownership
of the assets and properties involved in the litigation,
which theory must necessarily be based on the
assumption that said assets and properties of Tiaong
Milling and Plantation Company, Inc. now appearing
under the name of F. L. Cease Plantation Company as
Trustee are distinct and separate from the estate of
Forrest L. Cease to which petitioners and respondents
as legal heirs of said Forrest L. Cease are equally
entitled share and share alike, then that legal fiction of
separate corporate personality shall have been used to
delay and ultimately deprive and defraud the
respondents of their successional rights to the estate of
their deceased father. For Tiaong Milling and Plantation
Company shall have been able to extend its corporate
existence beyond the period of its charter which lapsed
in June, 1958 under the guise and cover of F. L, Cease
Plantation Company, Inc. as Trustee which would be
against the law, and as Trustee shall have been able to
use the assets and properties for the benefit of the
petitioners, to the great prejudice and defraudation. of
private respondents. Hence, it becomes necessary and
imperative to pierce that corporate veil.
Under the third assigned error, petitioners claim that the
decision of the lower court in the partition case is not
interlocutory but rather final for it consists of final and
determinative dispositions of the contentions of the
parties. We find no merit in petitioners' stand.
Under the 1961 pronouncement and ruling of the
Supreme Court in Vda. de Zaldarriaga vs. Enriquez, 1
SCRA 1188 (and the sequel case of Vda. de
Zaldarriaga vs. Zaldarriaga, 2 SCRA 356), the lower
court's dismissal of petitioners' proposed appeal from its
December 27, 1969 judgment as affirmed by the Court
of Appeals on the ground of prematurity in that the
judgment was not final but interlocutory was in order. As
was said in said case:
It is true that in Africa vs. Africa, 42 Phil.
934 and other cases it was held -
contrary to the rule laid down in Ron vs.
Mojica, 8 Phil. 328; Rodriguez vs.
Ravilan, 17 Phil. 63 - that in a partition
case where defendant relies on the
defense of exclusive ownership, the
action becomes one for title and the
decision or order directing partition is
final, but the ruling to this effect has
been expressly reversed in the
Fuentebella case which, in our opinion,
expresses the correct view, considering
that a decision or order directing
partition is not final because it leaves
something more to be done in the trial
court for the complete disposition of the
case, namely, the appointment of
commissioners, the proceedings to be
had before them, the submission of their
report which, according to law, must be
set for hearing. In fact, it is only after
said hearing that the court may render a
final judgment finally disposing of the
action (Rule 71, section 7, Rules of
Court). (1 SCRA at page 1193).
It should be noted, however, that the said ruling in
Zaldarriaga as based on Fuentebella vs. Carrascoso,
XIV Lawyers Journal 305 (May 27, 1942), has been
expressly abandoned by the Court in Miranda vs. Court
of Appeals, 71 SCRA 295; 331-333 (June 18, 1976)
wherein Mr. Justice Teehankee, speaking for the Court,
laid down the following doctrine:
The Court, however, deems it proper for
the guidance of the bench and bar to
now declare as is clearly indicated from
44 | P a g e
the compelling reasons and
considerations hereinabove stated:
- that the Court considers the better rule
to be that stated in H. E. Heacock Co.
vs. American Trading Co., to wit, that
where the primary purpose of a case is
to ascertain and determine who
between plaintiff and defendant is the
true owner and entitled to the exclusive
use of the disputed property, "the
judgment . . . rendered by the lower
court [is] a judgment on the merits as to
those questions, and [that] the order of
the court for an accounting was based
upon, and is incidental to the judgment
on the merits. That is to say, that the
judgment . . . [is] a final judgment ... that
in this kind of a case an accounting is a
mere incident to the judgment; that
an appeal lies from the rendition of the
judgment as rendered ... "(as is widely
held by a great number of judges and
members of the bar, as shown by the
cases so decided and filed and still
pending with the Court) for the
fundamental reasons therein stated that
"this is more in harmony with
the administration of justice and the
spirit and intent of the [Rules]. If on
appeal the judgment of the lower court
is affirmed, it would not in the least work
an injustice to any of the legal rights of
[appellee]. On the other hand, if for any
reason this court should reverse the
judgment of the lower court, the
accounting would be a waste of time
and money, and might work a material
injury to the [appellant]; and
- that accordingly, the contrary ruling
in Fuentebella vs. Carrascoso which
expressly reversed the Heacock case
and a line of similar decisions and ruled
that such a decision for recovery of
property with accounting "is not final but
merely interlocutory and therefore not
appealable" and subsequent cases
adhering to the same must be now in
turn abandoned and set aside.
Fuentebella adopted instead the
opposite line of conflicting decisions
mostly in partition proceedings and
exemplified by Ron vs. Mojica 8 Phil.
928 (under the old Code of Civil
Procedure) that an order for partition of
real property is not final and appealable
until after the actual partition of the
property as reported by the court
appointed commissioners and approved
by the court in its judgment accepting
the report. lt must be especially noted
that such rule governing partitions is
now so expressly provided and spelled
out in Rule 69 of the Rules of Court, with
special reference to Sections 1, 2, 3, 6,
7 and 11, to wit, that there must first be
a preliminar, order for partition of the
real estate (section 2) and where the
parties-co-owners cannot agree, the
court appointed commissioners make a
plan of actual partition which must first
be passed upon and accepted by the
trial court and embodied in a judgment
to be rendered by it (sections 6 and 11).
In partition cases, it must be further
 borne in mind that Rule 69, section 1
refers to "a person having the right to
compel the partition of real estate," so
that the general rule of partition that an
appeal will not lie until the partition or
distribution proceedings are terminated
will not apply where appellant
claims exclusive ownership of the whole
property and denies the adverse party's
right to any partition, as was the ruling
in Villanueva vs. Capistrano and Africa
vs .Africa, supra, Fuentebellas express
rehearsal of these cases must likewise
be deemed now also abandoned in view
of the Court's expressed preference for
the rationale of the Heacock case.
The Court's considered opinion is
that imperative considerations
of public policy and of sound practice in
the courts and adherence to
the constitutional mandate of simplified,
just, speedy and inexpensive
determination of every action call for
considering such judgments for recovery
of property with accounting as
final judgments which are
duly appealable (and would therefore
become final and executory if not
appealed within the reglementary
period) with the accounting as a mere
incident of the judgment to be rendered
during the course of the appeal as
provided in Rule 39, section 4 or to be
implemented at the execution stage
upon final affirmance on appeal of the
judgment (as in Court of Industrial
Relations unfair labor practice cases
ordering the reinstatement of the worker
with accounting, computation and
payment of his backwages less earnings
elsewhere during his layoff) and that the
only reason given in Fuentebelia for the
contrary ruling, viz, "the general harm
that would follow from throwing the door
open to multiplicity of appeals in a single
case" of lesser import and
consequence. (Emphasis copied).
The miranda ruling has since then been applied as the
new rule by a unanimous Court in Valdez vs. Bagasao,
82 SCRA 22 (March 8, 1978).
If there were a valid genuine claim of Exclusive
ownership of the inherited properties on the part of
petitioners to respondents' action for partition, then
under the Miranda ruling, petitioners would be
sustained, for as expressly held therein " the general
rule of partition that an appeal will not lie until the
partition or distribution proceedings are terminated will
not apply where appellant claims exclusive ownership of
the whole property and denies the adverse party's right
to any partition."
But this question has now been rendered moot and
academic for the very issue of exclusive ownership
claimed by petitioners to deny and defeat respondents'
right to partition - which is the very core of their rejected
appeal - has been squarely resolved herein against
them, as if the appeal had been given due course. The
Court has herein expressly sustained the trial court's
findings, as affirmed by the Court of Appeals, that the
assets or properties of the defunct company constitute
the estate of the deceased proprietor (supra at page 7)
and the defunct company's assertion of ownership of
the properties is a legal contradiction and would but
45 | P a g e
thwart the liquidation and final distribution and partition
of the properties among the parties hereof as children of
their deceased father Forrest L. Cease. There is
therefore no further hindrance to effect the partition of
the properties among the parties in implementation of
the appealed judgment.
One last consideration. Parties are brothers and sisters,
legal heirs of their deceased father, Forrest L. Cease.
By all rights in law and jurisprudence, each is entitled to
share and share alike in the estate, which the trial court
correctly ordained and sustained by the appellate court.
Almost 20 years have lapsed since the filing of Special
Proceedings No. 3893 for the administration of the
Estate of Forrest L. Cease and Civil Case No. 6326 for
liquidation and partition of the assets of the defunct
Tiaong Milling and Plantation Co., Inc. A succession of
receivers were appointed by the court to take, keep in
possession, preserve and manage properties of the
corporation which at one time showed an income of
P386,152.90 and expenses of P308,405.01 for the
period covering January 1, 1960 to August 31, 1967 as
per Summary of Operations of Commissioner for
Finance appointed by the Court (Brief for Respondents,
p. 38). In the meantime, ejectment cases were filed by
and against the heirs in connection with the properties
involved, aggravating the already strained relations of
the parties. A prudent and practical realization of these
circumstances ought and must constrain the parties to
give each one his due in law and with fairness and
dispatch that their basic rights be enjoyed. And by
remanding this case to the court a quo for the actual
partition of the properties, the substantial rights of
everyone of the heirs have not been impaired, for in
fact, they have been preserved and maintained.
WHEREFORE, IN VIEW OF THE FOREGOING, the
judgment appealed from is hereby AFFIRMED with
costs against the petitioners.
SO ORDERED.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to
give it effective operation and suppress the mischief at
which it is aimed.1 The 1987 Constitution mandates that
an aspirant for election to the House of Representatives
be "a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less
than one year immediately preceding the election."2 The
mischief which this provision reproduced verbatim
from the 1973 Constitution seeks to prevent is the
possibility of a "stranger or newcomer unacquainted
with the conditions and needs of a community and not
identified with the latter, from an elective office to serve
that community."3
Petitioner Imelda Romualdez-Marcos filed her
Certificate of Candidacy for the position of
Representative of the First District of Leyte with the
Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8:4
RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO BE ELECTED
 IMMEDIATELY PRECEDING THE
ELECTION: __________ Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy
Montejo, the incumbent Representative of the First
District of Leyte and a candidate for the same position,
filed a "Petition for Cancellation and
Disqualification"5 with the Commission on Elections
alleging that petitioner did not meet the constitutional
requirement for residency. In his petition, private
respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for
candidates for the House of Representatives on the
evidence of declarations made by her in Voter
Registration Record 94-No. 33497726 and in her
Certificate of Candidacy. He prayed that "an order be
issued declaring (petitioner) disqualified and canceling
the certificate of candidacy."7
On March 29, 1995, petitioner filed an
Amended/Corrected Certificate of Candidacy, changing
the entry "seven" months to "since childhood" in item
no. 8 of the amended certificate.8 On the same day, the
Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy
on the ground that it is filed out of time,
the deadline for the filing of the same
having already lapsed on March 20,
1995. The Corrected/Amended
Certificate of Candidacy should have
been filed on or before the March 20,
1995 deadline.9
Consequently, petitioner filed the Amended/Corrected
Certificate of Candidacy with the COMELEC's Head
Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's
petition in SPA No. 95-009 was likewise filed with the
head office on the same day. In said Answer, petitioner
averred that the entry of the word "seven" in her original
Certificate of Candidacy was the result of an "honest
misinterpretation" 10 which she sought to rectify by
adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that
"she has always maintained Tacloban City as her
domicile or residence. 11 Impugning respondent's motive
in filing the petition seeking her disqualification, she
noted that:
When respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner immediately opposed
her intended registration by writing a
letter stating that "she is not a resident
of said city but of Barangay Olot,
Tolosa, Leyte. After respondent had
registered as a voter in Tolosa following
completion of her six month actual
residence therein, petitioner filed a
petition with the COMELEC to transfer
the town of Tolosa from the First District
to the Second District and pursued such
a move up to the Supreme Court, his
purpose being to remove respondent as
petitioner's opponent in the
congressional election in the First
District. He also filed a bill, along with
other Leyte Congressmen, seeking the
creation of another legislative district to
remove the town of Tolosa out of the
46 | P a g e
First District, to achieve his purpose.
However, such bill did not pass the
Senate. Having failed on such moves,
petitioner now filed the instant petition
for the same objective, as it is obvious
that he is afraid to submit along with
respondent for the judgment and verdict
of the electorate of the First District of
Leyte in an honest, orderly, peaceful,
free and clean elections on May 8,
1995. 12
On April 24, 1995, the Second Division of the
Commission on Elections (COMELEC), by a vote of 2 to
1, 13 came up with a Resolution 1) finding private
respondent's Petition for Disqualification in SPA 95-009
meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March
31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely,
the validity of amending the original Certificate of
Candidacy after the lapse of the deadline for filing
certificates of candidacy, and petitioner's compliance
with the one year residency requirement, the Second
Division held:
Respondent raised the affirmative
defense in her Answer that the printed
word "Seven" (months) was a result of
an "honest misinterpretation or honest
mistake" on her part and, therefore, an
amendment should subsequently be
allowed. She averred that she thought
that what was asked was her "actual
and physical" presence in Tolosa and
not residence of origin or domicile in the
First Legislative District, to which she
could have responded "since childhood."
In an accompanying affidavit, she stated
that her domicile is Tacloban City, a
component of the First District, to which
she always intended to return whenever
absent and which she has never
abandoned. Furthermore, in her
memorandum, she tried to discredit
petitioner's theory of disqualification by
alleging that she has been a resident of
the First Legislative District of Leyte
since childhood, although she only
became a resident of the Municipality of
Tolosa for seven months. She asserts
that she has always been a resident of
Tacloban City, a component of the First
District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note
that prior to her registration in Tolosa,
respondent announced that she would
be registering in Tacloban City so that
she can be a candidate for the District.
However, this intention was rebuffed
when petitioner wrote the Election
Officer of Tacloban not to allow
respondent since she is a resident of
Tolosa and not Tacloban. She never
disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim
of "honest misinterpretation or honest
mistake." Besides, the Certificate of
Candidacy only asks for RESIDENCE.
Since on the basis of her Answer, she
was quite aware of "residence of origin"
which she interprets to be Tacloban
 City, it is curious why she did not cite
Tacloban City in her Certificate of
Candidacy. Her explanation that she
thought what was asked was her actual
and physical presence in Tolosa is not
easy to believe because there is none in
the question that insinuates about
Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly
of "Residency in the
CONSTITUENCY where I seek to be
elected immediately preceding the
election." Thus, the explanation of
respondent fails to be persuasive.
only for such limited period of time,
starting in the last week of August 1994
which on March 8, 1995 will only sum up
to 7 months. The Commission,
therefore, cannot be persuaded to
believe in the respondent's contention
that it was an error.
xxx xxx xxx
Based on these reasons the
Amended/Corrected Certificate of
Candidacy cannot be admitted by this
Commission.

From the foregoing, respondent's xxx xxx xxx

defense of an honest mistake or
misinterpretation, therefore, is devoid of
Anent the second issue, and based on
merit.
the foregoing discussion, it is clear that
respondent has not complied with the
To further buttress respondent's one year residency requirement of the
contention that an amendment may be Constitution.
made, she cited the case of Alialy
v. COMELEC (2 SCRA 957). The
In election cases, the term "residence"
reliance of respondent on the case of
has always been considered as
Alialy is misplaced. The case only
synonymous with "domicile" which
applies to the "inconsequential
imports not only the intention to reside in
deviations which cannot affect the result
a fixed place but also personal presence
of the election, or deviations from
in-that place, coupled with conduct
provisions intended primarily to secure
indicative of such intention. Domicile
timely and orderly conduct of elections."
denotes a fixed permanent residence to
The Supreme Court in that case
which when absent for business or
considered the amendment only as a
pleasure, or for like reasons, one
matter of form. But in the instant case,
intends to return. (Perfecto Faypon vs.
the amendment cannot be considered
Eliseo Quirino, 96 Phil 294; Romualdez
as a matter of form or an
vs. RTC-Tacloban, 226 SCRA 408). In
inconsequential deviation. The change
respondent's case, when she returned
in the number of years of residence in
to the Philippines in 1991, the residence
the place where respondent seeks to be
she chose was not Tacloban but San
elected is a substantial matter which
Juan, Metro Manila. Thus, her animus
determines her qualification as a
revertendi is pointed to Metro Manila
candidacy, specially those intended to
and not Tacloban.
suppress, accurate material
representation in the original certificate
which adversely affects the filer. To This Division is aware that her claim that
admit the amended certificate is to she has been a resident of the First
condone the evils brought by the shifting District since childhood is nothing more
minds of manipulating candidate, of the than to give her a color of qualification
detriment of the integrity of the election. where she is otherwise constitutionally
disqualified. It cannot hold ground in the
face of the facts admitted by the
Moreover, to allow respondent to
respondent in her affidavit. Except for
change the seven (7) month period of
the time that she studied and worked for
her residency in order to prolong it by
some years after graduation in Tacloban
claiming it was "since childhood" is to
City, she continuously lived in Manila. In
allow an untruthfulness to be committed
1959, after her husband was elected
before this Commission. The
Senator, she lived and resided in San
arithmetical accuracy of the 7 months
Juan, Metro Manila where she was a
residency the respondent indicated in
registered voter. In 1965, she lived in
her certificate of candidacy can be
San Miguel, Manila where she was
gleaned from her entry in her Voter's
again a registered voter. In 1978, she
Registration Record accomplished on
served as member of the Batasang
January 28, 1995 which reflects that she
Pambansa as the representative of the
is a resident of Brgy. Olot, Tolosa, Leyte
City of Manila and later on served as the
for 6 months at the time of the said
Governor of Metro Manila. She could
registration (Annex A, Petition). Said
not have served these positions if she
accuracy is further buttressed by her
had not been a resident of the City of
letter to the election officer of San Juan,
Manila. Furthermore, when she filed her
Metro Manila, dated August 24, 1994,
certificate of candidacy for the office of
requesting for the cancellation of her
the President in 1992, she claimed to be
registration in the Permanent List of
a resident of San Juan, Metro Manila.
Voters thereat so that she can be re-
As a matter of fact on August 24, 1994,
registered or transferred to Brgy. Olot,
respondent wrote a letter with the
Tolosa, Leyte. The dates of these three
election officer of San Juan, Metro
(3) different documents show the
Manila requesting for the cancellation of
respondent's consistent conviction that
her registration in the permanent list of
she has transferred her residence to
voters that she may be re-registered or
Olot, Tolosa, Leyte from Metro Manila
47 | P a g e
 transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she
could not have been a resident of
Tacloban City since childhood up to the
time she filed her certificate of
candidacy because she became a
resident of many places, including Metro
Manila. This debunks her claim that
prior to her residence in Tolosa, Leyte,
she was a resident of the First
Legislative District of Leyte since
childhood.
In this case, respondent's conduct
reveals her lack of intention to make
Tacloban her domicile. She registered
as a voter in different places and on
several occasions declared that she was
a resident of Manila. Although she spent
her school days in Tacloban, she is
considered to have abandoned such
place when she chose to stay and
reside in other different places. In the
case of Romualdez vs. RTC (226 SCRA
408) the Court explained how one
acquires a new domicile by choice.
There must concur: (1) residence or
bodily presence in the new locality; (2)
intention to remain there; and (3)
intention to abandon the old domicile. In
other words there must basically
be animus manendi with animus non
revertendi. When respondent chose to
stay in Ilocos and later on in Manila,
coupled with her intention to stay there
by registering as a voter there and
expressly declaring that she is a
resident of that place, she is deemed to
have abandoned Tacloban City, where
she spent her childhood and school
days, as her place of domicile.
Pure intention to reside in that place is
not sufficient, there must likewise be
conduct indicative of such intention.
Respondent's statements to the effect
that she has always intended to return
to Tacloban, without the accompanying
conduct to prove that intention, is not
conclusive of her choice of residence.
Respondent has not presented any
evidence to show that her conduct, one
year prior the election, showed intention
to reside in Tacloban. Worse, what was
evident was that prior to her residence
in Tolosa, she had been a resident of
Manila.
It is evident from these circumstances
that she was not a resident of the First
District of Leyte "since childhood."
To further support the assertion that she
could have not been a resident of the
First District of Leyte for more than one
year, petitioner correctly pointed out that
on January 28, 1995 respondent
registered as a voter at precinct No. 18-
A of Olot, Tolosa, Leyte. In doing so,
she placed in her Voter Registration
Record that she resided in the
municipality of Tolosa for a period of six
months. This may be inconsequential as
argued by the respondent since it refers
only to her residence in Tolosa, Leyte.
But her failure to prove that she was a
48 | P a g e
resident of the First District of Leyte
prior to her residence in Tolosa leaves
nothing but a convincing proof that she
had been a resident of the district for six
months only. 15
In a Resolution promulgated a day before the May 8,
1995 elections, the COMELEC en banc denied
petitioner's Motion for Reconsideration 16 of the April 24,
1995 Resolution declaring her not qualified to run for
the position of Member of the House of Representatives
for the First Legislative District of Leyte. 17 The
Resolution tersely stated:
After deliberating on the Motion for
Reconsideration, the Commission
RESOLVED to DENY it, no new
substantial matters having been raised
therein to warrant re-examination of the
resolution granting the petition for
disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution
allowing petitioner's proclamation should the results of
the canvass show that she obtained the highest number
of votes in the congressional elections in the First
District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second
Resolution directing that the proclamation of petitioner
be suspended in the event that she obtains the highest
number of votes. 19
In a Supplemental Petition dated 25 May 1995,
petitioner averred that she was the overwhelming
winner of the elections for the congressional seat in the
First District of Leyte held May 8, 1995 based on the
canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that
the canvass showed that she obtained a total of 70,471
votes compared to the 36,833 votes received by
Respondent Montejo. A copy of said Certificate of
Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner
from running for the congressional seat of the First
District of Leyte and the public respondent's Resolution
suspending her proclamation, petitioner comes to this
court for relief.
Petitioner raises several issues in her Original and
Supplemental Petitions. The principal issues may be
classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a
resident, for election purposes, of the
First District of Leyte for a period of one
year at the time of the May 9, 1995
elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly
exercised its jurisdiction in disqualifying
petitioner outside the period mandated
by the Omnibus Election Code for
disqualification cases under Article 78 of
the said Code.
b) After the Elections
 Whether or not the House of
Representatives Electoral Tribunal
assumed exclusive jurisdiction over the
question of petitioner's qualifications
after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second
Division reveals a startling confusion in the application
of settled concepts of "Domicile" and "Residence" in
election law. While the COMELEC seems to be in
agreement with the general proposition that for the
purposes of election law, residence is synonymous with
domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual
residence, a conception not intended for the purpose of
determining a candidate's qualifications for election to
the House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of
meeting the qualification for an elective position, has a
settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place
of habitual residence." In Ong vs. Republic 20 this court
took the concept of domicile to mean an individual's
"permanent home", "a place to which, whenever absent
for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that
they disclose intent." 21Based on the foregoing, domicile
includes the twin elements of "the fact of residing or
physical presence in a fixed place" and animus
manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the
factual relationship of an individual to a certain place. It
is the physical presence of a person in a given area,
community or country. The essential distinction between
residence and domicile in law is that residence involves
the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a
place for purposes such as pleasure, business, or
health. If a person's intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose
is established it is residence. 22 It is thus, quite perfectly
normal for an individual to have different residences in
various places. However, a person can only have a
single domicile, unless, for various reasons, he
successfully abandons his domicile in favor of another
domicile of choice. In Uytengsu vs. Republic, 23 we laid
this distinction quite clearly:
There is a difference between domicile
and residence. "Residence" is used to
indicate a place of abode, whether
permanent or temporary; "domicile"
denotes a fixed permanent residence to
which, when absent, one has the
intention of returning. A man may have
a residence in one place and a domicile
in another. Residence is not domicile,
but domicile is residence coupled with
the intention to remain for an unlimited
time. A man can have but one domicile
for the same purpose at any time, but he
may have numerous places of
residence. His place of residence is
generally his place of domicile, but it is
not by any means necessarily so since
no length of residence without intention
of remaining will constitute domicile.
49 | P a g e
For political purposes the concepts of residence and
domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used
synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term
residence. . . is synonymous with domicile which
imports not only intention to reside in a fixed place, but
also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena
vs. Teves 26 reiterated the same doctrine in a case
involving the qualifications of the respondent therein to
the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino, 27 held that the absence
from residence to pursue studies or practice a
profession or registration as a voter other than in the
place where one is elected does not constitute loss of
residence. 28 So settled is the concept (of domicile) in
our election law that in these and other election law
cases, this Court has stated that the mere absence of
an individual from his permanent residence without the
intention to abandon it does not result in a loss or
change of domicile.
The deliberations of the 1987 Constitution on the
residence qualification for certain elective positions
have placed beyond doubt the principle that when the
Constitution speaks of "residence" in election law, it
actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971
Constitutional Convention, there was an
attempt to require residence in the place
not less than one year immediately
preceding the day of the elections. So
my question is: What is the Committee's
concept of residence of a candidate for
the legislature? Is it actual residence or
is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar
as the regular members of the National
Assembly are concerned, the proposed
section merely provides, among others,
"and a resident thereof", that is, in the
district for a period of not less than one
year preceding the day of the election.
This was in effect lifted from the 1973
Constitution, the interpretation given to it
was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is
on Section 7, page 2. I think
Commissioner Nolledo has raised the
same point that "resident" has been
interpreted at times as a matter of
intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the
gentleman consider at the proper time to
go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might
encounter some difficulty especially
considering that a provision in the
Constitution in the Article on Suffrage
says that Filipinos living abroad may
 vote as enacted by law. So, we have to
stick to the original concept that it
should be by domicile and not physical
residence. 30
In Co vs. Electoral Tribunal of the House of
Representatives, 31 this Court concluded that the
framers of the 1987 Constitution obviously adhered to
the definition given to the term residence in election law,
regarding it as having the same meaning as domicile. 32
In the light of the principles just discussed, has
petitioner Imelda Romualdez Marcos satisfied the
residency requirement mandated by Article VI, Sec. 6 of
the 1987 Constitution? Of what significance is the
questioned entry in petitioner's Certificate of Candidacy
stating her residence in the First Legislative District of
Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate
of candidacy which ought to be decisive in determining
whether or not and individual has satisfied the
constitution's residency qualification requirement. The
said statement becomes material only when there is or
appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render
a candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a
statement in a certificate of candidacy which would lead
to his or her disqualification.
It stands to reason therefore, that petitioner merely
committed an honest mistake in jotting the word "seven"
in the space provided for the residency qualification
requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent
confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her
period of residence in the First district, which was "since
childhood" in the space provided. These circumstances
and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a
different interpretation. For instance, when herein
petitioner announced that she would be registering in
Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same,
claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of
actual residence in the First District, which is Tolosa,
Leyte, a fact which she subsequently noted down in her
Certificate of Candidacy. A close look at said certificate
would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately
by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete
Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR
ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY
PRECEDING THE
ELECTION:_________ Years
and Seven Months.
Having been forced by private respondent to register in
her place of actual residence in Leyte instead of
petitioner's claimed domicile, it appears that petitioner
had jotted down her period of stay in her legal residence
or domicile. The juxtaposition of entries in Item 7 and
Item 8 the first requiring actual residence and the
50 | P a g e
second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a
voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified.
This honest mistake should not, however, be allowed to
negate the fact of residence in the First District if such
fact were established by means more convincing than a
mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile
could not possibly be in the First District of Leyte, the
Second Division of the COMELEC, in its assailed
Resolution of April 24,1995 maintains that "except for
the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she
continuously lived in Manila." The Resolution
additionally cites certain facts as indicative of the fact
that petitioner's domicile ought to be any place where
she lived in the last few decades except Tacloban,
Leyte. First, according to the Resolution, petitioner, in
1959, resided in San Juan, Metro Manila where she
was also registered voter. Then, in 1965, following the
election of her husband to the Philippine presidency,
she lived in San Miguel, Manila where she as a voter. In
1978 and thereafter, she served as a member of the
Batasang Pambansa and Governor of Metro Manila.
"She could not, have served these positions if she had
not been a resident of Metro Manila," the COMELEC
stressed. Here is where the confusion lies.
We have stated, many times in the past, that an
individual does not lose his domicile even if he has lived
and maintained residences in different places.
Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The
absence from legal residence or domicile to pursue a
profession, to study or to do other things of a temporary
or semi-permanent nature does not constitute loss of
residence. Thus, the assertion by the COMELEC that
"she could not have been a resident of Tacloban City
since childhood up to the time she filed her certificate of
candidacy because she became a resident of many
places" flies in the face of settled jurisprudence in which
this Court carefully made distinctions between (actual)
residence and domicile for election law purposes.
In Larena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so
holds that a person who has his own
house wherein he lives with his family in
a municipality without having ever had
the intention of abandoning it, and
without having lived either alone or with
his family in another municipality, has
his residence in the former municipality,
notwithstanding his having registered as
an elector in the other municipality in
question and having been a candidate
for various insular and provincial
positions, stating every time that he is a
resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We
explained that:
A citizen may leave the place of his birth
to look for "greener pastures," as the
saying goes, to improve his lot, and that,
of course includes study in other places,
practice of his avocation, or engaging in
business. When an election is to be
held, the citizen who left his birthplace to
improve his lot may desire to return to
his native town to cast his ballot but for
 professional or business reasons, or for
any other reason, he may not absent
himself from his professional or
business activities; so there he registers
himself as voter as he has the
qualifications to be one and is not willing
to give up or lose the opportunity to
choose the officials who are to run the
government especially in national
elections. Despite such registration,
the animus revertendi to his home, to
his domicile or residence of origin has
not forsaken him. This may be the
explanation why the registration of a
voter in a place other than his residence
of origin has not been deemed sufficient
to constitute abandonment or loss of
such residence. It finds justification in
the natural desire and longing of every
person to return to his place of birth.
This strong feeling of attachment to the
place of one's birth must be overcome
by positive proof of abandonment for
another.
From the foregoing, it can be concluded that in its
above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of
Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's
various places of (actual) residence, not her domicile. In
doing so, it not only ignored settled jurisprudence on
residence in election law and the deliberations of the
constitutional commission but also the provisions of the
Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of
facts which establish the fact of petitioner's domicile,
which we lift verbatim from the COMELEC's Second
Division's assailed Resolution: 36
In or about 1938 when respondent was
a little over 8 years old, she established
her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy
Infant Academy in Tacloban from 1938
to 1949 when she graduated from high
school. She pursued her college studies
in St. Paul's College, now Divine Word
University in Tacloban, where she
earned her degree in Education.
Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In
1952 she went to Manila to work with
her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of
Representatives. In 1954, she married
ex-President Ferdinand E. Marcos when
he was still a congressman of Ilocos
Norte and registered there as a voter.
When her husband was elected Senator
of the Republic in 1959, she and her
husband lived together in San Juan,
Rizal where she registered as a voter. In
1965, when her husband was elected
President of the Republic of the
Philippines, she lived with him in
Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that)
she and her family were abducted and
kidnapped to Honolulu, Hawaii. In
November 1991, she came home to
Manila. In 1992, respondent ran for
election as President of the Philippines
51 | P a g e
and filed her Certificate of Candidacy
wherein she indicated that she is a
resident and registered voter of San
Juan, Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the last
four decades. None of these purposes unequivocally
point to an intention to abandon her domicile of origin in
Tacloban, Leyte. Moreover, while petitioner was born in
Manila, as a minor she naturally followed the domicile of
her parents. She grew up in Tacloban, reached her
adulthood there and eventually established residence in
different parts of the country for various reasons. Even
during her husband's presidency, at the height of the
Marcos Regime's powers, petitioner kept her close ties
to her domicile of origin by establishing residences in
Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting
well-publicized projects for the benefit of her province
and hometown, and establishing a political power base
where her siblings and close relatives held positions of
power either through the ballot or by appointment,
always with either her influence or consent. These well-
publicized ties to her domicile of origin are part of the
history and lore of the quarter century of Marcos power
in our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the country
always knew: the fact of petitioner's domicile in
Tacloban, Leyte.
Private respondent in his Comment, contends that
Tacloban was not petitioner's domicile of origin because
she did not live there until she was eight years old. He
avers that after leaving the place in 1952, she
"abandoned her residency (sic) therein for many years
and . . . (could not) re-establish her domicile in said
place by merely expressing her intention to live there
again." We do not agree.
First, minor follows the domicile of his parents. As
domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioner's
being born in Manila, Tacloban, Leyte was her domicile
of origin by operation of law. This domicile was not
established only when her father brought his family
back to Leyte contrary to private respondent's
averments.
Second, domicile of origin is not easily lost. To
successfully effect a change of domicile, one must
demonstrate: 37
1. An actual removal or an actual
change of domicile;
2. A bona fide intention of abandoning
the former place of residence and
establishing a new one; and
3. Acts which correspond with the
purpose.
In the absence of clear and positive proof based on
these criteria, the residence of origin should be deemed
to continue. Only with evidence showing concurrence of
all three requirements can the presumption of continuity
or residence be rebutted, for a change of residence
requires an actual and deliberate abandonment, and
one cannot have two legal residences at the same
time. 38 In the case at bench, the evidence adduced by
private respondent plainly lacks the degree of
persuasiveness required to convince this court that an
abandonment of domicile of origin in favor of a domicile
of choice indeed occurred. To effect an abandonment
requires the voluntary act of relinquishing petitioner's
former domicile with an intent to supplant the former
domicile with one of her own choosing (domicilium
voluntarium).
In this connection, it cannot be correctly argued that
petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President
Ferdinand E. Marcos in 1952. For there is a clearly
established distinction between the Civil Code concepts
of "domicile" and "residence." 39 The presumption that
the wife automatically gains the husband's domicile by
operation of law upon marriage cannot be inferred from
the use of the term "residence" in Article 110 of the Civil
Code because the Civil Code is one area where the two
concepts are well delineated. Dr. Arturo Tolentino,
writing on this specific area explains:
In the Civil Code, there is an obvious
difference between domicile and
residence. Both terms imply relations
between a person and a place; but in
residence, the relation is one of fact
while in domicile it is legal or juridical,
independent of the necessity of physical
presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to
the concepts of domicile or residence as they affect the
female spouse upon marriage yields nothing which
would suggest that the female spouse automatically
loses her domicile of origin in favor of the husband's
choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the
Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su
marido donde quiera que fije su
residencia. Los Tribunales, sin
embargo, podran con justa causa
eximirla de esta obligacion cuando el
marido transende su residencia a
ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de
residencia" in the aforequoted article, which means
wherever (the husband) wishes to establish residence.
This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a
family home or residence. Moreover, this interpretation
is further strengthened by the phrase "cuando el marido
translade su residencia" in the same provision which
means, "when the husband shall transfer his
residence," referring to another positive act of relocating
the family to another home or place of actual residence.
The article obviously cannot be understood to refer to
domicile which is a fixed,
fairly-permanent concept when it plainly connotes the
possibility of transferring from one place to another not
only once, but as often as the husband may deem fit to
move his family, a circumstance more consistent with
the concept of actual residence.
The right of the husband to fix the actual residence is in
harmony with the intention of the law to strengthen and
unify the family, recognizing the fact that the husband
52 | P a g e
and the wife bring into the marriage different domiciles
(of origin). This difference could, for the sake of family
unity, be reconciled only by allowing the husband to fix
a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found
under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE.
Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are
obligated to live together, observe
mutual respect and fidelity and render
mutual help and support.
The duty to live together can only be fulfilled if the
husband and wife are physically together. This takes
into account the situations where the couple has many
residences (as in the case of the petitioner). If the
husband has to stay in or transfer to any one of their
residences, the wife should necessarily be with him in
order that they may "live together." Hence, it is illogical
to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a
situation where the wife is left in the domicile while the
husband, for professional or other reasons, stays in one
of their (various) residences. As Dr. Tolentino further
explains:
Residence and Domicile Whether the
word "residence" as used with reference
to particular matters is synonymous with
"domicile" is a question of some
difficulty, and the ultimate decision must
be made from a consideration of the
purpose and intent with which the word
is used. Sometimes they are used
synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material
fact, referring to the physical presence
of a person in a place. A person can
have two or more residences, such as a
country residence and a city residence.
Residence is acquired by living in place;
on the other hand, domicile can exist
without actually living in the place. The
important thing for domicile is that, once
residence has been established in one
place, there be an intention to stay there
permanently, even if residence is also
established in some other
place. 41
In fact, even the matter of a common residence
between the husband and the wife during the marriage
is not an iron-clad principle; In cases applying the Civil
Code on the question of a common matrimonial
residence, our jurisprudence has recognized certain
situations 42 where the spouses could not be compelled
to live with each other such that the wife is either
allowed to maintain a residence different from that of
her husband or, for obviously practical reasons, revert
to her original domicile (apart from being allowed to opt
for a new one). In De la Vina vs.Villareal 43 this Court
held that "[a] married woman may acquire a residence
or domicile separate from that of her husband during
the existence of the marriage where the husband has
given cause for divorce." 44 Note that the Court allowed
the wife either to obtain new residence or to choose a
new domicile in such an event. In instances where the
wife actually opts, .under the Civil Code, to live
separately from her husband either by taking new
residence or reverting to her domicile of origin, the
Court has held that the wife could not be compelled to
live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we
are convinced that it is not within the
province of the courts of this country to
attempt to compel one of the spouses to
cohabit with, and render conjugal rights
to, the other. Of course where the
property rights of one of the pair are
invaded, an action for restitution of such
rights can be maintained. But we are
disinclined to sanction the doctrine that
an order, enforcible (sic) by process of
contempt, may be entered to compel the
restitution of the purely personal right of
consortium. At best such an order can
be effective for no other purpose than to
compel the spouses to live under the
same roof; and he experience of those
countries where the courts of justice
have assumed to compel the
cohabitation of married people shows
that the policy of the practice is
extremely questionable. Thus in
England, formerly the Ecclesiastical
Court entertained suits for the restitution
of conjugal rights at the instance of
either husband or wife; and if the facts
were found to warrant it, that court
would make a mandatory decree,
enforceable by process of contempt in
case of disobedience, requiring the
delinquent party to live with the other
and render conjugal rights. Yet this
practice was sometimes criticized even
by the judges who felt bound to enforce
such orders, and in Weldon
v. Weldon (9 P.D. 52), decided in 1883,
Sir James Hannen, President in the
Probate, Divorce and Admiralty Division
of the High Court of Justice, expressed
his regret that the English law on the
subject was not the same as that which
prevailed in Scotland, where a decree of
adherence, equivalent to the decree for
the restitution of conjugal rights in
England, could be obtained by the
injured spouse, but could not be
enforced by imprisonment. Accordingly,
in obedience to the growing sentiment
against the practice, the Matrimonial
Causes Act (1884) abolished the
remedy of imprisonment; though a
decree for the restitution of conjugal
rights can still be procured, and in case
of disobedience may serve in
appropriate cases as the basis of an
order for the periodical payment of a
stipend in the character of alimony.
In the voluminous jurisprudence of the
United States, only one court, so far as
we can discover, has ever attempted to
make a preemptory order requiring one
of the spouses to live with the other; and
that was in a case where a wife was
ordered to follow and live with her
husband, who had changed his domicile
to the City of New Orleans. The decision
referred to (Bahn v. Darby, 36 La. Ann.,
70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided
53 | P a g e
many years ago, and the doctrine
evidently has not been fruitful even in
the State of Louisiana. In other states of
the American Union the idea of
enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the
Supreme Court of Spain appears to
have affirmed an order of the Audiencia
Territorial de Valladolid requiring a wife
to return to the marital domicile, and in
the alternative, upon her failure to do so,
to make a particular disposition of
certain money and effects then in her
possession and to deliver to her
husband, as administrator of the
ganancial property, all income, rents,
and interest which might accrue to her
from the property which she had brought
to the marriage. (113 Jur. Civ., pp. 1,
11) But it does not appear that this order
for the return of the wife to the marital
domicile was sanctioned by any other
penalty than the consequences that
would be visited upon her in respect to
the use and control of her property; and
it does not appear that her disobedience
to that order would necessarily have
been followed by imprisonment for
contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged
by virtue of Article 110 of the Civil Code to follow
her husband's actual place of residence fixed by him.
The problem here is that at that time, Mr. Marcos had
several places of residence, among which were San
Juan, Rizal and Batac, Ilocos Norte. There is no
showing which of these places Mr. Marcos did fix as his
family's residence. But assuming that Mr. Marcos had
fixed any of these places as the conjugal residence,
what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.
On the other hand, the common law concept of
"matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential
experiences after the drafting of the Civil Code of 1950,
into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family
Code drafters, the term residence has been supplanted
by the term domicile in an entirely new provision (Art.
69) distinctly different in meaning and spirit from that
found in Article 110. The provision recognizes
revolutionary changes in the concept of women's rights
in the intervening years by making the choice of
domicile a product of mutual agreement between the
spouses. 46
Without as much belaboring the point, the term
residence may mean one thing in civil law (or under the
Civil Code) and quite another thing in political law. What
stands clear is that insofar as the Civil Code is
concerned-affecting the rights and obligations of
husband and wife the term residence should only be
interpreted to mean "actual residence." The inescapable
conclusion derived from this unambiguous civil law
delineation therefore, is that when petitioner married the
former President in 1954, she kept her domicile of origin
and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner
gained a new "domicile" after her marriage and only
acquired a right to choose a new one after her husband
died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly
chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This "choice" was
unequivocally expressed in her letters to the Chairman
of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in
Tacloban and Farm in Olot, Leyte. . . to make them
livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her
residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the
domiciliary intention clearly manifested in her letters to
the PCGG Chairman. She could not have gone straight
to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her
"homes" and "residences" following her arrival in
various parts of Metro Manila merely qualified as
temporary or "actual residences," not domicile.
Moreover, and proceeding from our discussion pointing
out specific situations where the female spouse either
reverts to her domicile of origin or chooses a new one
during the subsistence of the marriage, it would be
highly illogical for us to assume that she cannot regain
her original domicile upon the death of her husband
absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage
itself where the wife gains a domicile different from her
husband.
In the light of all the principles relating to residence and
domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties
weigh heavily in favor of a conclusion supporting
petitioner's claim of legal residence or domicile in the
First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC
had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen
(14) days before the election in violation of Section 78
of the Omnibus Election Code. 48 Moreover, petitioner
contends that it is the House of Representatives
Electoral Tribunal and not the COMELEC which has
jurisdiction over the election of members of the House
of Representatives in accordance with Article VI Sec. 17
of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition
of judgment within a specified time is generally
construed to be merely directory, 49 "so that non-
compliance with them does not invalidate the judgment
on the theory that if the statute had intended such result
it would have clearly indicated it." 50 The difference
between a mandatory and a directory provision is often
made on grounds of necessity. Adopting the same view
held by several American authorities, this court
in Marcelino vs. Cruz held that: 51
The difference between a mandatory
and directory provision is often
determined on grounds of expediency,
the reason being that less injury results
to the general public by disregarding
than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling
for the interpretation of a statute
containing a limitation of thirty (30) days
within which a decree may be entered
without the consent of counsel, it was
held that "the statutory provisions which
may be thus departed from with
impunity, without affecting the validity of
54 | P a g e
statutory proceedings, are usually those
which relate to the mode or time of
doing that which is essential to effect the
aim and purpose of the Legislature or
some incident of the essential act."
Thus, in said case, the statute under
examination was construed merely to be
directory.
The mischief in petitioner's contending that the
COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus Election
Code because it lacked jurisdiction, lies in the fact that
our courts and other quasi-judicial bodies would then
refuse to render judgments merely on the ground of
having failed to reach a decision within a given or
prescribed period.
In any event, with the enactment of Sections 6 and 7 of
R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is
evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending disqualification
case under Section 78 of B.P. 881 even after the
elections.
As to the House of Representatives Electoral Tribunal's
supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as the
sole judge of all contests relating to the elections,
returns and qualifications of members of Congress
begins only after a candidate has become a member of
the House of Representatives. 53 Petitioner not being a
member of the House of Representatives, it is obvious
that the HRET at this point has no jurisdiction over the
question.
It would be an abdication of many of the ideals
enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on
the basis of the personality of a petitioner in a case.
Obviously a distinction was made on such a ground
here. Surely, many established principles of law, even
of election laws were flouted for the sake perpetuating
power during the pre-EDSA regime. We renege on
these sacred ideals, including the meaning and spirit of
EDSA ourselves bending established principles of
principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we
condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner
possesses the necessary residence qualifications to run
for a seat in the House of Representatives in the First
District of Leyte, the COMELEC's questioned
Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC
is hereby directed to order the Provincial Board of
Canvassers to proclaim petitioner as the duly elected
Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are
alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their
unalikeness.1 Like other candidates, petitioner has
clearly met the residence requirement provided by
Section 6, Article VI of the Constitution.2 We cannot
disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from
the following factual and legal propositions:
First. There is no question that petitioner's original
domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents
when she was a minor; and her domicile of choice, as
she continued living there even after reaching the age
of majority.
Second. There is also no question that in May, 1954,
petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became
subject to change by law, and the right to change it was
given by Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the
Republic.3 (Emphasis supplied)
In De la Via v. Villareal and Geopano,4 this
Court explained why the domicile of the wife
ought to follow that of the husband. We held:
"The reason is founded upon the theoretic
identity of person and interest between the
husband and the wife, and the presumption that,
from the nature of the relation, the home of one
is the home of the other. It is intended to
promote, strengthen, and secure their interests
in this relation, as it ordinarily exists, where
union and harmony prevail."5 In accord with this
objective, Article 109 of the Civil Code also
obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did
not cause her to lose her Tacloban domicile. Article 110
of the Civil Code merely gave the husband the right to
fix the domicile of the family. In the exercise of the right,
the husband may explicitly choose the prior domicile of
his wife, in which case, the wife's domicile remains
unchanged. The husband can also implicitly acquiesce
to his wife's prior domicile even if it is different. So we
held in de la Via,6
. . . . When married women as well as
children subject to parental authority
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have
their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but
the deliberate choice of a different domicile by
the husband that will change the domicile of a
wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the
exercise of the right conferred by Article 110 of
55 | P a g e
the Civil Code binds the wife. Any and all acts of
a wife during her coverture contrary to the
domiciliary choice of the husband cannot
change in any way the domicile legally fixed by
the husband. These acts are void not only
because the wife lacks the capacity to choose
her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former
President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where
he was then the congressman. At that particular point of
time and throughout their married life, petitioner lost her
domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as
Senator, when they lived in San Juan, Rizal and where
she registered as a voter. It was not also affected in
1965 when her husband was elected President, when
they lived in Malacaang Palace, and when she
registered as a voter in San Miguel, Manila. Nor was it
affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and
Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of
the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large
degree, this follows the common law that "a woman on
her marriage loses her own domicile and by operation
of law, acquires that of her husband, no matter where
the wife actually lives or what she believes or intends."7
Fourth. The more difficult task is how to interpret the
effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The
issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is
espoused by our distinguished colleague, Mr. Justice
Davide, Jr., heavily relying on American authorities.8 He
echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American
case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can
no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of
the husband and denied to her the power of acquiring a
domicile of her own separate and apart from him.9 Legal
scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that
"the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and
consolidated into that of the husband."10 The second
reason lies in "the desirability of having the interests of
each member of the family unit governed by the same
law."11 The presumption that the wife retains the
domicile of her deceased husband is an extension of
this common law concept. The concept and its
extension have provided some of the most iniquitous
jurisprudence against women. It was under common
law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the
right to practice law. It was unblushingly ruled that "the
natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the
occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice
Davide in CJS 13 and AM JUR 2d14 are American state
court decisions handed down between the years
191715 and 1938,16 or before the time when women were
accorded equality of rights with men. Undeniably, the
women's liberation movement resulted in far-ranging
state legislations in the United States to eliminate
gender inequality.17 Starting in the decade of the
seventies, the courts likewise liberalized their rulings as
they started invalidating laws infected with gender-bias.
It was in 1971 when the US Supreme Court in Reed
v.Reed,18 struck a big blow for women equality when it
declared as unconstitutional an Idaho law that required
probate courts to choose male family members over
females as estate administrators. It held that mere
administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the
iniquitous common law surrendering the rights of
married women to their husbands based on the dubious
theory of the parties' theoretic oneness. The Corpus
Juris Secundum editors did not miss the relevance of
this revolution on women's right as they observed:
"However, it has been declared that under modern
statutes changing the status of married women and
departing from the common law theory of
marriage, there is no reason why a wife may not acquire
a separate domicile for every purpose known to the
law."19In publishing in 1969 the Restatement of the Law,
Second (Conflict of Laws 2d), the reputable American
Law Institute also categorically stated that the view of
Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses
practically the same rights and powers as her unmarried
sister."20
In the case at bench, we have to decide whether we
should continue clinging to the anachronistic common
law that demeans women, especially married women. I
submit that the Court has no choice except to break
away from this common law rule, the root of the many
degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender
discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a
few of them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that
under the Civil Code, wives suffer under
certain restrictions or disabilities. For
instance, the wife cannot accept gifts
from others, regardless of the sex of the
giver or the value of the gift, other than
from her very close relatives, without her
husband's consent. She may accept
only from, say, her parents, parents-in-
law, brothers, sisters and the relatives
within the so-called fourth civil degree.
She may not exercise her profession or
occupation or engage in business if her
husband objects on serious grounds or
if his income is sufficient to support their
family in accordance with their social
standing. As to what constitutes "serious
grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable
situation, the amendments to the Civil
Law being proposed by the University of
the Philippines Law Center would allow
absolute divorce which severes the
matrimonial ties, such that the divorced
spouses are free to get married a year
after the divorce is decreed by the
56 | P a g e
courts. However, in order to place the
husband and wife on an equal footing
insofar as the bases for divorce are
concerned, the following are specified
as the grounds for absolute divorce: (1)
adultery or having a paramour
committed by the respondent in any of
the ways specified in the Revised Penal
Code or (2) an attempt by the
respondent against the life of the
petitioner which amounts to attempted
parricide under the Revised Penal
Code; (3) abandonment of the petitioner
by the respondent without just cause for
a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the
husband is automatically the
administrator of the conjugal property
owned in common by the married
couple even if the wife may be the more
astute or enterprising partner. The law
does not leave it to the spouses to
decide who shall act as such
administrator. Consequently, the
husband is authorized to engage in acts
and enter into transactions beneficial to
the conjugal partnership. The wife,
however, cannot similarly bind the
partnership without the husband's
consent.
And while both exercise joint parental
authority over their children, it is the
father whom the law designates as the
legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted
efforts, principally through legislations, to
eliminate inequality between men and women in
our land. The watershed came on August 3,
1988 when our Family Code took effect which,
among others, terminated the unequal treatment
of husband and wife as to their rights and
responsibilities.22
The Family Code attained this elusive objective by
giving new rights to married women and by abolishing
sex-based privileges of husbands. Among others,
married women are now given the joint right to
administer the family property, whether in the absolute
community system or in the system of conjugal
partnership;23 joint parental authority over their minor
children, both over their persons as well as their
properties;24 joint responsibility for the support of the
family;25 the right to jointly manage the household;26 and,
the right to object to their husband's exercise of
profession, occupation, business or activity.27 Of
particular relevance to the case at bench is Article 69 of
the Family Code which took away the exclusive right of
the husband to fix the family domicile and gave it jointly
to the husband and the wife, thus:
Art. 69. The husband and wife shall fix
the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from
living with the other if the latter should
live abroad or there are other valid and
compelling reasons for the exemption.
However, such exemption shall not
apply if the same is not compatible with
 the solidarity of the family. (Emphasis of the UP Law Center gave this insightful view in
supplied) one of his rare lectures after retirement:29

Article 69 repealed Article 110 of the Civil Code.
Commenting on the duty of the husband and
wife to live together, former Madam Justice
Alice Sempio-Diy of the Court of Appeals
specified the instances when a wife may now
refuse to live with her husband, thus:28
(2) The wife has the duty to live with her
husband, but she may refuse to do so in
certain cases like:
(a) If the place chosen
by the husband as family
residence is dangerous
to her Life;
(b) If the husband
subjects her to
maltreatment or abusive
conduct or insults,
making common life
impossible;
(c) If the husband
compels her to live with
his parents, but she
cannot get along with
her mother-in-law and
they have constant
quarrels (Del Rosario v.
Del Rosario, CA, 46 OG
6122);
xxx xxx xxx
The Family Code is primarily intended to
reform the family law so as to
emancipate the wife from the exclusive
control of the husband and to place her
at parity with him insofar as the family is
concerned. The wife and the husband
are now placed on equal standing by the
Code. They are now joint administrators
of the family properties and exercise
joint authority over the persons and
properties of their children. This means
a dual authority in the family. The
husband will no longer prevail over the
wife but she has to agree on all matters
concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the
inequality between husband and wife as started
and perpetuated by the common law, there is no
reason in espousing the anomalous rule that the
wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which
provides the statutory support for this stance
has been repealed by Article 69 of the Family
Code. By its repeal, it becomes a dead-letter
law, and we are not free to resurrect it by giving
it further effect in any way or manner such as by
ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.

(d) Where the husband Aside from reckoning with the Family Code, we have to
has continuously carried consider our Constitution and its firm guarantees of due
illicit relations for 10 process and equal protection of
years with different law.30 It can hardly be doubted that the common law
women and treated his imposition on a married woman of her dead husband's
wife roughly and without domicile even beyond his grave is patently
consideration. (Dadivas discriminatory to women. It is a gender-based
v. Villanueva, 54 Phil. discrimination and is not rationally related to the
92); objective of promoting family solidarity. It cannot survive
a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is
(e) Where the husband
more concerned with equality between sexes as it
spent his time in
explicitly commands that the State ". . . shall ensure
gambling, giving no
fundamental equality before the law of women and
money to his family for
men." To be exact, section 14, Article II provides: "The
food and necessities,
State recognizes the role of women in nation building,
and at the same time
and shall ensure fundamental equality before the law of
insulting his wife and
women and men. We shall be transgressing the sense
laying hands on her.
and essence of this constitutional mandate if we insist
(Panuncio v. Sula, CA,
on giving our women the caveman's treatment.
34 OG 129);
Prescinding from these premises, I respectfully submit
(f) If the husband has no
that the better stance is to rule that petitioner reacquired
fixed residence and lives
her Tacloban domicile upon the death of her husband in
a vagabond life as a
1989. This is the necessary consequence of the view
tramp (1 Manresa 329);
that petitioner's Batac dictated domicile did not continue
after her husband's death; otherwise, she would have
(g) If the husband is no domicile and that will violate the universal rule that
carrying on a shameful no person can be without a domicile at any point of
business at home (Gahn time. This stance also restores the right of petitioner to
v. Darby, 38 La. Ann. choose her domicile before it was taken away by Article
70). 110 of the Civil Code, a right now recognized by the
Family Code and protected by the Constitution.
The inescapable conclusion is that our Family Likewise, I cannot see the fairness of the common law
Code has completely emancipated the wife from requiring petitioner to choose again her Tacloban
the control of the husband, thus abandoning the domicile before she could be released from her Batac
parties' theoretic identity of interest. No less domicile. She lost her Tacloban domicile not through
than the late revered Mr. Justice J.B.L. Reyes her act but through the act of her deceased husband
who chaired the Civil Code Revision Committee when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law

57 | P a g e
disabling her to choose her own domicile has been
repealed. Considering all these, common law should not
put the burden on petitioner to prove she has
abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for
convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample
evidence to this effect. In her affidavit submitted to the
respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to
our beloved country, after several
requests for my return were denied by
President Corazon C. Aquino, and after
I filed suits for our Government to issue
me my passport.
37. But I came home without the mortal
remains of my beloved husband,
President Ferdinand E. Marcos, which
the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I
wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte,
even if my residences there were not
livable as they had been destroyed and
cannibalized. The PCGG, however, did
not permit and allow me.
39. As a consequence, I had to live at
various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment
on Ayala Avenue, a house in South
Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential
Elections, I lived and resided in the
residence of my brother in San Jose,
Tacloban City, and pursued my
negotiations with PCGG to recover my
sequestered residences in Tacloban
City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for
my observance of All
Saints' Day and All
Souls' Day that year, I
renovated my parents'
burial grounds and
entombed their bones
which had been
excalvated, unearthed
and scattered.
41. On November 29, 1993, I formally
wrote PCGG Chairman Magtanggol
Gunigundo for permissions to
. . . rehabilitate . . . (o)ur
ancestral house in
Tacloban and farmhouse
in Olot, Leyte . . . to
make them livable for us
the Marcos family to
have a home in our own
motherland.
xxx xxx xxx
58 | P a g e
42. It was only on 06 June 1994,
however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8
Representative, allowed me to repair
and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by
Mrs. Imelda R. Marcos
to this Commission, that
she intends to visit our
sequestered properties
in Leyte, please allow
her access thereto. She
may also cause repairs
and renovation of the
sequestered properties,
in which event, it shall be
understood that her
undertaking said repairs
is not authorization for
her to take over said
properties, and that all
expenses shall be for
her account and not
reimbursable. Please
extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Nio Shrine
residence in Tacloban City where I
wanted to stay and reside, after repairs
and renovations were completed. In
August 1994, I transferred from San
Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live
there.
It is then clear that in 1992 petitioner
reestablished her domicile in the First District of
Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to
negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed
with the Board of Election Inspectors of Precinct 10-A of
Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's
Registration Record on January 28, 1995.31 This
statement in petitioner's Voter's Registration Record is
a non-prejudicial admission. The Constitution requires
at least one (1) year residence in the district in which
the candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprovethat she
has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the
First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's
Certificate of Candidacy filed on March 8, 199532 where
she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the
constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March
1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of
Candidacy,33 petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy
to correct a bona fide mistake has been allowed by this
Court as a matter of course and as a matter of right. As
we held in Alialy v. COMELEC,34 viz.:
xxx xxx xxx
The absence of the signature of the
Secretary of the local chapter N.P in the
original certificate of candidacy
presented before the deadline
September 11, 1959, did not render the
certificate invalid. The amendment of
the certificate, although at a date after
the deadline, but before the election,
was substantial compliance with the law,
and the defect was cured.
It goes without saying that petitioner's erroneous
Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private
respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's
Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the
evidence of the petitioner showing her
ceaseless contacts with Tacloban, private
respondent's two (2) pieces of evidence are too
insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the
First District of Leyte who have overwhelmingly
voted for her.
Fifth. Section 10, Article IX-C of the Constitution
mandates that "bona fide candidates for any public
office shall be free from any form of harassment and
discrimination."35 A detached reading of the records of
the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against
petitioner to prevent her from running as the people's
representative in the First District of Leyte. In
petitioner's Answer to the petition to disqualify her, she
averred:36
xxx xxx xxx
10. Petitioner's (herein private
respondent Montejo) motive in filing the
instant petition is devious. When
respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner (Montejo) immediately
opposed her intended registration by
writing a letter stating that "she is not a
resident of said city but of Barangay
Olot, Tolosa, Leyte." (Annex "2" of
respondent's affidavit, Annex "2"). After
respondent (petitioner herein) had
registered as a voter in Tolosa following
59 | P a g e
completion of her six-month actual
residence therein, petitioner (Montejo)
filed a petition with the COMELEC to
transfer the town of Tolosa from the
First District to the Second District and
pursued such move up to the Supreme
Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner
herein) as petitioner's (Montejo's)
opponent in the congressional election
in the First District. He also filed a bill,
along with other Leyte Congressmen,
seeking to create another legislative
district, to remove the town of Tolosa
out of the First District and to make it a
part of the new district, to achieve his
purpose. However, such bill did not pass
the Senate. Having, failed on such
moves, petitioner now filed the instant
petition, for the same objective, as it is
obvious that he is afraid to submit
himself along with respondent (petitioner
herein) for the judgment and verdict of
the electorate of the First District of
Leyte in an honest, orderly, peaceful,
free and clean elections on May 8,
1995.
These allegations which private respondent did
not challenge were not lost
to the perceptive eye of Commissioner
Maambong who in his Dissenting
Opinion,37 held:
xxx xxx xxx
Prior to the registration date January
28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election
Officer of Tacloban City not to allow
respondent (petitioner herein) to register
thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of
this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND
No. 95-001 (In the matter of the
Legislative Districts of the Provinces of
Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran,
Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality
of Tolosa, in the First District of Leyte,
transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of
Leyte, opposed the move of the
petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29,
1994), the Commission on Elections
refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied
in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo)
filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections,
G.R. No. 118702) questioning the
resolution of the Commission. Believing
that he could get a favorable ruling from
the Supreme Court, petitioner (Montejo)
tried to make sure that the respondent
(petitioner herein) will register as a voter
in Tolosa so that she will be forced to
 run as Representative not in the First
but in the Second District.
It did not happen. On March 16, 1995,
the Honorable Supreme Court
unanimously promulgated a "Decision,"
penned by Associate Justice Reynato S.
Puno, the dispositive portion of which
reads:
IN VIEW WHEREOF,
Section 1 of Resolution
No. 2736 insofar as it
transferred the
municipality of
Capoocan of the Second
District and the
municipality of Palompon
of the Fourth District to
the Third District of the
province of Leyte, is
annulled and set aside.
We also deny the
Petition praying for the
transfer of the
municipality of Tolosa
from the First District to
the Second District of
the province of Leyte. No
costs.
Petitioner's (Montejo's) plan did not
work. But the respondent (petitioner
herein) was constrained to register in
the Municipality of Tolosa where her
house is instead of Tacloban City, her
domicile. In any case, both Tacloban
City and Tolosa are in the First
Legislative District.
All these attempts to misuse our laws and legal
processes are forms of rank harassments and
invidious discriminations against petitioner to
deny her equal access to a public office. We
cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of
equality, the end result of which will allow the
harassment and discrimination of petitioner who
has lived a controversial life, a past of
alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be
adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to
inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,38 we explained that the reason
for this residence requirement is "to exclude a stranger
or newcomer, unacquainted, with the conditions and
needs of a community and not identified with the latter,
from an elective office to serve that community . . . ."
Petitioner's lifetime contacts with the First District of
Leyte cannot be contested. Nobody can claim that she
is not acquainted with its problems because she is a
stranger to the place. None can argue she cannot
satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant
consideration is the need to effectuate the will of the
electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-
Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of
the electorate of the First District of Leyte and this is not
a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case
60 | P a g e
of doubt, we should lean towards a rule that will give life
to the people's political judgment.
A final point. The case at bench provides the Court with
the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous
common law precedents on the domicile of married
women and by redefining domicile in accord with our
own culture, law, and Constitution. To rule that a
married woman is eternally tethered to the domicile
dictated by her dead husband is to preserve the
anachronistic and anomalous balance of advantage of a
husband over his wife. We should not allow the dead to
govern the living even if the glories of yesteryears
seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married
women and we should not excavate what has been
entombed. More importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding
petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish,
however, to express a few comments on the issue of
petitioner's domicile.
Domicile has been defined as that place in which a
person's habitation is fixed, without any present
intention of removing therefrom, and that place is
properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere
special or temporary purpose, but with a present
intention of making it his permanent home (28 C.J.S.
1). It denotes a fixed permanent residence to which
when absent for business, or pleasure, or for like
reasons one intends to return, and depends on facts
and circumstances, in the sense that they disclose
intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile
of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents,
or of the head of his family, or of the person on whom
he is legally dependent at the time of his birth. While the
domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. 5).
Domicile of choice, on the other hand, is the place
which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In
order to hold that a person has abandoned his domicile
and acquired a new one called domicile of choice, the
following requisites must concur, namely, (a) residence
or bodily presence in the new locality, (b) intention to
remain there or animus manendi, and (c) an intention to
abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City,
226 SCRA 408, 415). A third classification is domicile
by operation of law which attributes to a person a
domicile independent of his own intention or actual
residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or
the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of
residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199
SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections
misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed
to comply with the constitutionally mandated one-year
residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and
registration as voter in many places as conduct
disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several
decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of
origin is not sufficient to constitute abandonment or loss
of such residence (Faypon v. Quirino, 96 Phil. 294,
300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin
was supplanted by a new domicile due to her marriage,
a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she
makes an actual change thereof. I find this proposition
quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which
was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the
law is for the spouses to fully and effectively perform
their marital duties and obligations to one another.1 The
question of domicile, however, is not affected by the fact
that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. 11). Thus, while the
wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's
termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite
absurd and unfair situation of having been freed from all
wifely obligations yet made to hold on to one which no
longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her
original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect.
It is for the private respondent to prove, not for
petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or
for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person
has abandoned or lost his residence of origin who must
show and prove preponderantly such abandonment or
loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16),
because the presumption is strongly in favor of an
original or former domicile, as against an acquired one
(28 C.J.S. 16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of
convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her
domicile of origin.
The records, on the contrary, clearly show that
petitioner has complied with the constitutional one-year
residence requirement. After her exile abroad, she
returned to the Philippines in 1991 to reside in Olot,
Tolosa, Leyte, but the Presidential Commission on
Good Government which sequestered her residential
house and other properties forbade her necessitating
her transient stay in various places in Manila (Affidavit
p.6, attached as Annex I of the Petition). In 1992, she
ran for the position of president writing in her certificate
of candidacy her residence as San Juan, Metro Manila.
After her loss therein, she went back to Tacloban City,
acquired her residence certificate2 and resided with her
brother in San Jose. She resided in San Jose, Tacloban
City until August of 1994 when she was allowed by the
PCGG to move and reside in her sequestered
61 | P a g e
residential house in Olot, Tolosa, Leyte (Annex I, p.
6).3 It was in the same month of August when she
applied for the cancellation of her previous registration
in San Juan, Metro Manila in order to register anew as
voter of Olot, Tolosa, Leyte, which she did on January
28, 1995. From this sequence of events, I find it quite
improper to use as the reckoning period of the one-year
residence requirement the date when she applied for
the cancellation of her previous registration in San
Juan, Metro Manila. The fact which private respondent
never bothered to disprove is that petitioner transferred
her residence after the 1992 presidential election from
San Juan, Metro Manila to San Jose, Tacloban City,
and resided therein until August of 1994. She later
transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It
appearing that both Tacloban City and Tolosa, Leyte
are within the First Congressional District of Leyte, it
indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the
COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event
that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a
straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past,
but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its
Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on
April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995,
a day before the election; then because she persisted in
running, its decision on
May 11, 1995 or three days after the election, allowing
her proclamation in the event that the results of the
canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had
won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be
suspended.
Crucial to the resolution of the disqualification issue
presented by the case at bench is the interpretation to
be given to the one-year residency requirement
imposed by the Constitution on aspirants for a
Congressional seat.1
Bearing in mind that the term "resident" has been held
to be synonymous with "domicile" for election purposes,
it is important to determine whether petitioner's domicile
was in the First District of Leyte and if so, whether she
had resided there for at least a period of one year.
Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been
changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did,
his death certainly released her from the obligation to
live with him at the residence fixed by him during his
lifetime. What may confuse the layman at this point is
the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of
law," which subject we shall not belabor since it has
been amply discussed by the ponente and in the other
separate opinions.
In any case, what assumes relevance is the divergence
of legal opinion as to the effect of the husband's death
on the domicile of the widow. Some scholars opine that
the widow's domicile remains unchanged; that the
deceased husband's wishes perforce still bind the wife
he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of
the family, as laid down in the Civil Code,2 but to
continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to
live together has ceased, is to close one's eyes to the
stark realities of the present.
At the other extreme is the position that the widow
automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow
with a domicile? To answer this question which is far
from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile.
Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject
to.
At this juncture, we are confronted with an unexplored
legal terrain in this jurisdiction, rendered more murky by
the conflicting opinions of foreign legal authorities. This
being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light
of truth, as dictated by experience and the necessity of
according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than
men.
Admittedly, the notion of placing women at par with
men, insofar as civil, political and social rights are
concerned, is a relatively recent phenomenon that took
seed only in the middle of this century. It is a historical
fact that for over three centuries, the Philippines had
been colonized by Spain, a conservative, Catholic
country which transplanted to our shores the Old World
cultures, mores and attitudes and values. Through the
imposition on our government of the Spanish Civil Code
in 1889, the people, both men and women, had no
choice but to accept such concepts as the husband's
being the head of the family and the wife's
subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many
instances come to mind, foremost being what is related
to the issue before us, namely, that "the husband shall
fix the residence of the family." 3 Because he is made
responsible for the support of the wife and the rest of
the family, 4 he is also empowered to be the
administrator of the conjugal property, with a few
exceptions 5 and may, therefore, dispose of the
conjugal partnership property for the purposes
specified under the law;6 whereas, as a general rule,
the wife cannot bind the conjugal partnership
without the husband's consent.7 As regards the
property pertaining to the children under parental
authority, the father is the legal administrator and
only in his absence may the mother assume his
powers.8 Demeaning to the wife's dignity are certain
strictures on her personal freedoms, practically
relegating her to the position of minors and
disabled persons. To illustrate a few: The wife
cannot, without the husband's consent, acquire any
gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives
62 | P a g e
within the fourth degree.9 With respect to her
employment, the husband wields a veto power in
the case the wife exercises her profession or
occupation or engages in business, provided his
income is sufficient for the family, according to its
social standing and his opposition is founded on
serious and valid grounds. 10 Most offensive, if not
repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after
three hundred days following the death of her
husband, unless in the meantime, she has given
birth to a child. 11 The mother who contracts a
subsequent marriage loses the parental authority
over her children, unless the deceased husband,
father of the latter, has expressly provided in his
will that his widow might marry again, and has
ordered that in such case she should keep and
exercise parental authority over their
children. 12 Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by
Filipino wives for hundreds of years evoked no
protest from them until the concept of human rights
and equality between and among nations and
individuals found hospitable lodgment in the United
Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the
American forces at the turn of the century. The
bedrock of the U.N. Charter was firmly anchored on
this credo: "to reaffirm faith in the fundamental
human rights, in the dignity and worth of the human
person, in the equal rights of men and women."
(Emphasis supplied)
It took over thirty years before these
egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement.
What may be regarded as the international
bill of rights for women was implanted in the
Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly
which entered into force as an international
treaty on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to
implement its liberating spirit and letter, for
its Constitution, no less, declared that "The
Philippines. . . adopts the generally accepted
principles of international law as part of the
law of the land and adheres to the policy of
peace, equality, justice, freedom,
cooperation, and amity with all
nations." 13 One such principle embodied in
the CEDAW is granting to men and women
"the same rights with regard to the law
relating to the movement of persons and
the freedom to choose their residence and
domicile." 14(Emphasis supplied).
CEDAW's pro-women orientation which was not lost
on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the
Family Code, 15 both of which were speedily
approved by the first lady President of the country,
Corazon C. Aquino. Notable for its emphasis on the
human rights of all individuals and its bias for
equality between the sexes are the following
provisions: "The State values the dignity of every
human person and guarantees full respect for
human rights"16 and "The State recognizes the role
of women in nation-building, and shall ensure the
fundamental equality before the law of women and
men."17
A major accomplishment of women in their quest for
equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now
given the right jointly to fix the family
domicile;18 concomitant to the spouses' being jointly
responsible for the support of the family is the right and
duty of both spouses to manage the household;19 the
administration and the enjoyment of the community
property shall belong to both spouses jointly;20 the father
and mother shall now jointly exercise legal guardianship
over the property of their unemancipated common
child21 and several others.
Aware of the hiatus and continuing gaps in the law,
insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in
Development and Nation Building Act"22 Among the
rights given to married women evidencing their capacity
to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain
loans and execute security and credit arrangements
under the same conditions as men;
(2) Women shall have equal access to all government
and private sector programs granting agricultural credit,
loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement
programs;
(3) Women shall have equal rights to act as
incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of
married men in applying for passports, secure visas and
other travel documents, without need to secure the
consent of their spouses.
As the world draws the curtain on the Fourth World
Conference of Women in Beijing, let this Court now be
the first to respond to its clarion call that "Women's
Rights are Human Rights" and that "All obstacles to
women's full participation in decision-making at all
levels, including the family" should be removed. Having
been herself a Member of the Philippine Delegation to
the International Women's Year Conference in Mexico
in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of
discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and
global, legislative, executive and judicial, according
more rights to women hitherto denied them and
eliminating whatever pockets of discrimination still exist
in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their
domicile upon the death of their husbands but must
retain the same, regardless?
I submit that a widow, like the petitioner and others
similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt
to reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa,
both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her
election of a domicile of choice, in this case, a reversion
to her domicile of origin. Added together, the time when
63 | P a g e
she set up her domicile in the two places sufficed to
meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT
the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A compliant transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities
of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be
mandatory in character unless, either by express
statement or by necessary implication, a different
intention is manifest (see Marcelino vs. Cruz, 121
SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all
laws and regulations relative to the conduct of election .
. ." (Art. IX, C, Sec. 2, Constitution) that, there being
nothing said to the contrary, should include its authority
to pass upon the qualification and disqualification
prescribed by law of candidates to an elective office.
Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. The issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by
this Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the
Commission on Elections dictated solely on the number
of votes cast in an election exercise. I believe, it is not.
A ministerial duty is an obligation the performance of
64 | P a g e
which, being adequately defined, does not allow the use
of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of
ascertaining all the facts and conditions such as may be
required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least,
refrain from any undue encroachment on the ultimate
exercise of authority by the Electoral Tribunals on
matters which, by no less than a constitutional fiat, are
explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the
Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns
and qualification" of its members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
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. Nevertheless,
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, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the
argument that it should be sound to say that votes cast
in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in
his or her favor and must accordingly be considered to
be stray votes. The argument, nevertheless, is far
outweighed by the rationale of the now prevailing
doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687
[1981]), and Santos vs. COMELEC (137 SCRA 740
[1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253
[1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs. Comelec was a unanimous decision penned by
Justice Kapunan and concurred in by Chief Justice
Narvasa, Justices Feliciano, Padilla, Bidin, Regalado,
Davide, Romero, Melo, Quiason, Puno, Vitug and
Mendoza (Justices Cruz and Bellosillo were on official
leave). For easy reference, let me quote from the
first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warrantopetition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.)
and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court
finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and
democratic rule. That case, which
reiterated the doctrine first announced in
1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent,
although one reserved his vote,
(Makasiar, J.) another took no part,
(Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:
. . . it would be extremely
repugnant to the basic
concept of the
65 | P a g e
constitutionally
guaranteed right to
suffrage if a candidate
who has not acquired
the majority or plurality
of votes is proclaimed a
winner and imposed as
the representative of a
constituency, the
majority of which have
positively declared
through their ballots that
they do not choose him.
Sound policy dictates
that public elective
offices are filled by those
who have received the
highest number of votes
cast in the election for
that office, and it is a
fundamental idea in all
republican forms of
government that no one
can be declared elected
and no measure can be
declared carried unless
he or it receives a
majority or plurality of
the legal votes cast in
the election. (20 Corpus
Juris 2nd, S 243, p.
676.)
The fact that the candidate who
obtained the highest number of votes is
later declared to be disqualified or not
eligible for the office to which he was
elected does not necessarily entitle the
candidate who obtained the second
highest number of votes to be declared
the winner of the elective office. The
votes cast for a dead, disqualified, or
non-eligible person may not be valid to
vote the winner into office or maintain
him there. However, in the absence of a
statute which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote
for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the
Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the
office to which they seek to be elected. I think that it has
none and that the qualifications of candidates may be
questioned only in the event they are elected, by filing a
petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC
but, as in this case, in the House of Representatives
Electoral Tribunal. That the parties in this case took part
in the proceedings in the COMELEC is of no moment.
Such proceedings were unauthorized and were not
rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for
authorized proceedings for determining a candidate's
qualifications for an office before his election. There are
none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or
in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo
warrantoproceedings against winning candidates.
To be sure, there are provisions denominated for
"disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a
person either to be a candidate or to continue as a
candidate for public office. There is also a provision for
the denial or cancellation of certificates of candidacy,
but it applies only to cases involving false
representations as to certain matters required by law to
be stated in the certificates.
These provisions are found in the following parts of the
Omnibus Election Code:
12. Disqualifications. Any person
who has been declared by competent
authority insane or incompetent, or has
been sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been
sentenced to a penalty of more than
eighteen months or for a crime involving
moral turpitude, shall be disqualified to
be a candidate and to hold any office,
unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate
herein provided shall be deemed
removed upon the declaration by
competent authority that said insanity or
incompetence had been removed or
after the expiration of a period of five
years from his service of sentence,
unless within the same period he again
becomes disqualified. (Emphasis
added)
68. Disqualifications. Any candidate
who, in an action or protest in which he
is a party is declared by final decision of
a competent court guilty of, or found by
the Commission of having (a) given
money or other material consideration to
influence, induce or corrupt the voters or
public officials performing electoral
functions; (b) committed acts of
terrorism to enhance his candidacy; (c)
spent in his election campaign an
amount in excess of that allowed by this
Code; (d) solicited, received or made
any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be
disqualified from continuing as a
candidate, or if he has been elected,
from holding the office. Any person who
is a permanent resident of or an
immigrant to a foreign country shall not
be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident
or immigrant of a foreign country in
accordance with the residence
66 | P a g e
requirement provided for in the election
laws. (Emphasis added)
78. Petition to deny due course to or
cancel a certificate of
candidacy. A verified petition seeking
to deny due course or to cancel a
certificate of candidacy may be filed by
any person exclusively on the ground
that any material representation
contained therein as required under
Section 74 hereof is false. The petition
may be filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy and
shall be decided, after due notice and
hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No.
6646):
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 for 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. (Emphasis added).
7. Petition to Deny Due Course to or
Cancel a Certificate of Candidacy.
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A.
No. 7160):
40. Disqualifications. The following
persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment
for an offense involving moral turpitude
or for an offense punishable by one (1)
year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a
result of on administrative case;
(c) Those convicted by final judgment
for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
 (f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy
Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no
allegation that private respondent Imelda Romualdez-
Marcos made material representations in her certificate
of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her
Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May
8, 1995, [she] would have resided less than ten (10)
months in the district where she is seeking to be
elected." For its part, the COMELEC's Second Division,
in its resolution of April 24, 1995, cancelled her
certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the
House of Representatives for the First Legislative
District of Leyte" and not because of any finding that
she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore
not a petition for cancellation of certificate of candidacy
under 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent
ineligible. It is important to note this, because, as will
presently be explained, proceedings under 78 have
for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have
for their purpose to disqualify a person from
holding public office. Jurisdiction over quo
warranto proceedings involving members of the House
of Representatives is vested in the Electoral Tribunal of
that body.
Indeed, in the only cases in which this Court dealt with
petitions for the cancellation of certificates of candidacy,
the allegations were that the respondent candidates had
made false representations in their certificates of
candidacy with regard to
their citizenship,1 age,2 or residence.3 But in the
generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so
in the context of election protests4 or quo
warrantoproceedings5 filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of
an authorized proceeding for determining before
election the qualifications of a candidate.
First is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g.,
vote buying, over spending, commission of prohibited
acts) is a prejudicial question which should be
determined lest he wins because of the very acts for
which his disqualification is being sought. That is why it
is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for
and he has won, either he will not be proclaimed or his
proclamation will be set aside.6
67 | P a g e
Second is the fact that the determination of a
candidate's eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion
case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after
the elections of May 8, 1995. This is contrary to the
summary character of proceedings relating to
certificates of candidacy. That is why the law makes the
receipt of certificates of candidacy a ministerial duty of
the COMELEC and its officers.7 The law is satisfied if
candidates state in their certificates of candidacy that
they are eligible for the position which they seek to fill,
leaving the determination of their qualifications to be
made after the election and only in the event they are
elected. Only in cases involving charges of false
representations made in certificates of candidacy is the
COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice
President, Senators and members of the House of
Representatives. (R.A. No. 7166, 15) The purpose is
to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of
Congress or of the President and Vice President, as the
case may be.
By providing in 253 for the remedy of quo warranto for
determining an elected official's qualifications after the
results of elections are proclaimed, while being
conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election
Code, or OEC, by its silence underscores the policy of
not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized
proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993
so as to provide in Rule 25, 1 the following:
Grounds for disqualification. Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law
or who commits any act declared by law
to be grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause
of action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power
under Art. IX, A, 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving
the right to vote, which essentially involves an inquiry
into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification
is contrary to the evident intention of the law. For not
only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for
a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code
and in 40 of the Local Government Code and are for
the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during
its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice
versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the law does not imply
that he does not suffer from any of disqualifications
provided in 4.
Indeed, provisions for disqualifications on the ground
that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of
"grabbing the proclamation and prolonging the election
protest,"8 through the use of "manufactured" election
returns or resort to other trickery for the purpose of
altering the results of the election. This rationale does
not apply to cases for determining a candidate's
qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding
for disqualification is brought who could be prejudiced
because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a
candidate may only be sought in an election protest or
action for quo warranto filed pursuant to 253 of the
Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials
(e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be
filed either with the COMELEC, the Regional Trial
Courts, or Municipal Trial Courts, as provided in Art. IX,
C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed
with the Presidential Electoral Tribunal (Art. VII, 4, last
paragraph), and in the case of the Senators, with the
Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater
reason for not allowing before the election the filing of
disqualification proceedings based on alleged
ineligibility in the case of candidates for President, Vice
President, Senators and members of the House of
Representatives, because of the same policy prohibiting
the filing of pre-proclamation cases against such
candidates.
For these reasons, I am of the opinion that the
COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its
questioned orders, are void; and that the eligibility of
petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA
No. 95-009, including its questioned orders doted April
24, 1995, May 7, 1995, May 11, 1995 and May 25,
1995, declaring petitioner Imelda Romualdez-Marcos
ineligible and ordering her proclamation as
Representative of the First District of Leyte suspended.
To the extent that Rule 25 of the COMELEC Rules of
Procedure authorizes proceedings for the
68 | P a g e
disqualification of candidates on the ground of
ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed
with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as
expressed in the well-written ponencia of Mr. Justice
Kapunan.
As in any controversy arising out of a Constitutional
provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred
by what, to me, are academic disquisitions. In this
particular controversy, the Constitutional provision on
point states that "no person shall be a member of the
House of Representatives unless he is a natural-born
citizen of the Philippines, and on the day of the election,
is at least twenty-five (25) years of age, able to read
and write, and except the party list representatives, a
registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the
election." (Article VI, section 6)
It has been argued that for purposes of our election
laws, the term residence has been understood as
synonymous with domicile. This argument has been
validated by no less than the Court in numerous
cases1 where significantly the factual
circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with
his personal presence in the place, coupled with
conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase
"a resident thereof (meaning, the legislative district) for
a period of not less than one year" would fit.
The first instance is where a person's residence and
domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a
residence apart from his domicile in which case he
would have the luxury of district shopping, provided of
course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally
disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of
choice; neither would one be disqualified for
abandoning altogether his domicile in favor of his
residence in the district where he desires to be a
candidate.
The most extreme circumstance would be a situation
wherein a person maintains several residences in
different districts. Since his domicile of origin continues
as an option as long as there is no effective
abandonment (animus non revertendi), he can
practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered
by the unambiguous limitation that "for a period of not
less than one year immediately preceding the day of the
election", he must be a resident in the district where he
desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the
candidate's intent and actual presence in one district
must in allsituations satisfy the length of time prescribed
by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to
represent in Congress and the one-year residence in
said district would be the minimum period to acquire
such familiarity, if not versatility.
Registration (Annex 2-C, Answer)
stating that she is a duly registered voter
in 157-A, Brgy. Maytunas, San Juan,
Metro that she intends to register at
Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with
the Board of Election Inspectors CE
Form No. 1, Voter Registration Record
No. 94-3349772, wherein she alleged
that she has resided in the municipality
of Tolosa for a period of 6 months
(Annex A, Petition).

In the case of petitioner Imelda R. Marcos, the operative On March 8, 1995, respondent filed with
facts are distinctly set out in the now assailed decision the Office of the Provincial Election
of the Comelec 2nd Division dated 24 April 1995 (as Supervisor, Leyte, a Certificate of
affirmed by the Comelec en banc) Candidacy for the position of
Representative of the First District of
In or about 1938 when respondent was Leyte wherein she also alleged that she
a little over 8 years old, she established has been a resident in the constituency
her domicile in Tacloban, Leyte where she seeks to be elected for a
(Tacloban City). She studied in the Holy period of 7 months. The pertinent
Infant Academy in Tacloban from 1938 entries therein are as follows:
to 1948 when she graduated from high
school. She pursued her college studies 7.
in St. Paul's College, now Divine Word PROFES
University of Tacloban, where she SION OR
earned her degree in Education. OCCUPA
Thereafter, she taught in the Leyte TION:
Chinese High School, still in Tacloban House-
City. In 1952 she went to Manila to work wife/
with her cousin, the late Speaker Daniel Teacher/
Z. Romualdez in his office in the House Social
of Representatives. In 1954, she Worker
married ex-president Ferdinand Marcos
when he was still a congressman of 8.
Ilocos Norte. She lived with him in RESIDE
Batac, Ilocos Norte and registered there NCE
as a voter. When her husband was (complet
elected Senator of the Republic in 1959, e
she and her husband lived together in address):
San Juan, Rizal where she registered as Brgy.
a voter. In 1965 when her husband was Olot,
elected President of the Republic of the Tolosa,
Philippines, she lived with him in Leyte
Malacanang Palace and registered as a
voter in San Miguel, Manila. Post
Office
During the Marcos presidency, Address
respondent served as a Member of the for
Batasang Pambansa, Minister of Human election
Settlements and Governor of Metro purposes
Manila. She claimed that in February : Brgy.
1986, she and her family were abducted Olot,
and kidnapped to Honolulu, Hawaii. In Tolosa,
November 1991, she came home to Leyte
Manila. In 1992 respondent ran for
election as President of the Philippines 9.
and filed her Certificate of Candidacy RESIDE
wherein she indicated that she is a NCE IN
resident and registered voter of San THE
Juan, Metro Manila. On August 24, CONSTI
1994, respondent filed a letter with the TUENCY
election officer of San Juan, Metro WHEREI
Manila, requesting for cancellation of N I SEEK
her registration in the Permanent List of TO BE
Voters in Precinct No. 157 of San Juan, ELECTE
Metro Manila, in order that she may be D
re-registered or transferred to Brgy. IMMEDIA
Olot, Tolosa, Leyte. (Annex 2-B, TELY
Answer). On August 31, 1994, PRECED
respondent filed her Sworn Application ING
for Cancellation of Voter's Previous ELECTIO

69 | P a g e
 N:
_______
_
Years Se
venMont
hs

10. I AM
NOT A
PERMAN
ENT
RESIDE
NT OF,
OR
IMMIGR
ANT TO,
A
FOREIG Petitioner's aforestated certificate of candidacy filed on
N 8 March 1995 contains the decisive component or seed
COUNTR of her disqualification. It is contained in her answer
Y. under oath of "seven months" to the query of "residence
in the constituency wherein I seek to be elected
immediately preceding the election."
THAT I AM ELIGIBLE for said office;
That I will support and defend the
Constitution of the Republic of the It follows from all the above that the Comelec committed
Philippines and will maintain true faith no grave abuse of discretion in holding that petitioner is
and allegiance thereto; That I will obey disqualified from the position of representative for the
the laws, legal orders and decrees 1st congressional district of Leyte in the elections of
promulgated by the duly-constituted 8 May 1995, for failure to meet the "not less than one-
authorities; That the obligation imposed year residence in the constituency (1st district, Leyte)
by my oath is assumed voluntarily, immediately preceding the day of election
without mental reservation or purpose of (8 May 1995)."
evasion; and That the facts stated
herein are true to the best of my Having arrived at petitioner's disqualification to be a
knowledge. representative of the first district of Leyte, the next
important issue to resolve is whether or not the
Comelec can order ( the Board of Canvassers to
determine and proclaim
S the winner out of the remaining
qualified candidates
g for representative in said district.
d
I am not unaware.of the pronouncement made by this
Court in the case )of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale
as laid down in theI early 1912 case of Topacio
vs. Paredes, 23 Phil.
m 238 that:
e
. .l. . Sound policy dictates that public
elective
d offices are filled by those who
have
a received the highest number of
votes cast in the election for that office,
andR it is a fundamental idea in all
republican
o forms of government that no
onem can be declared elected and no
measure
u can be declared carried unless
heaor it receives a majority or plurality of
thel legal votes cast in the election. (20
Corpus
d Juris 2nd, S 243, p. 676)
e
Thez fact that the candidate who
-
obtained the highest number of votes is
M declared to be disqualified or not
later
a
eligible for the office to which he was
r
elected does not necessarily entitle the
c
candidate who obtained the second
o
highest number of votes to be declared
thes winner of the elective office. The
votes cast for a dead, disqualified, or
(
non-eligible person may not be valid to
S the winner into office or maintain
vote
himi there. However, in the absence of a
g
statute which clearly asserts a contrary
n
political and legislative policy on the
a
matter, if the votes were cast in the
t
sincere belief that the candidate was
u qualified, or eligible, they should
alive,
r
e
70 | P a g e
 not be treated as stray, void or
meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional
Reforms in the Electoral System and for other
purposes) (84 O.G. 905, 22 February 1988) it is
provided that:
. . . Any candidate who has been
declared by final judgment to be
disqualified shall not be voted for, and
the votes cast for him shall not be
counted. 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 is no need to indulge in legal hermeneutics to
sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the
legislative policy does not limit its concern with the
effect of a final judgement of disqualification
only before the election, but even during or after the
election. The law is clear that in all situations, the votes
cast for a disqualified candidate SHALL NOT BE
COUNTED. The law has also validated the jurisdiction
of the Court or Commission on Election to continue
hearing the petition for disqualification in case a
candidate is voted for and receives the highest number
of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the
power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. What
happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall
not be counted" and in legal contemplation, he no
longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not
make the second placer the winner simply because a
"winning candidate is disqualified," but that the law
considers him as the candidate who had obtained the
highest number of votes as a result of the votes cast for
the disqualified candidate not being counted or
considered.
As this law clearly reflects the legislative policy on the
matter, then there is no reason why this Court should
not re-examine and consequently abandon the doctrine
in the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no
less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to
order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of
votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
71 | P a g e
While I agree with same of the factual bases of the
majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which
assuredly is not formulated "on the basis of the
personality of a petitioner in a case."
I go along with the majority in their narration of
antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the
present Tacloban City, she being a
legitimate daughter of parents who
appear to have taken up permanent
residence therein. She also went to
school there and, for a time, taught in
one of the schools in that city.
2. When she married then Rep.
Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during
the events that happened thereafter, her
husband having been elected as a
Senator and then as President, she
lived with him and their family in San
Juan, Rizal and then in Malacanang
Palace in San Miguel, Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also
in San Miguel, Manila, all these merely
in the exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos
Norte where he maintained his
residence and invariably voted in all
elections.
6. After the ouster of her husband from
the presidency in 1986 and the sojourn
of the Marcos family in Honolulu,
Hawaii, U.S.A., she eventually returned
to the Philippines in 1991 and resided in
different places which she claimed to
have been merely temporary
residences.
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated
that she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter
for the cancellation of her registration in
the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in
order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this
up with her Sworn Application for
Cancellation of Voter's Previous
Registration wherein she stated that she
was a registered voter in Precinct No.
157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.
 9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte, for which
purpose she filed with the therein Board
of Election Inspectors a voter's
registration record form alleging that she
had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed
her certificate of candidacy for the
position of Representative of the First
District of Leyte wherein she alleged
that she had been a resident for
"Seven Months" of the constituency
where she sought to be elected.
11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item
"8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was
changed or replaced with a new entry
reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of
her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no
less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my
colleagues with a dissertation on the difference between
residence and domicile. We have had enough of that
and I understand that for purposes of political law and,
for that matter of international law, residence is
understood to be synonymous with domicile. That is so
understood in our jurisprudence and in American Law,
in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws
whenever an issue thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of
choice and domicile by operation of law, as understood
in American law from which for this case we have taken
our jurisprudential bearings.
My readings inform me that the domicile of the parents
at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until
abandoned, or until the acquisition of a new domicile in
a different place.1 In the instant case, we may grant that
petitioner's domicile of origin, 2 at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be
of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the
common case of the place of birth or domicilium
originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is
consequential, as that of a wife arising from
marriage,3 is sometimes called domicilium necesarium.
There is no debate that the domicile of origin can be lost
or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then
Rep. Marcos, by operation of law, not only international
or American but of our own enactment, 4 she acquired
72 | P a g e
her husband's domicile of origin in Batac, Ilocos Norte
and correspondingly lost her own domicile of origin in
Tacloban City.
Her subsequent changes of residence to San Juan,
Rizal, then to San Miguel, Manila, thereafter to
Honolulu, Hawaii, and back to now San Juan, Metro
Manila do not appear to have resulted in her thereby
acquiring new domiciles of choice. In fact, it appears
that her having resided in those places was by reason
of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu
and, of course, those after her return to the Philippines
were, as she claimed, against her will or only for
transient purposes which could not have invested them
with the status of domiciles of choice.5
After petitioner's return to the Philippines in 1991 and
up to the present imbroglio over her requisite residency
in Tacloban City or Olot, Tolosa, Leyte, there is no
showing that she ever attempted to acquire any other
domicile of choice which could have resulted in the
abandonment of her legal domicile in Batac, Ilocos
Norte. On that score, we note the majority's own
submission 6 that, to successfully effect a change of
domicile, one must demonstrate (a) an actual removal
or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of
residence and establishing a new one, and (c) acts
which correspond with the purpose.
We consequently have to also note that these
requirements for the acquisition of a domicile of choice
apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or
a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which
had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte
which, if at all, can be the object of legal change under
the contingencies of the case at bar.
To get out of this quandary, the majority decision
echoes the dissenting opinion of Commissioner
Regalado E. Maambong in SPA 95-009 of the
Commission on Elections,7 and advances this novel
proposition.
It may be said that petitioner lost her
domicile of origin by operation of law as
a result of her marriage to the late
President Ferdinand E. Marcos in 1952
(sic, 1954). By operation of law
(domicilium necesarium), her legal
domicile at the time of her marriage
became Batac, Ilocos Norte although
there were no indications of an intention
on her part to abandon her domicile of
origin. Because of her husband's
subsequent death and through the
operation of the provisions of the New
Family Code already in force at the time,
however, her legal domicile
automatically reverted to her domicile of
origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that
petitioner had acquired a domicilium necesarium in
Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her
domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's
domicile is at any given time, and not her self-serving or
putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one
cannot have more than one domicile at a time,8 the
majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does
not exist therein) the equivalent of what is fancied as a
reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can
only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility
of an automatic reversion to or reacquisition of a
domicile of origin after the termination of the cause for
its loss by operation of law. The majority agrees that
since petitioner lost her domicile of origin by her
marriage, the termination of the marriage also
terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find
some difficulty in accepting either the logic or the
validity of this argument.
If a party loses his domicile of origin by obtaining a new
domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his
original domicile unless, by subsequent acts legally
indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of
choice cannot automatically restore his domicile of
origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its
logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very
well have obtained another domicile, either of choice or
by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly
does not regulate this contingency since it would
impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume
that she entered into the marital state against her will)
but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of
origin. With much more reason, therefore, should we
reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per
se and ipso facto reacquired her domicile of origin
which she lost in 1954. Otherwise, this would be
tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and
enjoyment of a domicile of origin which was only in a
state of suspended animation.
Thus, the American rule is likewise to the effect that
while after the husband's death the wife has the right to
elect her own domicile,9 she nevertheless retains the
last domicile of her deceased husband until she makes
an actual change. 10 In the absence of affirmative
evidence, to the contrary, the presumption is that a
wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support
of the majority's theory based on Articles 68 and 69 of
the Family Code. All that is of any relevance therein is
that under this new code, the right and power to fix the
family domicile is now shared by the spouses. I cannot
perceive how that joint right, which in the first place was
never exercised by the spouses, could affect the
73 | P a g e
domicile fixed by the law for petitioner in 1954 and, for
her husband, long prior thereto. It is true that a wife now
has the coordinate power to determine
the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each
of her children having gotten married and established
their own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the
present factual setting of this controversy. Instead, what
is of concern in petitioner's case was the matter of her
having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of
the growing and expanded participation of women in the
affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial
pronouncement which either expressly or by necessary
implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium
originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern
this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned
phrase.
In sum, petitioner having lost Tacloban City as her
domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she
cannot legally claim that her residency in the political
constituency of which it is a part continued since her
birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that
effect in her amended/corrected certificate of candidacy,
and in holding her to her admission in the original
certificate that she had actually resided in that
constituency for only seven months prior to the election.
These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS
the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority
written by Mr. Justice Santiago M. Kapunan, more
particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the
Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the
Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if
the COMELEC has acted without or in excess of
jurisdiction or with grave abuse of discretion (Section 1,
Rule 65, Rules of Court). Since the COMELEC has,
undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave
abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged
resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much
less grave abuse thereof. The resolution of the Second
Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil
that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the
COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of
origin, which is allegedly within the First Congressional
District of Leyte.
I respectfully submit that the petitioner herself has
provided the COMELEC, either by admission or by
documentary evidence, overwhelming proof of the loss
or abandonment of her domicile of origin, which is
Tacloban City and not Tolosa, Leyte. Assuming that she
decided to live again in her domicile of origin, that
became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a
candidate for the position of Representative of the First
Congressional District of Leyte. A holding to the
contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile
of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime
in May 1954 upon her marriage to the then
Congressman (later, President) Ferdinand E. Marcos. A
domicile by operation of law is that domicile which the
law attributes to a person, independently of his own
intention or actual residence, as results from legal
domestic relations as that of the wife arising from
marriage (28 C.J.S. Domicile 7, 11). Under the
governing law then, Article 110 of the Civil Code, her
new domicile or her domicile of choice was the domicile
of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in
the wife. For instance, under article 117
the wife may engage in business or
practice a profession or occupation. But
because of the power of the husband to
fix the family domicilehe may fix it at
such a place as would make it
impossible for the wife to continue in
business or in her profession. For
justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion
by the wife who refuses to follow him to
a new place of residence, when it
appears that they have lived for years in
a suitable home belonging to the wife,
and that his choice of a different home is
not made in good faith. (Commentaries
and Jurisprudence on the Civil Code of
the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses
her own domicile and, by operation of law, acquires that
of her husband, no matter where the wife actually lives
74 | P a g e
or what she believes or intends. Her domicile is fixed in
the sense that it is declared to be the same as his, and
subject to certain limitations, he can change her
domicile by changing his own (25 Am Jur 2d Domicile
48, 37).
It must, however, be pointed out that under Article 69 of
the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a
joint decision of the spouses, and in case of
disagreement the court shall decide. The said article
uses the term "family domicile," and not family
residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of
such residences, which may destroy the duty of the
spouses to live together and its corresponding benefits"
(ALICIA V. SEMPIO-DIY, Handbook on the Family
Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's
domicile of origin upon the death of her husband, which
the majority opinion adopts to overcome the legal effect
of the petitioner's marriage on her domicile, is
unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a
right to elect her own domicile, but she retains the last
domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death
of the husband, the power of the wife to acquire her
own domicile is revived, but until she exercises the
power her domicile remains that of the husband at the
time of his death (25 Am Jur 2d Domicile 62, 45).
Note that what is revived is not her domicile of origin
but her power to acquire her own domicile.
Clearly, even after the death of her husband, the
petitioner's domicile was that of her husband at the time
of his death which was Batac, Ilocos Norte, since
their residences in San Juan, Metro Manila, and San
Miguel, Manila, were their residences for convenience
to enable her husband to effectively perform his official
duties. Their residence in San Juan was a conjugal
home, and it was there to which she returned in 1991
when she was already a widow. In her sworn certificate
of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated
therein that she was a resident of San Juan, Metro
Manila. She also voted in the said elections in that
place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to
acquire her own domicile in Tolosa, Leyte, through her
sworn statement requesting the Election Officer of San
Juan, Metro Manila, to cancel her registration in the
permanent list of voters in Precinct 157 thereat and
praying that she be "re-registered or transferred to Brgy.
Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B,"
attached as Annex "2" of private respondent Montejo's
Comment). Notably, she contradicted this sworn
statement regarding her place of birth when, in her
Voter's Affidavit sworn to on 15 March 1992 (photocopy
of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995
(photocopy of Exhibit "E," attached as Annex "5," Id.),
and her Certificate of Candidacy sworn to on 8 March
1995 (photocopy of Exhibit "A," attached as Annex
"1," Id.), she solemnly declared that she was born in
Manila.
The petitioner is even uncertain as to her domicile of
origin. Is it Tacloban City or Tolosa, Leyte? In the
affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared
under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or
residence of origin why did she inform the Election
Officer of San Juan that she would transfer to Olot,
Tolosa, Leyte, and indicate in her Voter's Registration
Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty
is not important insofar as residence in the
congressional district is concerned, it nevertheless
proves that forty-one years had already lapsed since
she had lost or abandoned her domicile of origin by
virtue of marriage and that such length of time
diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority
opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and
the subsequent cases which established the principle
that absence from original residence or domicile of
origin to pursue studies, practice one's profession, or
engage in business in other states does not constitute
loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in
private and public service; educational activities; work in
military or naval reservations; service in the army, navy
or air force, the constabulary or national police force; or
confinement or detention in government institutions in
accordance with law" is not deemed as loss of original
residence. Those cases and legal provision do not
include marriage of a woman. The reason for the
exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to
consider the marriage of a woman as a circumstance
which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the
same.
This Court should not accept as gospel truth the self-
serving claim of the petitioner in her affidavit (Annex "A"
of her Answer in COMELEC SPA No. 95-009; Annex "I"
of Petition) that her "domicile or residence of origin is
Tacloban City," and that she "never intended to
abandon this domicile or residence of origin to which
[she] always intended to return whenever absent." Such
a claim of intention cannot prevail over the effect of
Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life
after her marriage in 1954 conclusively establish that
she had indeed abandoned her domicile of origin and
had acquired a new one animo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and
Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in
the certificate of candidacy. Such a claim is self-serving
and, in the light of the foregoing disquisitions, would be
all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she
stated was the truth.
The majority opinion also disregards a basic rule in
evidence that he who asserts a fact or the affirmative of
an issue has the burden of proving it (Imperial Victory
Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19
[1993]). Having admitted marriage to the then
Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her
domicile to that of her husband. The majority opinion
rules or at least concludes that "[b]y operation of law
(domicilium necesarium), her legal domicile at the time
75 | P a g e
of her marriage automatically became Batac, Ilocos
Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her
deceased husband's domicile until she exercises her
revived power to acquire her own domicile, the burden
is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to
discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are
alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their
unalikeness.1 Like other candidates, petitioner has
clearly met the residence requirement provided by
Section 6, Article VI of the Constitution.2 We cannot
disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from
the following factual and legal propositions:
First. There is no question that petitioner's original
domicile is in Tacloban, Leyte. Her parents were
domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place.
Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents
when she was a minor; and her domicile of choice, as
she continued living there even after reaching the age
of majority.
Second. There is also no question that in May, 1954,
petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became
subject to change by law, and the right to change it was
given by Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the
Republic.3 (Emphasis supplied)
In De la Via v. Villareal and Geopano,4 this
Court explained why the domicile of the wife
ought to follow that of the husband. We held:
"The reason is founded upon the theoretic
identity of person and interest between the
husband and the wife, and the presumption that,
from the nature of the relation, the home of one
is the home of the other. It is intended to
promote, strengthen, and secure their interests
in this relation, as it ordinarily exists, where
union and harmony prevail."5 In accord with this
objective, Article 109 of the Civil Code also
obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I
respectfully submit that her marriage by itself alone did
not cause her to lose her Tacloban domicile. Article 110
of the Civil Code merely gave the husband the right to
fix the domicile of the family. In the exercise of the right,
the husband may explicitly choose the prior domicile of
his wife, in which case, the wife's domicile remains
unchanged. The husband can also implicitly acquiesce
to his wife's prior domicile even if it is different. So we
held in de la Via,6
. . . . When married women as well as
children subject to parental authority
live, with the acquiescence of their
husbands or fathers, in a place distinct
from where the latter live, they have
their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but
the deliberate choice of a different domicile by
the husband that will change the domicile of a
wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the
exercise of the right conferred by Article 110 of
the Civil Code binds the wife. Any and all acts of
a wife during her coverture contrary to the
domiciliary choice of the husband cannot
change in any way the domicile legally fixed by
the husband. These acts are void not only
because the wife lacks the capacity to choose
her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former
President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where
he was then the congressman. At that particular point of
time and throughout their married life, petitioner lost her
domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as
Senator, when they lived in San Juan, Rizal and where
she registered as a voter. It was not also affected in
1965 when her husband was elected President, when
they lived in Malacaang Palace, and when she
registered as a voter in San Miguel, Manila. Nor was it
affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and
Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of
the Civil Code, it was only her husband who could
change the family domicile in Batac and the evidence
shows he did not effect any such change. To a large
degree, this follows the common law that "a woman on
her marriage loses her own domicile and by operation
of law, acquires that of her husband, no matter where
the wife actually lives or what she believes or intends."7
Fourth. The more difficult task is how to interpret the
effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The
issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is
espoused by our distinguished colleague, Mr. Justice
Davide, Jr., heavily relying on American authorities.8 He
echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American
case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can
no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of
the husband and denied to her the power of acquiring a
domicile of her own separate and apart from him.9 Legal
scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by
the legendary Blackstone is derived from the view that
"the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and
consolidated into that of the husband."10 The second
reason lies in "the desirability of having the interests of
76 | P a g e
each member of the family unit governed by the same
law."11 The presumption that the wife retains the
domicile of her deceased husband is an extension of
this common law concept. The concept and its
extension have provided some of the most iniquitous
jurisprudence against women. It was under common
law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the
right to practice law. It was unblushingly ruled that "the
natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the
occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice
Davide in CJS 13 and AM JUR 2d14 are American state
court decisions handed down between the years
191715 and 1938,16 or before the time when women were
accorded equality of rights with men. Undeniably, the
women's liberation movement resulted in far-ranging
state legislations in the United States to eliminate
gender inequality.17 Starting in the decade of the
seventies, the courts likewise liberalized their rulings as
they started invalidating laws infected with gender-bias.
It was in 1971 when the US Supreme Court in Reed
v.Reed,18 struck a big blow for women equality when it
declared as unconstitutional an Idaho law that required
probate courts to choose male family members over
females as estate administrators. It held that mere
administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in
case law on the status of women virtually obliterated the
iniquitous common law surrendering the rights of
married women to their husbands based on the dubious
theory of the parties' theoretic oneness. The Corpus
Juris Secundum editors did not miss the relevance of
this revolution on women's right as they observed:
"However, it has been declared that under modern
statutes changing the status of married women and
departing from the common law theory of
marriage, there is no reason why a wife may not acquire
a separate domicile for every purpose known to the
law."19In publishing in 1969 the Restatement of the Law,
Second (Conflict of Laws 2d), the reputable American
Law Institute also categorically stated that the view of
Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses
practically the same rights and powers as her unmarried
sister."20
In the case at bench, we have to decide whether we
should continue clinging to the anachronistic common
law that demeans women, especially married women. I
submit that the Court has no choice except to break
away from this common law rule, the root of the many
degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender
discriminations against women. Our esteemed
colleague, Madam Justice Flerida Ruth Romero, cited a
few of them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that
under the Civil Code, wives suffer under
certain restrictions or disabilities. For
instance, the wife cannot accept gifts
from others, regardless of the sex of the
giver or the value of the gift, other than
from her very close relatives, without her
husband's consent. She may accept
only from, say, her parents, parents-in-
law, brothers, sisters and the relatives
within the so-called fourth civil degree.
She may not exercise her profession or
occupation or engage in business if her
 husband objects on serious grounds or profession, occupation, business or activity.27 Of
if his income is sufficient to support their particular relevance to the case at bench is Article 69 of
family in accordance with their social the Family Code which took away the exclusive right of
standing. As to what constitutes "serious the husband to fix the family domicile and gave it jointly
grounds" for objecting, this is within the to the husband and the wife, thus:
discretion of the husband.
Art. 69. The husband and wife shall fix
xxx xxx xxx the family domicile. In case of
disagreement, the court shall decide.
Because of the present inequitable
situation, the amendments to the Civil The court may exempt one spouse from
Law being proposed by the University of living with the other if the latter should
the Philippines Law Center would allow live abroad or there are other valid and
absolute divorce which severes the compelling reasons for the exemption.
matrimonial ties, such that the divorced However, such exemption shall not
spouses are free to get married a year apply if the same is not compatible with
after the divorce is decreed by the the solidarity of the family. (Emphasis
courts. However, in order to place the supplied)
husband and wife on an equal footing
insofar as the bases for divorce are Article 69 repealed Article 110 of the Civil Code.
concerned, the following are specified Commenting on the duty of the husband and
as the grounds for absolute divorce: (1) wife to live together, former Madam Justice
adultery or having a paramour Alice Sempio-Diy of the Court of Appeals
committed by the respondent in any of specified the instances when a wife may now
the ways specified in the Revised Penal refuse to live with her husband, thus:28
Code or (2) an attempt by the
respondent against the life of the (2) The wife has the duty to live with her
petitioner which amounts to attempted husband, but she may refuse to do so in
parricide under the Revised Penal certain cases like:
Code; (3) abandonment of the petitioner
by the respondent without just cause for
(a) If the place chosen
a period of three consecutive years; or
by the husband as family
(4) habitual maltreatment.
residence is dangerous
to her Life;
With respect to property relations, the
husband is automatically the
(b) If the husband
administrator of the conjugal property
subjects her to
owned in common by the married
maltreatment or abusive
couple even if the wife may be the more
conduct or insults,
astute or enterprising partner. The law
making common life
does not leave it to the spouses to
impossible;
decide who shall act as such
administrator. Consequently, the
husband is authorized to engage in acts (c) If the husband
and enter into transactions beneficial to compels her to live with
the conjugal partnership. The wife, his parents, but she
however, cannot similarly bind the cannot get along with
partnership without the husband's her mother-in-law and
consent. they have constant
quarrels (Del Rosario v.
Del Rosario, CA, 46 OG
And while both exercise joint parental
6122);
authority over their children, it is the
father whom the law designates as the
legal administrator of the property (d) Where the husband
pertaining to the unemancipated child. has continuously carried
illicit relations for 10
years with different
Taking the lead in Asia, our government exerted
women and treated his
efforts, principally through legislations, to
wife roughly and without
eliminate inequality between men and women in
consideration. (Dadivas
our land. The watershed came on August 3,
v. Villanueva, 54 Phil.
1988 when our Family Code took effect which,
92);
among others, terminated the unequal treatment
of husband and wife as to their rights and
responsibilities.22 (e) Where the husband
spent his time in
gambling, giving no
The Family Code attained this elusive objective by
money to his family for
giving new rights to married women and by abolishing
food and necessities,
sex-based privileges of husbands. Among others,
and at the same time
married women are now given the joint right to
insulting his wife and
administer the family property, whether in the absolute
laying hands on her.
community system or in the system of conjugal
(Panuncio v. Sula, CA,
partnership;23 joint parental authority over their minor
34 OG 129);
children, both over their persons as well as their
properties;24 joint responsibility for the support of the
family;25 the right to jointly manage the household;26 and, (f) If the husband has no
the right to object to their husband's exercise of fixed residence and lives

77 | P a g e
 a vagabond life as a
tramp (1 Manresa 329);
(g) If the husband is
carrying on a shameful
business at home (Gahn
v. Darby, 38 La. Ann.
70).
The inescapable conclusion is that our Family
Code has completely emancipated the wife from
the control of the husband, thus abandoning the
parties' theoretic identity of interest. No less
than the late revered Mr. Justice J.B.L. Reyes
who chaired the Civil Code Revision Committee
of the UP Law Center gave this insightful view in
one of his rare lectures after retirement:29
xxx xxx xxx
The Family Code is primarily intended to
reform the family law so as to
emancipate the wife from the exclusive
control of the husband and to place her
at parity with him insofar as the family is
concerned. The wife and the husband
are now placed on equal standing by the
Code. They are now joint administrators
of the family properties and exercise
joint authority over the persons and
properties of their children. This means
a dual authority in the family. The
husband will no longer prevail over the
wife but she has to agree on all matters
concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the
inequality between husband and wife as started
and perpetuated by the common law, there is no
reason in espousing the anomalous rule that the
wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which
provides the statutory support for this stance
has been repealed by Article 69 of the Family
Code. By its repeal, it becomes a dead-letter
law, and we are not free to resurrect it by giving
it further effect in any way or manner such as by
ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to
consider our Constitution and its firm guarantees of due
process and equal protection of
law.30 It can hardly be doubted that the common law
imposition on a married woman of her dead husband's
domicile even beyond his grave is patently
discriminatory to women. It is a gender-based
discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive
a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is
more concerned with equality between sexes as it
explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and
men." To be exact, section 14, Article II provides: "The
State recognizes the role of women in nation building,
and shall ensure fundamental equality before the law of
women and men. We shall be transgressing the sense
and essence of this constitutional mandate if we insist
on giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit
that the better stance is to rule that petitioner reacquired
her Tacloban domicile upon the death of her husband in
1989. This is the necessary consequence of the view
78 | P a g e
that petitioner's Batac dictated domicile did not continue
after her husband's death; otherwise, she would have
no domicile and that will violate the universal rule that
no person can be without a domicile at any point of
time. This stance also restores the right of petitioner to
choose her domicile before it was taken away by Article
110 of the Civil Code, a right now recognized by the
Family Code and protected by the Constitution.
Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban
domicile before she could be released from her Batac
domicile. She lost her Tacloban domicile not through
her act but through the act of her deceased husband
when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law
disabling her to choose her own domicile has been
repealed. Considering all these, common law should not
put the burden on petitioner to prove she has
abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for
convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample
evidence to this effect. In her affidavit submitted to the
respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to
our beloved country, after several
requests for my return were denied by
President Corazon C. Aquino, and after
I filed suits for our Government to issue
me my passport.
37. But I came home without the mortal
remains of my beloved husband,
President Ferdinand E. Marcos, which
the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I
wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte,
even if my residences there were not
livable as they had been destroyed and
cannibalized. The PCGG, however, did
not permit and allow me.
39. As a consequence, I had to live at
various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment
on Ayala Avenue, a house in South
Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential
Elections, I lived and resided in the
residence of my brother in San Jose,
Tacloban City, and pursued my
negotiations with PCGG to recover my
sequestered residences in Tacloban
City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for
my observance of All
Saints' Day and All
Souls' Day that year, I
renovated my parents'
burial grounds and
entombed their bones
which had been
excalvated, unearthed
and scattered.
 41. On November 29, 1993, I formally
wrote PCGG Chairman Magtanggol
Gunigundo for permissions to
. . . rehabilitate . . . (o)ur
ancestral house in
Tacloban and farmhouse
in Olot, Leyte . . . to
make them livable for us
the Marcos family to
have a home in our own
motherland.
xxx xxx xxx
42. It was only on 06 June 1994,
however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8
Representative, allowed me to repair
and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by
Mrs. Imelda R. Marcos
to this Commission, that
she intends to visit our
sequestered properties
in Leyte, please allow
her access thereto. She
may also cause repairs
and renovation of the
sequestered properties,
in which event, it shall be
understood that her
undertaking said repairs
is not authorization for
her to take over said
properties, and that all
expenses shall be for
her account and not
reimbursable. Please
extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live
and stay in the Sto. Nio Shrine
residence in Tacloban City where I
wanted to stay and reside, after repairs
and renovations were completed. In
August 1994, I transferred from San
Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live
there.
It is then clear that in 1992 petitioner
reestablished her domicile in the First District of
Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose,
Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot,
Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of
Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year
immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
79 | P a g e
The evidence presented by the private respondent to
negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed
with the Board of Election Inspectors of Precinct 10-A of
Barangay Olot, Tolosa, Leyte wherein she stated that
her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's
Registration Record on January 28, 1995.31 This
statement in petitioner's Voter's Registration Record is
a non-prejudicial admission. The Constitution requires
at least one (1) year residence in the district in which
the candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprovethat she
has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the
First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's
Certificate of Candidacy filed on March 8, 199532 where
she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the
constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March
1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of
Candidacy,33 petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy
to correct a bona fide mistake has been allowed by this
Court as a matter of course and as a matter of right. As
we held in Alialy v. COMELEC,34 viz.:
xxx xxx xxx
The absence of the signature of the
Secretary of the local chapter N.P in the
original certificate of candidacy
presented before the deadline
September 11, 1959, did not render the
certificate invalid. The amendment of
the certificate, although at a date after
the deadline, but before the election,
was substantial compliance with the law,
and the defect was cured.
It goes without saying that petitioner's erroneous
Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private
respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's
Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the
evidence of the petitioner showing her
ceaseless contacts with Tacloban, private
respondent's two (2) pieces of evidence are too
insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the
First District of Leyte who have overwhelmingly
voted for her.
Fifth. Section 10, Article IX-C of the Constitution
mandates that "bona fide candidates for any public
office shall be free from any form of harassment and
discrimination."35 A detached reading of the records of
the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against
petitioner to prevent her from running as the people's
representative in the First District of Leyte. In
petitioner's Answer to the petition to disqualify her, she
averred:36
xxx xxx xxx
 10. Petitioner's (herein private
respondent Montejo) motive in filing the
instant petition is devious. When
respondent (petitioner herein)
announced that she was intending to
register as a voter in Tacloban City and
run for Congress in the First District of
Leyte, petitioner (Montejo) immediately
opposed her intended registration by
writing a letter stating that "she is not a
resident of said city but of Barangay
Olot, Tolosa, Leyte." (Annex "2" of
respondent's affidavit, Annex "2"). After
respondent (petitioner herein) had
registered as a voter in Tolosa following
completion of her six-month actual
residence therein, petitioner (Montejo)
filed a petition with the COMELEC to
transfer the town of Tolosa from the
First District to the Second District and
pursued such move up to the Supreme
Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner
herein) as petitioner's (Montejo's)
opponent in the congressional election
in the First District. He also filed a bill,
along with other Leyte Congressmen,
seeking to create another legislative
district, to remove the town of Tolosa
out of the First District and to make it a
part of the new district, to achieve his
purpose. However, such bill did not pass
the Senate. Having, failed on such
moves, petitioner now filed the instant
petition, for the same objective, as it is
obvious that he is afraid to submit
himself along with respondent (petitioner
herein) for the judgment and verdict of
the electorate of the First District of
Leyte in an honest, orderly, peaceful,
free and clean elections on May 8,
1995.
These allegations which private respondent did
not challenge were not lost
to the perceptive eye of Commissioner
Maambong who in his Dissenting
Opinion,37 held:
xxx xxx xxx
Prior to the registration date January
28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election
Officer of Tacloban City not to allow
respondent (petitioner herein) to register
thereat since she is a resident of Tolosa
and not Tacloban City. The purpose of
this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND
No. 95-001 (In the matter of the
Legislative Districts of the Provinces of
Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran,
Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality
of Tolosa, in the First District of Leyte,
transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of
Leyte, opposed the move of the
petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29,
1994), the Commission on Elections
refused to make the proposed transfer.
80 | P a g e
Petitioner (Montejo) filed "Motion for
Reconsideration of Resolution
No. 2736" which the Commission denied
in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo)
filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections,
G.R. No. 118702) questioning the
resolution of the Commission. Believing
that he could get a favorable ruling from
the Supreme Court, petitioner (Montejo)
tried to make sure that the respondent
(petitioner herein) will register as a voter
in Tolosa so that she will be forced to
run as Representative not in the First
but in the Second District.
It did not happen. On March 16, 1995,
the Honorable Supreme Court
unanimously promulgated a "Decision,"
penned by Associate Justice Reynato S.
Puno, the dispositive portion of which
reads:
IN VIEW WHEREOF,
Section 1 of Resolution
No. 2736 insofar as it
transferred the
municipality of
Capoocan of the Second
District and the
municipality of Palompon
of the Fourth District to
the Third District of the
province of Leyte, is
annulled and set aside.
We also deny the
Petition praying for the
transfer of the
municipality of Tolosa
from the First District to
the Second District of
the province of Leyte. No
costs.
Petitioner's (Montejo's) plan did not
work. But the respondent (petitioner
herein) was constrained to register in
the Municipality of Tolosa where her
house is instead of Tacloban City, her
domicile. In any case, both Tacloban
City and Tolosa are in the First
Legislative District.
All these attempts to misuse our laws and legal
processes are forms of rank harassments and
invidious discriminations against petitioner to
deny her equal access to a public office. We
cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of
equality, the end result of which will allow the
harassment and discrimination of petitioner who
has lived a controversial life, a past of
alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be
adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to
inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,38 we explained that the reason
for this residence requirement is "to exclude a stranger
or newcomer, unacquainted, with the conditions and
needs of a community and not identified with the latter,
from an elective office to serve that community . . . ."
Petitioner's lifetime contacts with the First District of
Leyte cannot be contested. Nobody can claim that she
is not acquainted with its problems because she is a
stranger to the place. None can argue she cannot
satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant
consideration is the need to effectuate the will of the
electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-
Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of
the electorate of the First District of Leyte and this is not
a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case
of doubt, we should lean towards a rule that will give life
to the people's political judgment.
A final point. The case at bench provides the Court with
the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous
common law precedents on the domicile of married
women and by redefining domicile in accord with our
own culture, law, and Constitution. To rule that a
married woman is eternally tethered to the domicile
dictated by her dead husband is to preserve the
anachronistic and anomalous balance of advantage of a
husband over his wife. We should not allow the dead to
govern the living even if the glories of yesteryears
seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married
women and we should not excavate what has been
entombed. More importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding
petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish,
however, to express a few comments on the issue of
petitioner's domicile.
Domicile has been defined as that place in which a
person's habitation is fixed, without any present
intention of removing therefrom, and that place is
properly the domicile of a person in which he has
voluntarily fixed his abode, or habitation, not for a mere
special or temporary purpose, but with a present
intention of making it his permanent home (28 C.J.S.
1). It denotes a fixed permanent residence to which
when absent for business, or pleasure, or for like
reasons one intends to return, and depends on facts
and circumstances, in the sense that they disclose
intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile
of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents,
or of the head of his family, or of the person on whom
he is legally dependent at the time of his birth. While the
domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. 5).
Domicile of choice, on the other hand, is the place
which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In
order to hold that a person has abandoned his domicile
and acquired a new one called domicile of choice, the
following requisites must concur, namely, (a) residence
or bodily presence in the new locality, (b) intention to
remain there or animus manendi, and (c) an intention to
abandon the old domicile or animus non
81 | P a g e
revertendi (Romualdez v. RTC, Br. 7, Tacloban City,
226 SCRA 408, 415). A third classification is domicile
by operation of law which attributes to a person a
domicile independent of his own intention or actual
residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or
the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of
residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199
SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections
misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed
to comply with the constitutionally mandated one-year
residence requirement. Apparently, public respondent
Commission deemed as conclusive petitioner's stay and
registration as voter in many places as conduct
disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several
decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of
origin is not sufficient to constitute abandonment or loss
of such residence (Faypon v. Quirino, 96 Phil. 294,
300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin
was supplanted by a new domicile due to her marriage,
a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she
makes an actual change thereof. I find this proposition
quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which
was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then
Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the
law is for the spouses to fully and effectively perform
their marital duties and obligations to one another.1 The
question of domicile, however, is not affected by the fact
that it was the legal or moral duty of the individual to
reside in a given place (28 C.J.S. 11). Thus, while the
wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's
termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite
absurd and unfair situation of having been freed from all
wifely obligations yet made to hold on to one which no
longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her
original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect.
It is for the private respondent to prove, not for
petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or
for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person
has abandoned or lost his residence of origin who must
show and prove preponderantly such abandonment or
loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16),
because the presumption is strongly in favor of an
original or former domicile, as against an acquired one
(28 C.J.S. 16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of
convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her
domicile of origin.
The records, on the contrary, clearly show that
petitioner has complied with the constitutional one-year
residence requirement. After her exile abroad, she
returned to the Philippines in 1991 to reside in Olot,
Tolosa, Leyte, but the Presidential Commission on
Good Government which sequestered her residential
house and other properties forbade her necessitating
her transient stay in various places in Manila (Affidavit
p.6, attached as Annex I of the Petition). In 1992, she
ran for the position of president writing in her certificate
of candidacy her residence as San Juan, Metro Manila.
After her loss therein, she went back to Tacloban City,
acquired her residence certificate2 and resided with her
brother in San Jose. She resided in San Jose, Tacloban
City until August of 1994 when she was allowed by the
PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p.
6).3 It was in the same month of August when she
applied for the cancellation of her previous registration
in San Juan, Metro Manila in order to register anew as
voter of Olot, Tolosa, Leyte, which she did on January
28, 1995. From this sequence of events, I find it quite
improper to use as the reckoning period of the one-year
residence requirement the date when she applied for
the cancellation of her previous registration in San
Juan, Metro Manila. The fact which private respondent
never bothered to disprove is that petitioner transferred
her residence after the 1992 presidential election from
San Juan, Metro Manila to San Jose, Tacloban City,
and resided therein until August of 1994. She later
transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It
appearing that both Tacloban City and Tolosa, Leyte
are within the First Congressional District of Leyte, it
indubitably stands that she had more than a year of
residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the
COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event
that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a
straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past,
but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its
Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on
April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995,
a day before the election; then because she persisted in
running, its decision on
May 11, 1995 or three days after the election, allowing
her proclamation in the event that the results of the
canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had
won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be
suspended.
Crucial to the resolution of the disqualification issue
presented by the case at bench is the interpretation to
be given to the one-year residency requirement
imposed by the Constitution on aspirants for a
Congressional seat.1
Bearing in mind that the term "resident" has been held
to be synonymous with "domicile" for election purposes,
it is important to determine whether petitioner's domicile
82 | P a g e
was in the First District of Leyte and if so, whether she
had resided there for at least a period of one year.
Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been
changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did,
his death certainly released her from the obligation to
live with him at the residence fixed by him during his
lifetime. What may confuse the layman at this point is
the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of
law," which subject we shall not belabor since it has
been amply discussed by the ponente and in the other
separate opinions.
In any case, what assumes relevance is the divergence
of legal opinion as to the effect of the husband's death
on the domicile of the widow. Some scholars opine that
the widow's domicile remains unchanged; that the
deceased husband's wishes perforce still bind the wife
he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.
It is bad enough to interpret the law as empowering the
husband unilaterally to fix the residence or domicile of
the family, as laid down in the Civil Code,2 but to
continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to
live together has ceased, is to close one's eyes to the
stark realities of the present.
At the other extreme is the position that the widow
automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow
with a domicile? To answer this question which is far
from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile.
Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject
to.
At this juncture, we are confronted with an unexplored
legal terrain in this jurisdiction, rendered more murky by
the conflicting opinions of foreign legal authorities. This
being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light
of truth, as dictated by experience and the necessity of
according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than
men.
Admittedly, the notion of placing women at par with
men, insofar as civil, political and social rights are
concerned, is a relatively recent phenomenon that took
seed only in the middle of this century. It is a historical
fact that for over three centuries, the Philippines had
been colonized by Spain, a conservative, Catholic
country which transplanted to our shores the Old World
cultures, mores and attitudes and values. Through the
imposition on our government of the Spanish Civil Code
in 1889, the people, both men and women, had no
choice but to accept such concepts as the husband's
being the head of the family and the wife's
subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many
instances come to mind, foremost being what is related
to the issue before us, namely, that "the husband shall
fix the residence of the family." 3 Because he is made
responsible for the support of the wife and the rest of
the family, 4 he is also empowered to be the
administrator of the conjugal property, with a few
exceptions 5 and may, therefore, dispose of the
conjugal partnership property for the purposes
specified under the law;6 whereas, as a general rule,
the wife cannot bind the conjugal partnership
without the husband's consent.7 As regards the
property pertaining to the children under parental
authority, the father is the legal administrator and
only in his absence may the mother assume his
powers.8 Demeaning to the wife's dignity are certain
strictures on her personal freedoms, practically
relegating her to the position of minors and
disabled persons. To illustrate a few: The wife
cannot, without the husband's consent, acquire any
gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives
within the fourth degree.9 With respect to her
employment, the husband wields a veto power in
the case the wife exercises her profession or
occupation or engages in business, provided his
income is sufficient for the family, according to its
social standing and his opposition is founded on
serious and valid grounds. 10 Most offensive, if not
repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after
three hundred days following the death of her
husband, unless in the meantime, she has given
birth to a child. 11 The mother who contracts a
subsequent marriage loses the parental authority
over her children, unless the deceased husband,
father of the latter, has expressly provided in his
will that his widow might marry again, and has
ordered that in such case she should keep and
exercise parental authority over their
children. 12 Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by
Filipino wives for hundreds of years evoked no
protest from them until the concept of human rights
and equality between and among nations and
individuals found hospitable lodgment in the United
Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the
American forces at the turn of the century. The
bedrock of the U.N. Charter was firmly anchored on
this credo: "to reaffirm faith in the fundamental
human rights, in the dignity and worth of the human
person, in the equal rights of men and women."
(Emphasis supplied)
It took over thirty years before these
egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement.
What may be regarded as the international
bill of rights for women was implanted in the
Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly
which entered into force as an international
treaty on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to
implement its liberating spirit and letter, for
its Constitution, no less, declared that "The
Philippines. . . adopts the generally accepted
principles of international law as part of the
law of the land and adheres to the policy of
peace, equality, justice, freedom,
cooperation, and amity with all
nations." 13 One such principle embodied in
the CEDAW is granting to men and women
"the same rights with regard to the law
relating to the movement of persons and
the freedom to choose their residence and
domicile." 14(Emphasis supplied).
83 | P a g e
CEDAW's pro-women orientation which was not lost
on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the
Family Code, 15 both of which were speedily
approved by the first lady President of the country,
Corazon C. Aquino. Notable for its emphasis on the
human rights of all individuals and its bias for
equality between the sexes are the following
provisions: "The State values the dignity of every
human person and guarantees full respect for
human rights"16 and "The State recognizes the role
of women in nation-building, and shall ensure the
fundamental equality before the law of women and
men."17
A major accomplishment of women in their quest for
equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their
husbands. Specifically, the husband and wife are now
given the right jointly to fix the family
domicile;18 concomitant to the spouses' being jointly
responsible for the support of the family is the right and
duty of both spouses to manage the household;19 the
administration and the enjoyment of the community
property shall belong to both spouses jointly;20 the father
and mother shall now jointly exercise legal guardianship
over the property of their unemancipated common
child21 and several others.
Aware of the hiatus and continuing gaps in the law,
insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in
Development and Nation Building Act"22 Among the
rights given to married women evidencing their capacity
to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain
loans and execute security and credit arrangements
under the same conditions as men;
(2) Women shall have equal access to all government
and private sector programs granting agricultural credit,
loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement
programs;
(3) Women shall have equal rights to act as
incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of
married men in applying for passports, secure visas and
other travel documents, without need to secure the
consent of their spouses.
As the world draws the curtain on the Fourth World
Conference of Women in Beijing, let this Court now be
the first to respond to its clarion call that "Women's
Rights are Human Rights" and that "All obstacles to
women's full participation in decision-making at all
levels, including the family" should be removed. Having
been herself a Member of the Philippine Delegation to
the International Women's Year Conference in Mexico
in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of
discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and
global, legislative, executive and judicial, according
more rights to women hitherto denied them and
eliminating whatever pockets of discrimination still exist
in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their
domicile upon the death of their husbands but must
retain the same, regardless?
I submit that a widow, like the petitioner and others
similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt
to reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa,
both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her
election of a domicile of choice, in this case, a reversion
to her domicile of origin. Added together, the time when
she set up her domicile in the two places sufficed to
meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT
the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional
mandates.
The Constitution is not a pliable instrument. It is a
bedrock in our legal system that sets up ideals and
directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are
not repeated. A compliant transience of a constitution
belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities
of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal
attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be
mandatory in character unless, either by express
statement or by necessary implication, a different
intention is manifest (see Marcelino vs. Cruz, 121
SCRA 51).
The two provisions initially brought to focus are Section
6 and Section 17 of Article VI of the fundamental law.
These provisions read:
Sec. 6. No person shall be a Member of
the House of Representatives unless he
is a natural-born citizen of the
Philippines and, on the day of the
election, is at least twenty-five years of
age, able to read and write, and, except
the party-list representatives, a
registered voter in the district in which
he shall be elected, and a resident
thereof for a period of not less than one
year immediately preceding the day of
the election.
Sec. 17. The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the
sole judge of all contests relating to the
election, returns, and qualifications of
their respective Members. Each
Electoral Tribunal shall be composed of
nine Members, three of whom shall be
Justices of the Supreme Court to be
designated by the Chief Justice, and the
remaining six shall be Members of the
Senate or the House of
84 | P a g e
Representatives, as the case may be,
who shall be chosen on the basis of
proportional representation from the
political parties and the parties or
organizations registered under the
party-list system represented therein.
The senior Justice in the Electoral
Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is
constitutionally bound to enforce and administer "all
laws and regulations relative to the conduct of election .
. ." (Art. IX, C, Sec. 2, Constitution) that, there being
nothing said to the contrary, should include its authority
to pass upon the qualification and disqualification
prescribed by law of candidates to an elective office.
Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the
observance of the constitutional one-year residency
requirement. The issue (whether or not there is here
such compliance), to my mind, is basically a question of
fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in
accordance with the long established rule and subject
only to a number of exceptions under the basic heading
of "grave abuse of discretion," are not reviewable by
this Court.
I do not find much need to do a complex exercise on
what seems to me to be a plain matter. Generally, the
term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's
official duties may require him to stay) or temporary (the
place where he sojourns during a considerable length of
time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of a natural person is the place
of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408,
409); thus:
In election cases, the Court treats
domicile and residence as synonymous
terms, thus: "(t)he term "residence" as
used in the election law is synonymous
with "domicile," which imports not only
an intention to reside in a fixed place but
also personal presence in that place,
coupled with conduct indicative of such
intention." "Domicile" denotes a fixed
permanent residence to which when
absent for business or pleasure, or for
like reasons, one intends to return. . . . .
Residence thus acquired, however, may
be lost by adopting another choice of
domicile. In order, in turn, to acquire a
new domicile by choice, there must
concur (1) residence or bodily presence
in the new locality, (2) an intention to
remain there, and (3) an intention to
abandon the old domicile. In other
words, there must basically be animus
manendi coupled with animus non
revertendi. The purpose to remain in or
at the domicile of choice must be for an
indefinite period of time; the change of
residence must be voluntary; and the
residence at the place chosen for the
new domicile must be actual.
 Using the above tests, I am not convinced that
we can charge the COMELEC with having
committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of
congressional elections, ends when the jurisdiction of
the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly
proclaimed and has since become a "member" of the
Senate or the House of Representatives. The question
can be asked on whether or not the proclamation of a
candidate is just a ministerial function of the
Commission on Elections dictated solely on the number
of votes cast in an election exercise. I believe, it is not.
A ministerial duty is an obligation the performance of
which, being adequately defined, does not allow the use
of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of
ascertaining all the facts and conditions such as may be
required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least,
refrain from any undue encroachment on the ultimate
exercise of authority by the Electoral Tribunals on
matters which, by no less than a constitutional fiat, are
explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the
Court's peremptory pronouncement on the ability of the
Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns
and qualification" of its members.
Prescinding from all the foregoing, I should like to next
touch base on the applicability to this case of Section 6
of Republic Act No. 6646, in relation to Section 72
of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases
and priority. The Commission and the
courts shall give priority to cases of
disqualification by reason of violation of
this Act to the end that a final decision
shall be rendered not later than seven
days before the election in which the
disqualification is sought.
85 | P a g e
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. Nevertheless,
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, his
violation of the provisions of the
preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it
may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle
they clearly convey. Thus, I will not scoff at the
argument that it should be sound to say that votes cast
in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in
his or her favor and must accordingly be considered to
be stray votes. The argument, nevertheless, is far
outweighed by the rationale of the now prevailing
doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687
[1981]), and Santos vs. COMELEC (137 SCRA 740
[1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253
[1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs. Comelec was a unanimous decision penned by
Justice Kapunan and concurred in by Chief Justice
Narvasa, Justices Feliciano, Padilla, Bidin, Regalado,
Davide, Romero, Melo, Quiason, Puno, Vitug and
Mendoza (Justices Cruz and Bellosillo were on official
leave). For easy reference, let me quote from the
first Labo decision:
Finally, there is the question of whether
or not the private respondent, who filed
the quo warrantopetition, can replace
the petitioner as mayor. He cannot. The
simple reason is that as he obtained
only the second highest number of votes
in the election, he was obviously not the
choice of the people of Baguio City.
The latest ruling of the Court on this
issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in
1985. In that case, the candidate who
placed second was proclaimed elected
after the votes for his winning rival, who
was disqualified as a turncoat and
considered a non-candidate, were all
disregard as stray. In effect, the second
placer won by default. That decision
was supported by eight members of the
Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three
dissenting (Teehankee, Acting C.J.,
Abad Santos and Melencio-Herrera, JJ.)
and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court
finds, and so holds, that it should be
reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435)
which represents the more logical and
democratic rule. That case, which
 reiterated the doctrine first announced in
1912 in Topacio v. Paredes, (23 Phil.
238) was supported by ten members of
the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent,
although one reserved his vote,
(Makasiar, J.) another took no part,
(Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:
. . . it would be extremely
repugnant to the basic
concept of the
constitutionally
guaranteed right to
suffrage if a candidate
who has not acquired
the majority or plurality
of votes is proclaimed a
winner and imposed as
the representative of a
constituency, the
majority of which have
positively declared
through their ballots that
they do not choose him.
Sound policy dictates
that public elective
offices are filled by those
who have received the
highest number of votes
cast in the election for
that office, and it is a
fundamental idea in all
republican forms of
government that no one
can be declared elected
and no measure can be
declared carried unless
he or it receives a
majority or plurality of
the legal votes cast in
the election. (20 Corpus
Juris 2nd, S 243, p.
676.)
The fact that the candidate who
obtained the highest number of votes is
later declared to be disqualified or not
eligible for the office to which he was
elected does not necessarily entitle the
candidate who obtained the second
highest number of votes to be declared
the winner of the elective office. The
votes cast for a dead, disqualified, or
non-eligible person may not be valid to
vote the winner into office or maintain
him there. However, in the absence of a
statute which clearly asserts a contrary
political and legislative policy on the
matter, if the votes were cast in the
sincere belief that the candidate was
alive, qualified, or eligible, they should
not be treated as stray, void or
meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote
for the dismissal of the petition.
MENDOZA, J., separate opinion:
86 | P a g e
In my view the issue in this case is whether the
Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the
office to which they seek to be elected. I think that it has
none and that the qualifications of candidates may be
questioned only in the event they are elected, by filing a
petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC
but, as in this case, in the House of Representatives
Electoral Tribunal. That the parties in this case took part
in the proceedings in the COMELEC is of no moment.
Such proceedings were unauthorized and were not
rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for
authorized proceedings for determining a candidate's
qualifications for an office before his election. There are
none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or
in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-
proclamation contests but only election protests or quo
warrantoproceedings against winning candidates.
To be sure, there are provisions denominated for
"disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a
person either to be a candidate or to continue as a
candidate for public office. There is also a provision for
the denial or cancellation of certificates of candidacy,
but it applies only to cases involving false
representations as to certain matters required by law to
be stated in the certificates.
These provisions are found in the following parts of the
Omnibus Election Code:
12. Disqualifications. Any person
who has been declared by competent
authority insane or incompetent, or has
been sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been
sentenced to a penalty of more than
eighteen months or for a crime involving
moral turpitude, shall be disqualified to
be a candidate and to hold any office,
unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate
herein provided shall be deemed
removed upon the declaration by
competent authority that said insanity or
incompetence had been removed or
after the expiration of a period of five
years from his service of sentence,
unless within the same period he again
becomes disqualified. (Emphasis
added)
68. Disqualifications. Any candidate
who, in an action or protest in which he
is a party is declared by final decision of
a competent court guilty of, or found by
the Commission of having (a) given
money or other material consideration to
influence, induce or corrupt the voters or
public officials performing electoral
functions; (b) committed acts of
terrorism to enhance his candidacy; (c)
spent in his election campaign an
amount in excess of that allowed by this
 Code; (d) solicited, received or made
any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be
disqualified from continuing as a
candidate, or if he has been elected,
from holding the office. Any person who
is a permanent resident of or an
immigrant to a foreign country shall not
be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident
or immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws. (Emphasis added)
78. Petition to deny due course to or
cancel a certificate of
candidacy. A verified petition seeking
to deny due course or to cancel a
certificate of candidacy may be filed by
any person exclusively on the ground
that any material representation
contained therein as required under
Section 74 hereof is false. The petition
may be filed at any time not later than
twenty-five days from the time of the
filing of the certificate of candidacy and
shall be decided, after due notice and
hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No.
6646):
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 for 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. (Emphasis added).
7. Petition to Deny Due Course to or
Cancel a Certificate of Candidacy.
The procedure hereinabove provided
shall apply to petitions to deny due
course to or cancel a certificate of
candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A.
No. 7160):
40. Disqualifications. The following
persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment
for an offense involving moral turpitude
or for an offense punishable by one (1)
87 | P a g e
year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a
result of on administrative case;
(c) Those convicted by final judgment
for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy
Montejo in the COMELEC, while entitled "For
Cancellation and Disqualification," contained no
allegation that private respondent Imelda Romualdez-
Marcos made material representations in her certificate
of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her
Voter Registration Record and Certificate of Candidacy,
[she] is disqualified from running for the position of
Representative, considering that on election day, May
8, 1995, [she] would have resided less than ten (10)
months in the district where she is seeking to be
elected." For its part, the COMELEC's Second Division,
in its resolution of April 24, 1995, cancelled her
certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the
House of Representatives for the First Legislative
District of Leyte" and not because of any finding that
she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore
not a petition for cancellation of certificate of candidacy
under 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent
ineligible. It is important to note this, because, as will
presently be explained, proceedings under 78 have
for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have
for their purpose to disqualify a person from
holding public office. Jurisdiction over quo
warranto proceedings involving members of the House
of Representatives is vested in the Electoral Tribunal of
that body.
Indeed, in the only cases in which this Court dealt with
petitions for the cancellation of certificates of candidacy,
the allegations were that the respondent candidates had
made false representations in their certificates of
candidacy with regard to
their citizenship,1 age,2 or residence.3 But in the
generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so
in the context of election protests4 or quo
warrantoproceedings5 filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of
an authorized proceeding for determining before
election the qualifications of a candidate.
First is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g.,
vote buying, over spending, commission of prohibited
acts) is a prejudicial question which should be
determined lest he wins because of the very acts for
which his disqualification is being sought. That is why it
is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for
and he has won, either he will not be proclaimed or his
proclamation will be set aside.6
Second is the fact that the determination of a
candidate's eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion
case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after
the elections of May 8, 1995. This is contrary to the
summary character of proceedings relating to
certificates of candidacy. That is why the law makes the
receipt of certificates of candidacy a ministerial duty of
the COMELEC and its officers.7 The law is satisfied if
candidates state in their certificates of candidacy that
they are eligible for the position which they seek to fill,
leaving the determination of their qualifications to be
made after the election and only in the event they are
elected. Only in cases involving charges of false
representations made in certificates of candidacy is the
COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-
proclamation cases in elections for President, Vice
President, Senators and members of the House of
Representatives. (R.A. No. 7166, 15) The purpose is
to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of
Congress or of the President and Vice President, as the
case may be.
By providing in 253 for the remedy of quo warranto for
determining an elected official's qualifications after the
results of elections are proclaimed, while being
conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election
Code, or OEC, by its silence underscores the policy of
not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized
proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993
so as to provide in Rule 25, 1 the following:
Grounds for disqualification. Any
candidate who does not possess all the
qualifications of a candidate as provided
for by the Constitution or by existing law
or who commits any act declared by law
to be grounds for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause
of action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power
88 | P a g e
under Art. IX, A, 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving
the right to vote, which essentially involves an inquiry
into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of
grounds for ineligibility into grounds for disqualification
is contrary to the evident intention of the law. For not
only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for
a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code
and in 40 of the Local Government Code and are for
the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during
its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice
versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the law does not imply
that he does not suffer from any of disqualifications
provided in 4.
Indeed, provisions for disqualifications on the ground
that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of
"grabbing the proclamation and prolonging the election
protest,"8 through the use of "manufactured" election
returns or resort to other trickery for the purpose of
altering the results of the election. This rationale does
not apply to cases for determining a candidate's
qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding
for disqualification is brought who could be prejudiced
because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a
candidate may only be sought in an election protest or
action for quo warranto filed pursuant to 253 of the
Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials
(e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be
filed either with the COMELEC, the Regional Trial
Courts, or Municipal Trial Courts, as provided in Art. IX,
C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed
with the Presidential Electoral Tribunal (Art. VII, 4, last
paragraph), and in the case of the Senators, with the
Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater
reason for not allowing before the election the filing of
disqualification proceedings based on alleged
ineligibility in the case of candidates for President, Vice
President, Senators and members of the House of
Representatives, because of the same policy prohibiting
the filing of pre-proclamation cases against such
candidates.
For these reasons, I am of the opinion that the
COMELEC had no jurisdiction over SPA No. 95-009;
that its proceedings in that case, including its
questioned orders, are void; and that the eligibility of
petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA
No. 95-009, including its questioned orders doted April
24, 1995, May 7, 1995, May 11, 1995 and May 25,
1995, declaring petitioner Imelda Romualdez-Marcos
ineligible and ordering her proclamation as
Representative of the First District of Leyte suspended.
To the extent that Rule 25 of the COMELEC Rules of
Procedure authorizes proceedings for the
disqualification of candidates on the ground of
ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed
with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as
expressed in the well-written ponencia of Mr. Justice
Kapunan.
As in any controversy arising out of a Constitutional
provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred
by what, to me, are academic disquisitions. In this
particular controversy, the Constitutional provision on
point states that "no person shall be a member of the
House of Representatives unless he is a natural-born
citizen of the Philippines, and on the day of the election,
is at least twenty-five (25) years of age, able to read
and write, and except the party list representatives, a
registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the
election." (Article VI, section 6)
It has been argued that for purposes of our election
laws, the term residence has been understood as
synonymous with domicile. This argument has been
validated by no less than the Court in numerous
cases1 where significantly the factual
circumstances clearly and convincingly proved that a
person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with
his personal presence in the place, coupled with
conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to
conceive of different modalities within which the phrase
"a resident thereof (meaning, the legislative district) for
a period of not less than one year" would fit.
The first instance is where a person's residence and
domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a
residence apart from his domicile in which case he
would have the luxury of district shopping, provided of
course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the
position of congressional representative for the district.
89 | P a g e
In either case, one would not be constitutionally
disqualified for abandoning his residence in order to
return to his domicile of origin, or better still, domicile of
choice; neither would one be disqualified for
abandoning altogether his domicile in favor of his
residence in the district where he desires to be a
candidate.
The most extreme circumstance would be a situation
wherein a person maintains several residences in
different districts. Since his domicile of origin continues
as an option as long as there is no effective
abandonment (animus non revertendi), he can
practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered
by the unambiguous limitation that "for a period of not
less than one year immediately preceding the day of the
election", he must be a resident in the district where he
desires to be elected.
To my mind, the one year residence period is crucial
regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the
candidate's intent and actual presence in one district
must in allsituations satisfy the length of time prescribed
by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to
represent in Congress and the one-year residence in
said district would be the minimum period to acquire
such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative
facts are distinctly set out in the now assailed decision
of the Comelec 2nd Division dated 24 April 1995 (as
affirmed by the Comelec en banc)
In or about 1938 when respondent was
a little over 8 years old, she established
her domicile in Tacloban, Leyte
(Tacloban City). She studied in the Holy
Infant Academy in Tacloban from 1938
to 1948 when she graduated from high
school. She pursued her college studies
in St. Paul's College, now Divine Word
University of Tacloban, where she
earned her degree in Education.
Thereafter, she taught in the Leyte
Chinese High School, still in Tacloban
City. In 1952 she went to Manila to work
with her cousin, the late Speaker Daniel
Z. Romualdez in his office in the House
of Representatives. In 1954, she
married ex-president Ferdinand Marcos
when he was still a congressman of
Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there
as a voter. When her husband was
elected Senator of the Republic in 1959,
she and her husband lived together in
San Juan, Rizal where she registered as
a voter. In 1965 when her husband was
elected President of the Republic of the
Philippines, she lived with him in
Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency,
respondent served as a Member of the
Batasang Pambansa, Minister of Human
Settlements and Governor of Metro
Manila. She claimed that in February
1986, she and her family were abducted
and kidnapped to Honolulu, Hawaii. In
 November 1991, she came home to Tolosa,
Manila. In 1992 respondent ran for Leyte
election as President of the Philippines
and filed her Certificate of Candidacy 9.
wherein she indicated that she is a RESIDE
resident and registered voter of San NCE IN
Juan, Metro Manila. On August 24, THE
1994, respondent filed a letter with the CONSTI
election officer of San Juan, Metro TUENCY
Manila, requesting for cancellation of WHEREI
her registration in the Permanent List of N I SEEK
Voters in Precinct No. 157 of San Juan, TO BE
Metro Manila, in order that she may be ELECTE
re-registered or transferred to Brgy. D
Olot, Tolosa, Leyte. (Annex 2-B, IMMEDIA
Answer). On August 31, 1994, TELY
respondent filed her Sworn Application PRECED
for Cancellation of Voter's Previous ING
Registration (Annex 2-C, Answer) ELECTIO
stating that she is a duly registered voter N:
in 157-A, Brgy. Maytunas, San Juan, _______
Metro that she intends to register at _
Brgy. Olot, Tolosa, Leyte. Years Se
venMont
On January 28, 1995 respondent hs
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with 10. I AM
the Board of Election Inspectors CE NOT A
Form No. 1, Voter Registration Record PERMAN
No. 94-3349772, wherein she alleged ENT
that she has resided in the municipality RESIDE
of Tolosa for a period of 6 months NT OF,
(Annex A, Petition). OR
IMMIGR
On March 8, 1995, respondent filed with ANT TO,
the Office of the Provincial Election A
Supervisor, Leyte, a Certificate of FOREIG
Candidacy for the position of N
Representative of the First District of COUNTR
Leyte wherein she also alleged that she Y.
has been a resident in the constituency
where she seeks to be elected for a THAT I AM ELIGIBLE for said office;
period of 7 months. The pertinent That I will support and defend the
entries therein are as follows: Constitution of the Republic of the
Philippines and will maintain true faith
7. and allegiance thereto; That I will obey
PROFES the laws, legal orders and decrees
SION OR promulgated by the duly-constituted
OCCUPA authorities; That the obligation imposed
TION: by my oath is assumed voluntarily,
House- without mental reservation or purpose of
wife/ evasion; and That the facts stated
Teacher/ herein are true to the best of my
Social knowledge.
Worker

8.
RESIDE
NCE
(complet
e
address):
Brgy.
Olot,
Tolosa,
Leyte

Post
Office
Address
for
election
purposes
: Brgy.
Olot,

90 | P a g e

Petitioner's aforestated certificate of candidacy filed on
8 March 1995 contains the decisive component or seed
of her disqualification. It is contained in her answer
under oath of "seven months" to the query of "residence
in the constituency wherein I seek to be elected
immediately preceding the election."
It follows from all the above that the Comelec committed
no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the
1st congressional district of Leyte in the elections of 8
May 1995, for failure to meet the "not less than one-
year residence in the constituency (1st district, Leyte)
immediately preceding the day of election (8 May
1995)."
Having arrived at petitioner's disqualification to be a
representative of the first district of Leyte, the next
important issue to resolve is whether or not the
Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this
Court in the case of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale
as laid down in the early 1912 case of Topacio
vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public
elective offices are filled by those who
have received the highest number of
votes cast in the election for that office,
and it is a fundamental idea in all
republican forms of government that no
one can be declared elected and no
measure can be declared carried unless
he or it receives a majority or plurality of
the legal votes cast in the election. (20
Corpus Juris 2nd, S 243, p. 676)
91 | P a g e
Thee fact that the candidate who
obtained
z the highest number of votes is
later
- declared to be disqualified or not
eligible
M for the office to which he was
elected
a does not necessarily entitle the
candidate
r who obtained the second
highest
c number of votes to be declared
theo winner of the elective office. The
votes
s cast for a dead, disqualified, or
non-eligible person may not be valid to
vote
( the winner into office or maintain
himS there. However, in the absence of a
statute
i which clearly asserts a contrary
political
g and legislative policy on the
matter,
n if the votes were cast in the
sincere
a belief that the candidate was
alive,
t qualified, or eligible, they should
notu be treated as stray, void or
meaningless.
r
e
Under Sec. 6 RA 6646, (An Act Introducing Additional
o
Reforms in the Electoral System and for other
purposes) (84 O.G.f 905, 22 February 1988) it is
provided that:
C
. .a. Any candidate who has been
n
declared by final judgment to be
d
disqualified shall not be voted for, and
thei votes cast for him shall not be
d
counted. If for any reason a candidate is
nota declared by final judgment before an
t
election to be disqualified and he is
e for and receives the winning
voted
)
number of votes in such election, the
2
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 is no need to indulge in legal hermeneutics to
sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the
legislative policy does not limit its concern with the
effect of a final judgement of disqualification
only before the election, but even during or after the
election. The law is clear that in all situations, the votes
cast for a disqualified candidate SHALL NOT BE
COUNTED. The law has also validated the jurisdiction
of the Court or Commission on Election to continue
hearing the petition for disqualification in case a
candidate is voted for and receives the highest number
of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the
power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. What
happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall
not be counted" and in legal contemplation, he no
longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not
make the second placer the winner simply because a
"winning candidate is disqualified," but that the law
considers him as the candidate who had obtained the
highest number of votes as a result of the votes cast for
the disqualified candidate not being counted or
considered.
As this law clearly reflects the legislative policy on the
matter, then there is no reason why this Court should
not re-examine and consequently abandon the doctrine
in the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no
less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to
order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of
votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the
majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which
assuredly is not formulated "on the basis of the
personality of a petitioner in a case."
I go along with the majority in their narration of
antecedent facts, insofar as the same are pertinent to
this case, and which I have simplified as follows:
1. Petitioner, although born in Manila,
resided during her childhood in the
present Tacloban City, she being a
legitimate daughter of parents who
appear to have taken up permanent
residence therein. She also went to
school there and, for a time, taught in
one of the schools in that city.
2. When she married then Rep.
Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during
the events that happened thereafter, her
husband having been elected as a
Senator and then as President, she
lived with him and their family in San
Juan, Rizal and then in Malacanang
Palace in San Miguel, Manila.
4. Over those years, she registered as a
voter and actually voted in Batac, Ilocos
Norte, then in San Juan, Rizal, and also
in San Miguel, Manila, all these merely
in the exercise of the right of suffrage.
5. It does not appear that her husband,
even after he had assumed those lofty
positions successively, ever abandoned
his domicile of origin in Batac, Ilocos
Norte where he maintained his
residence and invariably voted in all
elections.
6. After the ouster of her husband from
the presidency in 1986 and the sojourn
of the Marcos family in Honolulu,
Hawaii, U.S.A., she eventually returned
to the Philippines in 1991 and resided in
different places which she claimed to
have been merely temporary
residences.
92 | P a g e
7. In 1992, petitioner ran for election as
President of the Philippines and in her
certificate of candidacy she indicated
that she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter
for the cancellation of her registration in
the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in
order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte."
On August 31, 1994, she followed this
up with her Sworn Application for
Cancellation of Voter's Previous
Registration wherein she stated that she
was a registered voter in Precinct No.
157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to
register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner
registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte, for which
purpose she filed with the therein Board
of Election Inspectors a voter's
registration record form alleging that she
had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed
her certificate of candidacy for the
position of Representative of the First
District of Leyte wherein she alleged
that she had been a resident for
"Seven Months" of the constituency
where she sought to be elected.
11. On March 29, 1995, she filed an
"Amended/Corrected Certificate of
Candidacy" wherein her answer in the
original certificate of candidacy to item
"8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO
BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was
changed or replaced with a new entry
reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of
her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no
less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my
colleagues with a dissertation on the difference between
residence and domicile. We have had enough of that
and I understand that for purposes of political law and,
for that matter of international law, residence is
understood to be synonymous with domicile. That is so
understood in our jurisprudence and in American Law,
in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws
whenever an issue thereon is relevant or controlling.
Consequently, since in the present case the question of
petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of
choice and domicile by operation of law, as understood
in American law from which for this case we have taken
our jurisprudential bearings.
My readings inform me that the domicile of the parents
at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until
abandoned, or until the acquisition of a new domicile in
a different place.1 In the instant case, we may grant that
petitioner's domicile of origin, 2 at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be
of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the
common case of the place of birth or domicilium
originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is
consequential, as that of a wife arising from
marriage,3 is sometimes called domicilium necesarium.
There is no debate that the domicile of origin can be lost
or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then
Rep. Marcos, by operation of law, not only international
or American but of our own enactment, 4 she acquired
her husband's domicile of origin in Batac, Ilocos Norte
and correspondingly lost her own domicile of origin in
Tacloban City.
Her subsequent changes of residence to San Juan,
Rizal, then to San Miguel, Manila, thereafter to
Honolulu, Hawaii, and back to now San Juan, Metro
Manila do not appear to have resulted in her thereby
acquiring new domiciles of choice. In fact, it appears
that her having resided in those places was by reason
of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu
and, of course, those after her return to the Philippines
were, as she claimed, against her will or only for
transient purposes which could not have invested them
with the status of domiciles of choice.5
After petitioner's return to the Philippines in 1991 and
up to the present imbroglio over her requisite residency
in Tacloban City or Olot, Tolosa, Leyte, there is no
showing that she ever attempted to acquire any other
domicile of choice which could have resulted in the
abandonment of her legal domicile in Batac, Ilocos
Norte. On that score, we note the majority's own
submission 6 that, to successfully effect a change of
domicile, one must demonstrate (a) an actual removal
or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of
residence and establishing a new one, and (c) acts
which correspond with the purpose.
We consequently have to also note that these
requirements for the acquisition of a domicile of choice
apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or
a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which
had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte
which, if at all, can be the object of legal change under
the contingencies of the case at bar.
To get out of this quandary, the majority decision
echoes the dissenting opinion of Commissioner
Regalado E. Maambong in SPA 95-009 of the
Commission on Elections,7 and advances this novel
proposition.
It may be said that petitioner lost her
domicile of origin by operation of law as
a result of her marriage to the late
President Ferdinand E. Marcos in 1952
(sic, 1954). By operation of law
(domicilium necesarium), her legal
93 | P a g e
domicile at the time of her marriage
became Batac, Ilocos Norte although
there were no indications of an intention
on her part to abandon her domicile of
origin. Because of her husband's
subsequent death and through the
operation of the provisions of the New
Family Code already in force at the time,
however, her legal domicile
automatically reverted to her domicile of
origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that
petitioner had acquired a domicilium necesarium in
Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her
domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's
domicile is at any given time, and not her self-serving or
putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one
cannot have more than one domicile at a time,8 the
majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does
not exist therein) the equivalent of what is fancied as a
reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can
only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility
of an automatic reversion to or reacquisition of a
domicile of origin after the termination of the cause for
its loss by operation of law. The majority agrees that
since petitioner lost her domicile of origin by her
marriage, the termination of the marriage also
terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find
some difficulty in accepting either the logic or the
validity of this argument.
If a party loses his domicile of origin by obtaining a new
domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his
original domicile unless, by subsequent acts legally
indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of
choice cannot automatically restore his domicile of
origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its
logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very
well have obtained another domicile, either of choice or
by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly
does not regulate this contingency since it would
impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume
that she entered into the marital state against her will)
but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of
origin. With much more reason, therefore, should we
reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per
se and ipso facto reacquired her domicile of origin
which she lost in 1954. Otherwise, this would be
tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and
enjoyment of a domicile of origin which was only in a
state of suspended animation.
Thus, the American rule is likewise to the effect that
while after the husband's death the wife has the right to
elect her own domicile,9 she nevertheless retains the
last domicile of her deceased husband until she makes
an actual change. 10 In the absence of affirmative
evidence, to the contrary, the presumption is that a
wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support
of the majority's theory based on Articles 68 and 69 of
the Family Code. All that is of any relevance therein is
that under this new code, the right and power to fix the
family domicile is now shared by the spouses. I cannot
perceive how that joint right, which in the first place was
never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for
her husband, long prior thereto. It is true that a wife now
has the coordinate power to determine
the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each
of her children having gotten married and established
their own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the
present factual setting of this controversy. Instead, what
is of concern in petitioner's case was the matter of her
having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of
the growing and expanded participation of women in the
affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial
pronouncement which either expressly or by necessary
implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium
originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern
this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned
phrase.
In sum, petitioner having lost Tacloban City as her
domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she
cannot legally claim that her residency in the political
constituency of which it is a part continued since her
birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that
effect in her amended/corrected certificate of candidacy,
and in holding her to her admission in the original
certificate that she had actually resided in that
constituency for only seven months prior to the election.
These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS
the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority
written by Mr. Justice Santiago M. Kapunan, more
particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the
Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the
94 | P a g e
Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if
the COMELEC has acted without or in excess of
jurisdiction or with grave abuse of discretion (Section 1,
Rule 65, Rules of Court). Since the COMELEC has,
undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave
abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged
resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much
less grave abuse thereof. The resolution of the Second
Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil
that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the
COMELEC's findings of fact for lack of proof that the
petitioner has abandoned Tolosa as her domicile of
origin, which is allegedly within the First Congressional
District of Leyte.
I respectfully submit that the petitioner herself has
provided the COMELEC, either by admission or by
documentary evidence, overwhelming proof of the loss
or abandonment of her domicile of origin, which is
Tacloban City and not Tolosa, Leyte. Assuming that she
decided to live again in her domicile of origin, that
became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day
of the election. She was then disqualified to be a
candidate for the position of Representative of the First
Congressional District of Leyte. A holding to the
contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile
of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime
in May 1954 upon her marriage to the then
Congressman (later, President) Ferdinand E. Marcos. A
domicile by operation of law is that domicile which the
law attributes to a person, independently of his own
intention or actual residence, as results from legal
domestic relations as that of the wife arising from
marriage (28 C.J.S. Domicile 7, 11). Under the
governing law then, Article 110 of the Civil Code, her
new domicile or her domicile of choice was the domicile
of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the
residence of the family. But the court
may exempt the wife from living with the
husband if he should live abroad unless
in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino
states:
Although the duty of the spouses to live
together is mutual, the husband has a
predominant right because he is
empowered by law to fix the family
residence. This right even predominates
over some rights recognized by law in
the wife. For instance, under article 117
the wife may engage in business or
 practice a profession or occupation. But
because of the power of the husband to
fix the family domicilehe may fix it at
such a place as would make it
impossible for the wife to continue in
business or in her profession. For
justifiable reasons, however, the wife
may be exempted from living in the
residence chosen by the husband. The
husband cannot validly allege desertion
by the wife who refuses to follow him to
a new place of residence, when it
appears that they have lived for years in
a suitable home belonging to the wife,
and that his choice of a different home is
not made in good faith. (Commentaries
and Jurisprudence on the Civil Code of
the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses
her own domicile and, by operation of law, acquires that
of her husband, no matter where the wife actually lives
or what she believes or intends. Her domicile is fixed in
the sense that it is declared to be the same as his, and
subject to certain limitations, he can change her
domicile by changing his own (25 Am Jur 2d Domicile
48, 37).
It must, however, be pointed out that under Article 69 of
the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a
joint decision of the spouses, and in case of
disagreement the court shall decide. The said article
uses the term "family domicile," and not family
residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of
such residences, which may destroy the duty of the
spouses to live together and its corresponding benefits"
(ALICIA V. SEMPIO-DIY, Handbook on the Family
Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's
domicile of origin upon the death of her husband, which
the majority opinion adopts to overcome the legal effect
of the petitioner's marriage on her domicile, is
unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a
right to elect her own domicile, but she retains the last
domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death
of the husband, the power of the wife to acquire her
own domicile is revived, but until she exercises the
power her domicile remains that of the husband at the
time of his death (25 Am Jur 2d Domicile 62, 45).
Note that what is revived is not her domicile of origin
but her power to acquire her own domicile.
Clearly, even after the death of her husband, the
petitioner's domicile was that of her husband at the time
of his death which was Batac, Ilocos Norte, since
their residences in San Juan, Metro Manila, and San
Miguel, Manila, were their residences for convenience
to enable her husband to effectively perform his official
duties. Their residence in San Juan was a conjugal
home, and it was there to which she returned in 1991
when she was already a widow. In her sworn certificate
of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated
therein that she was a resident of San Juan, Metro
Manila. She also voted in the said elections in that
place.
On the basis of her evidence, it was only on 24 August
1994 when she exercised her right as a widow to
acquire her own domicile in Tolosa, Leyte, through her
sworn statement requesting the Election Officer of San
95 | P a g e
Juan, Metro Manila, to cancel her registration in the
permanent list of voters in Precinct 157 thereat and
praying that she be "re-registered or transferred to Brgy.
Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B,"
attached as Annex "2" of private respondent Montejo's
Comment). Notably, she contradicted this sworn
statement regarding her place of birth when, in her
Voter's Affidavit sworn to on 15 March 1992 (photocopy
of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995
(photocopy of Exhibit "E," attached as Annex "5," Id.),
and her Certificate of Candidacy sworn to on 8 March
1995 (photocopy of Exhibit "A," attached as Annex
"1," Id.), she solemnly declared that she was born in
Manila.
The petitioner is even uncertain as to her domicile of
origin. Is it Tacloban City or Tolosa, Leyte? In the
affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared
under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or
residence of origin why did she inform the Election
Officer of San Juan that she would transfer to Olot,
Tolosa, Leyte, and indicate in her Voter's Registration
Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty
is not important insofar as residence in the
congressional district is concerned, it nevertheless
proves that forty-one years had already lapsed since
she had lost or abandoned her domicile of origin by
virtue of marriage and that such length of time
diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority
opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and
the subsequent cases which established the principle
that absence from original residence or domicile of
origin to pursue studies, practice one's profession, or
engage in business in other states does not constitute
loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in
private and public service; educational activities; work in
military or naval reservations; service in the army, navy
or air force, the constabulary or national police force; or
confinement or detention in government institutions in
accordance with law" is not deemed as loss of original
residence. Those cases and legal provision do not
include marriage of a woman. The reason for the
exclusion is, of course, Article 110 of the Civil Code. If it
were the intention of this Court or of the legislature to
consider the marriage of a woman as a circumstance
which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the
same.
This Court should not accept as gospel truth the self-
serving claim of the petitioner in her affidavit (Annex "A"
of her Answer in COMELEC SPA No. 95-009; Annex "I"
of Petition) that her "domicile or residence of origin is
Tacloban City," and that she "never intended to
abandon this domicile or residence of origin to which
[she] always intended to return whenever absent." Such
a claim of intention cannot prevail over the effect of
Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life
after her marriage in 1954 conclusively establish that
she had indeed abandoned her domicile of origin and
had acquired a new one animo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and
Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space
provided for the residency qualification requirement in
the certificate of candidacy. Such a claim is self-serving
and, in the light of the foregoing disquisitions, would be
all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she
stated was the truth.
The majority opinion also disregards a basic rule in
evidence that he who asserts a fact or the affirmative of
an issue has the burden of proving it (Imperial Victory
Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19
[1993]). Having admitted marriage to the then
Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her
domicile to that of her husband. The majority opinion
rules or at least concludes that "[b]y operation of law
(domicilium necesarium), her legal domicile at the time
of her marriage automatically became Batac, Ilocos
Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her
deceased husband's domicile until she exercises her
revived power to acquire her own domicile, the burden
is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to
discharge that burden.
I vote to deny the petition.
G.R. No. 118978 May 23, 1997
PHILIPPINE TELEGRAPH AND TELEPHONE
COMPANY, * petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and
GRACE DE GUZMAN, respondents.
REGALADO, J.:
Seeking relief through the extraordinary writ
of certiorari, petitioner Philippine Telegraph and
Telephone Company (hereafter, PT & T) invokes the
alleged concealment of civil status and defalcation of
company funds as grounds to terminate the services of
an employee. That employee, herein private respondent
Grace de Guzman, contrarily argues that what really
motivated PT & T to terminate her services was her
having contracted marriage during her employment,
which is prohibited by petitioner in its company policies.
She thus claims that she was discriminated against in
gross violation of law, such a proscription by an
employer being outlawed by Article 136 of the Labor
Code.
Grace de Guzman was initially hired by petitioner as a
reliever, specifically as a "Supernumerary Project
Worker," for a fixed period from November 21, 1990
until April 20, 1991 vice one C.F. Tenorio who went on
maternity leave.1Under the Reliever Agreement which
she signed with petitioner company, her employment
was to be immediately terminated upon expiration of the
agreed period. Thereafter, from June 10, 1991 to July 1,
1991, and from July 19, 1991 to August 8, 1991, private
respondent's services as reliever were again engaged
by petitioner, this time in replacement of one Erlinda F.
Dizon who went on leave during both periods.2 After
August 8, 1991, and pursuant to their Reliever
Agreement, her services were terminated.
96 | P a g e
On September 2, 1991, private respondent was once
more asked to join petitioner company as a
probationary employee, the probationary period to cover
150 days. In the job application form that was furnished
her to be filled up for the purpose, she indicated in the
portion for civil status therein that she was single
although she had contracted marriage a few months
earlier, that is, on May 26, 1991.3
It now appears that private respondent had made the
same representation in the two successive reliever
agreements which she signed on June 10, 1991 and
July 8, 1991. When petitioner supposedly learned about
the same later, its branch supervisor in Baguio City,
Delia M. Oficial, sent to private respondent a
memorandum dated January 15, 1992 requiring her to
explain the discrepancy. In that memorandum, she was
reminded about the company's policy of not accepting
married women for employment.4
In her reply letter dated January 17, 1992, private
respondent stated that she was not aware of PT&T's
policy regarding married women at the time, and that all
along she had not deliberately hidden her true civil
status.5Petitioner nonetheless remained unconvinced by
her explanations. Private respondent was dismissed
from the company effective January 29, 1992,6 which
she readily contested by initiating a complaint for illegal
dismissal, coupled with a claim for non-payment of cost
of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations
Commission in Baguio City.
At the preliminary conference conducted in connection
therewith, private respondent volunteered the
information, and this was incorporated in the stipulation
of facts between the parties, that she had failed to remit
the amount of P2,380.75 of her collections. She then
executed a promissory note for that amount in favor of
petitioner7. All of these took place in a formal
proceeding and with the agreement of the parties and/or
their counsel.
On November 23, 1993, Labor Arbiter Irenarco R.
Rimando handed down a decision declaring that private
respondent, who had already gained the status of a
regular employee, was illegally dismissed by petitioner.
Her reinstatement, plus payment of the corresponding
back wages and COLA, was correspondingly ordered,
the labor arbiter being of the firmly expressed view that
the ground relied upon by petitioner in dismissing
private respondent was clearly insufficient, and that it
was apparent that she had been discriminated against
on account of her having contracted marriage in
violation of company rules.
On appeal to the National Labor Relations Commission
(NLRC), said public respondent upheld the labor arbiter
and, in its decision dated April 29, 1994, it ruled that
private respondent had indeed been the subject of an
unjust and unlawful discrimination by her employer, PT
& T. However, the decision of the labor arbiter was
modified with the qualification that Grace de Guzman
deserved to be suspended for three months in view of
the dishonest nature of her acts which should not be
condoned. In all other respects, the NLRC affirmed the
decision of the labor arbiter, including the order for the
reinstatement of private respondent in her employment
with PT & T.
The subsequent motion for reconsideration filed by
petitioner was rebuffed by respondent NLRC in its
resolution of November 9, 1994, hence this special civil
action assailing the aforestated decisions of the labor
arbiter and respondent NLRC, as well as the denial
resolution of the latter.
1. Decreed in the Bible itself is the universal norm that
women should be regarded with love and respect but,
through the ages, men have responded to that
injunction with indifference, on the hubristic conceit that
women constitute the inferior sex. Nowhere has that
prejudice against womankind been so pervasive as in
the field of labor, especially on the matter of equal
employment opportunities and standards. In the
Philippine setting, women have traditionally been
considered as falling within the vulnerable groups or
types of workers who must be safeguarded with
preventive and remedial social legislation against
discriminatory and exploitative practices in hiring,
training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights
between men and women in almost all phases of social
and political life, provides a gamut of protective
provisions. To cite a few of the primordial ones, Section
14, Article II8 on the Declaration of Principles and State
Policies, expressly recognizes the role of women in
nation-building and commands the State to ensure, at
all times, the fundamental equality before the law of
women and men. Corollary thereto, Section 3 of Article
XIII9 (the progenitor whereof dates back to both the
1935 and 1973 Constitution) pointedly requires the
State to afford full protection to labor and to promote full
employment and equality of employment opportunities
for all, including an assurance of entitlement to tenurial
security of all workers. Similarly, Section 14 of Article
XIII 10 mandates that the State shall protect working
women through provisions for opportunities that would
enable them to reach their full potential.
2. Corrective labor and social laws on gender inequality
have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as
Presidential Decree No. 442, largely due to our
country's commitment as a signatory to the United
Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). 11
Principal among these laws are Republic Act No.
6727 12 which explicitly prohibits discrimination against
women with respect to terms and conditions of
employment, promotion, and training opportunities;
Republic Act No. 6955 13which bans the "mail-order-
bride" practice for a fee and the export of female labor
to countries that cannot guarantee protection to the
rights of women workers; Republic Act No. 7192 14 also
known as the "Women in Development and Nation
Building Act," which affords women equal opportunities
with men to act and to enter into contracts, and for
appointment, admission, training, graduation, and
commissioning in all military or similar schools of the
Armed Forces of the Philippines and the Philippine
National Police; Republic Act No. 7322 15 increasing the
maternity benefits granted to women in the private
sector; Republic Act No. 7877 16 which outlaws and
punishes sexual harassment in the workplace and in the
education and training environment; and Republic Act
No. 8042, 17 or the "Migrant Workers and Overseas
Filipinos Act of 1995," which prescribes as a matter of
policy, inter alia, the deployment of migrant workers,
with emphasis on women, only in countries where their
rights are secure. Likewise, it would not be amiss to
point out that in the Family Code, 18 women's rights in
the field of civil law have been greatly enhanced and
expanded.
In the Labor Code, provisions governing the rights of
women workers are found in Articles 130 to 138 thereof.
Article 130 involves the right against particular kinds of
night work while Article 132 ensures the right of women
to be provided with facilities and standards which the
Secretary of Labor may establish to ensure their health
97 | P a g e
and safety. For purposes of labor and social legislation,
a woman working in a nightclub, cocktail lounge,
massage clinic, bar or other similar establishments shall
be considered as an employee under Article 138. Article
135, on the other hand, recognizes a woman's right
against discrimination with respect to terms and
conditions of employment on account simply of sex.
Finally, and this brings us to the issue at hand, Article
136 explicitly prohibits discrimination merely by reason
of the marriage of a female employee.
3. Acknowledged as paramount in the due process
scheme is the constitutional guarantee of protection to
labor and security of tenure. Thus, an employer is
required, as a condition sine qua non prior to severance
of the employment ties of an individual under his
employ, to convincingly establish, through substantial
evidence, the existence of a valid and just cause in
dispensing with the services of such employee, one's
labor being regarded as constitutionally protected
property.
On the other hand, it is recognized that regulation of
manpower by the company falls within the so-called
management prerogatives, which prescriptions
encompass the matter of hiring, supervision of workers,
work assignments, working methods and assignments,
as well as regulations on the transfer of employees, lay-
off of workers, and the discipline, dismissal, and recall
of employees. 19 As put in a case, an employer is free to
regulate, according to his discretion and best business
judgment, all aspects of employment, "from hiring to
firing," except in cases of unlawful discrimination or
those which may be provided by law. 20
In the case at bar, petitioner's policy of not accepting or
considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of,
and the right against, discrimination, afforded all women
workers by our labor laws and by no less than the
Constitution. Contrary to petitioner's assertion that it
dismissed private respondent from employment on
account of her dishonesty, the record discloses clearly
that her ties with the company were dissolved
principally because of the company's policy that married
women are not qualified for employment in PT & T, and
not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the
memorandum sent to private respondent by Delia M.
Oficial, the branch supervisor of the company, with the
reminder, in the words of the latter, that "you're fully
aware that the company is not accepting married
women employee (sic), as it was verbally instructed to
you." 21 Again, in the termination notice sent to her by
the same branch supervisor, private respondent was
made to understand that her severance from the service
was not only by reason of her concealment of her
married status but, over and on top of that, was her
violation of the company's policy against marriage ("and
even told you that married women employees are not
applicable [sic] or accepted in our
company.") 22 Parenthetically, this seems to be the
curious reason why it was made to appear in the
initiatory pleadings that petitioner was represented in
this case only by its said supervisor and not by its
highest ranking officers who would otherwise be
solidarily liable with the corporation. 23
Verily, private respondent's act of concealing the true
nature of her status from PT & T could not be properly
characterized as willful or in bad faith as she was
moved to act the way she did mainly because she
wanted to retain a permanent job in a stable company.
In other words, she was practically forced by that very
same illegal company policy into misrepresenting her
civil status for fear of being disqualified from work.
While loss of confidence is a just cause for termination
of employment, it should not be simulated. 24 It must rest
on an actual breach of duty committed by the employee
and not on the employer's caprices. 25 Furthermore, it
should never be used as a subterfuge for causes which
are improper, illegal, or unjustified. 26
In the present controversy, petitioner's expostulations
that it dismissed private respondent, not because the
latter got married but because she concealed that fact,
does have a hollow ring. Her concealment, so it is
claimed, bespeaks dishonesty hence the consequent
loss of confidence in her which justified her dismissal.
Petitioner would asseverate, therefore, that while it has
nothing against marriage, it nonetheless takes umbrage
over the concealment of that fact. This improbable
reasoning, with interstitial distinctions, perturbs the
Court since private respondent may well be minded to
claim that the imputation of dishonesty should be the
other way around.
Petitioner would have the Court believe that although
private respondent defied its policy against its female
employees contracting marriage, what could be an act
of insubordination was inconsequential. What it submits
as unforgivable is her concealment of that marriage yet,
at the same time, declaring that marriage as a trivial
matter to which it supposedly has no objection. In other
words, PT & T says it gives its blessings to its female
employees contracting marriage, despite the maternity
leaves and other benefits it would consequently
respond for and which obviously it would have wanted
to avoid. If that employee confesses such fact of
marriage, there will be no sanction; but if such
employee conceals the same instead of proceeding to
the confessional, she will be dismissed. This line of
reasoning does not impress us as reflecting its true
management policy or that we are being regaled with
responsible advocacy.
This Court should be spared the ennui of strained
reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner
glosses over the fact that it was its unlawful policy
against married women, both on the aspects of
qualification and retention, which compelled private
respondent to conceal her supervenient marriage. It
was, however, that very policy alone which was the
cause of private respondent's secretive conduct now
complained of. It is then apropos to recall the familiar
saying that he who is the cause of the cause is the
cause of the evil caused.
Finally, petitioner's collateral insistence on the
admission of private respondent that she supposedly
misappropriated company funds, as an additional
ground to dismiss her from employment, is somewhat
insincere and self-serving. Concededly, private
respondent admitted in the course of the proceedings
that she failed to remit some of her collections, but that
is an altogether different story. The fact is that she was
dismissed solely because of her concealment of her
marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter
would thus consider petitioner's submissions on this
supposed dishonesty as a mere afterthought, just to
bolster its case for dismissal, is a perceptive conclusion
born of experience in labor cases. For, there was no
showing that private respondent deliberately
misappropriated the amount or whether her failure to
remit the same was through negligence and, if so,
whether the negligence was in nature simple or grave.
In fact, it was merely agreed that private respondent
execute a promissory note to refund the same, which
98 | P a g e
she did, and the matter was deemed settled as a
peripheral issue in the labor case.
Private respondent, it must be observed, had gained
regular status at the time of her dismissal. When she
was served her walking papers on January 29, 1992,
she was about to complete the probationary period of
150 days as she was contracted as a probationary
employee on September 2, 1991. That her dismissal
would be effected just when her probationary period
was winding down clearly raises the plausible
conclusion that it was done in order to prevent her from
earning security of tenure. 27 On the other hand, her
earlier stints with the company as reliever were
undoubtedly those of a regular employee, even if the
same were for fixed periods, as she performed activities
which were essential or necessary in the usual trade
and business of PT & T. 28 The primary standard of
determining regular employment is the reasonable
connection between the activity performed by the
employee in relation to the business or trade of the
employer. 29
As an employee who had therefore gained regular
status, and as she had been dismissed without just
cause, she is entitled to reinstatement without loss of
seniority rights and other privileges and to full back
wages, inclusive of allowances and other benefits or
their monetary equivalent. 30 However, as she had
undeniably committed an act of dishonesty in
concealing her status, albeit under the compulsion of an
unlawful imposition of petitioner, the three-month
suspension imposed by respondent NLRC must be
upheld to obviate the impression or inference that such
act should be condoned. It would be unfair to the
employer if she were to return to its fold without any
sanction whatsoever for her act which was not totally
justified. Thus, her entitlement to back wages, which
shall be computed from the time her compensation was
withheld up to the time of her actual reinstatement, shall
be reduced by deducting therefrom the amount
corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or
policy in the nature of that adopted by petitioner PT & T.
The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage.
It shall be unlawful for an employer to
require as a condition of employment or
continuation of employment that a
woman shall not get married, or to
stipulate expressly or tacitly that upon
getting married, a woman employee
shall be deemed resigned or separated,
or to actually dismiss, discharge,
discriminate or otherwise prejudice a
woman employee merely by reason of
marriage.
This provision had a studied history for its origin can be
traced to Section 8 of Presidential Decree No.
148, 31 better known as the "Women and
Child Labor Law," which amended paragraph (c),
Section 12 of Republic Act No. 679, 32 entitled "An Act to
Regulate the Employment of Women and Children, to
Provide Penalties for Violations Thereof, and for Other
Purposes." The forerunner to Republic Act No. 679, on
the other hand, was Act No. 3071 which became law on
March 16, 1923 and which regulated the employment of
women and children in shops, factories, industrial,
agricultural, and mercantile establishments and other
places of labor in the then Philippine Islands.
It would be worthwhile to reflect upon and adopt here
the rationalization in Zialcita, et al. vs. Philippine Air
Lines, 33 a decision that emanated from the Office of the
President. There, a policy of Philippine Air Lines
requiring that prospective flight attendants must be
single and that they will be automatically separated from
the service once they marry was declared void, it being
violative of the clear mandate in Article 136 of the Labor
Code with regard to discrimination against married
women. Thus:
Of first impression is the incompatibility
of the respondent's policy or regulation
with the codal provision of law.
Respondent is resolute in its contention
that Article 136 of the Labor Code
applies only to women employed in
ordinary occupations and that the
prohibition against marriage of women
engaged in extraordinary occupations,
like flight attendants, is fair and
reasonable, considering the pecularities
of their chosen profession.
We cannot subscribe to the line of
reasoning pursued by respondent. All
along, it knew that the controverted
policy has already met its doom as early
as March 13, 1973 when Presidential
Decree No. 148, otherwise known as
the Women and Child Labor Law, was
promulgated. But for the timidity of those
affected or their labor unions in
challenging the validity of the policy, the
same was able to obtain a momentary
reprieve. A close look at Section 8 of
said decree, which amended paragraph
(c) of Section 12 of Republic Act No.
679, reveals that it is exactly the same
provision reproduced verbatim in Article
136 of the Labor Code, which was
promulgated on May 1, 1974 to take
effect six (6) months later, or on
November 1, 1974.
It cannot be gainsaid that, with the
reiteration of the same provision in the
new Labor Code, all policies and acts
against it are deemed illegal and
therefore abrogated. True, Article 132
enjoins the Secretary of Labor to
establish standards that will ensure the
safety and health of women employees
and in appropriate cases shall by
regulation require employers to
determine appropriate minimum
standards for termination in special
occupations, such as those of flight
attendants, but that is precisely the
factor that militates against the policy of
respondent. The standards have not yet
been established as set forth in the first
paragraph, nor has the Secretary of
Labor issued any regulation affecting
flight attendants.
It is logical to presume that, in the
absence of said standards or
regulations which are as yet to be
established, the policy of respondent
against marriage is patently illegal. This
finds support in Section 9 of the New
Constitution, which provides:
Sec. 9. The State shall afford protection
to labor, promote full employment and
equality in employment, ensure equal
work opportunities regardless of sex,
99 | P a g e
race, or creed, and regulate the
relations between workers and
employees. The State shall assure the
rights of workers to self-organization,
collective bargaining, security of tenure,
and just and humane conditions of work
....
Moreover, we cannot agree to the
respondent's proposition that
termination from employment of flight
attendants on account of marriage is a
fair and reasonable standard designed
for their own health, safety, protection
and welfare, as no basis has been laid
therefor. Actually, respondent claims
that its concern is not so much against
the continued employment of the flight
attendant merely by reason of marriage
as observed by the Secretary of Labor,
but rather on the consequence of
marriage-pregnancy. Respondent
discussed at length in the instant appeal
the supposed ill effects of pregnancy on
flight attendants in the course of their
employment. We feel that this needs no
further discussion as it had been
adequately explained by the Secretary
of Labor in his decision of May 2, 1976.
In a vain attempt to give meaning to its
position, respondent went as far as
invoking the provisions of Articles 52
and 216 of the New Civil Code on the
preservation of marriage as an
inviolable social institution and the
family as a basic social institution,
respectively, as bases for its policy of
non-marriage. In both instances,
respondent predicates absence of a
flight attendant from her home for long
periods of time as contributory to an
unhappy married life. This is pure
conjecture not based on actual
conditions, considering that, in this
modern world, sophisticated technology
has narrowed the distance from one
place to another. Moreover, respondent
overlooked the fact that married flight
attendants can program their lives to
adapt to prevailing circumstances and
events.
Article 136 is not intended to apply only
to women employed in ordinary
occupations, or it should have
categorically expressed so. The
sweeping intendment of the law, be it on
special or ordinary occupations, is
reflected in the whole text and
supported by Article 135 that speaks of
non-discrimination on the employment
of women.
The judgment of the Court of Appeals in Gualberto, et
al. vs. Marinduque Mining & Industrial
Corporation 34considered as void a policy of the same
nature. In said case, respondent, in dismissing from the
service the complainant, invoked a policy of the firm to
consider female employees in the project it was
undertaking as separated the moment they get married
due to lack of facilities for married women. Respondent
further claimed that complainant was employed in the
project with an oral understanding that her services
would be terminated when she gets married. Branding
the policy of the employer as an example of
"discriminatory chauvinism" tantamount to denying
equal employment opportunities to women simply on
account of their sex, the appellate court struck down
said employer policy as unlawful in view of its
repugnance to the Civil Code, Presidential Decree No.
148 and the Constitution.
Under American jurisprudence, job requirements which
establish employer preference or conditions relating to
the marital status of an employee are categorized as a
"sex-plus" discrimination where it is imposed on one sex
and not on the other. Further, the same should be
evenly applied and must not inflict adverse effects on a
racial or sexual group which is protected by federal job
discrimination laws. Employment rules that forbid or
restrict the employment of married women, but do not
apply to married men, have been held to violate Title VII
of the United States Civil Rights Act of 1964, the main
federal statute prohibiting job discrimination against
employees and applicants on the basis of, among other
things, sex. 35
Further, it is not relevant that the rule is not directed
against all women but just against married women. And,
where the employer discriminates against married
women, but not against married men, the variable is sex
and the discrimination is unlawful. 36 Upon the other
hand, a requirement that a woman employee must
remain unmarried could be justified as a "bona fide
occupational qualification," or BFOQ, where the
particular requirements of the job would justify the
same, but not on the ground of a general principle, such
as the desirability of spreading work in the workplace. A
requirement of that nature would be valid provided it
reflects an inherent quality reasonably necessary for
satisfactory job performance. Thus, in one case, a no-
marriage rule applicable to both male and female flight
attendants, was regarded as unlawful since the
restriction was not related to the job performance of the
flight attendants. 37
5. Petitioner's policy is not only in derogation of the
provisions of Article 136 of the Labor Code on the right
of a woman to be free from any kind of stipulation
against marriage in connection with her employment,
but it likewise assaults good morals and public policy,
tending as it does to deprive a woman of the freedom to
choose her status, a privilege that by all accounts
inheres in the individual as an intangible and inalienable
right. 38 Hence, while it is true that the parties to a
contract may establish any agreements, terms, and
conditions that they may deem convenient, the same
should not be contrary to law, morals, good customs,
public order, or public policy. 39 Carried to its logical
consequences, it may even be said that petitioner's
policy against legitimate marital bonds would encourage
illicit or common-law relations and subvert the
sacrament of marriage.
Parenthetically, the Civil Code provisions on the
contract of labor state that the relations between the
parties, that is, of capital and labor, are not merely
contractual, impressed as they are with so much public
interest that the same should yield to the common
good. 40 It goes on to intone that neither capital nor labor
should visit acts of oppression against the other, nor
impair the interest or convenience of the public. 41 In the
final reckoning, the danger of just such a policy against
marriage followed by petitioner PT & T is that it strikes
at the very essence, ideals and purpose of marriage as
an inviolable social institution and, ultimately, of the
family as the foundation of the nation. 42 That it must be
effectively interdicted here in all its indirect, disguised or
dissembled forms as discriminatory conduct derogatory
of the laws of the land is not only in order but
imperatively required.
100 | P a g e
ON THE FOREGOING PREMISES, the petition of
Philippine Telegraph and Telephone Company is
hereby DISMISSED for lack of merit, with double costs
against petitioner.
SO ORDERED.
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO
MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of
Appeals, affirming the decision of the Regional Trial
Court of Manila (Branch X) which ordered petitioner to
return documents and papers taken by her from private
respondent's clinic without the latter's knowledge and
consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private
respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of
medicine, and in the presence of her mother, a driver
and private respondent's secretary, forcibly opened the
drawers and cabinet in her husband's clinic and took
157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours,
greetings cards, cancelled checks, diaries, Dr. Martin's
passport, and photographs. The documents and papers
were seized for use in evidence in a case for legal
separation and for disqualification from the practice of
medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against
petitioner. The case was filed with the Regional Trial
Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin,
declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's
Complaint or those further described in the Motion to
Return and Suppress" and ordering Cecilia Zulueta and
any person acting in her behalf to a immediately return
the properties to Dr. Martin and to pay him P5,000.00,
as nominal damages; P5,000.00, as moral damages
and attorney's fees; and to pay the costs of the suit. The
writ of preliminary injunction earlier issued was made
final and petitioner Cecilia Zulueta and her attorneys
and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and
papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court. Hence
this petition.
There is no question that the documents and papers in
question belong to private respondent, Dr. Alfredo
Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that
reason, the trial court declared the documents and
papers to be properties of private respondent, ordered
petitioner to return them to private respondent and
enjoined her from using them in evidence. In appealing
from the decision of the Court of Appeals affirming the
trial court's decision, petitioner's only ground is that in
Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that
the documents and papers (marked as Annexes A-1 to
J-7 of respondent's comment in that case) were
admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix did not constitute
malpractice or gross misconduct, For this reason it is
contended that the Court of Appeals erred in affirming
the decision of the trial court instead of dismissing
private respondent's complaint.
Petitioner's contention has no merit. The case against
Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant
in that case, charged that in using the documents in
evidence, Atty. Felix, Jr. committed malpractice or gross
misconduct because of the injunctive order of the trial
court. In dismissing the complaint against Atty. Felix,
Jr., this Court took note of the following defense of Atty.
Felix; Jr. which it found to be "impressed with merit:"2
On the alleged malpractice or gross misconduct
of respondent [Alfonso Felix, Jr.], he maintains
that:
....
4. When respondent refiled Cecilia's case for
legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the
Manila Regional Trial Court prohibiting Cecilia
from using the documents Annex "A-1 to J-7."
On September 6, 1983, however having
appealed the said order to this Court on a
petition for certiorari, this Court issued a
restraining order on aforesaid date which order
temporarily set aside the order of the trial court.
Hence, during the enforceability of this Court's
order, respondent's request for petitioner to
admit the genuineness and authenticity of the
subject annexes cannot be looked upon as
malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the
questioned annexes, At that point in time, would
it have been malpractice for respondent to use
petitioner's admission as evidence against him
in the legal separation case pending in the
Regional Trial Court of Makati? Respondent
submits it is not malpractice.
Significantly, petitioner's admission was done
not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes
an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound
by his admission. For Cecilia to avail herself of
her husband's admission and use the same in
her action for legal separation cannot be treated
as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative
case amounts to no more than a declaration that his
use of the documents and papers for the purpose of
securing Dr. Martin's admission as to their genuiness
and authenticity did not constitute a violation of the
injunctive order of the trial court. By no means does the
decision in that case establish the admissibility of the
documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was
acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was
only because, at the time he used the documents and
papers, enforcement of the order of the trial court was
temporarily restrained by this Court. The TRO issued by
this Court was eventually lifted as the petition
for certiorari filed by petitioner against the trial court's
101 | P a g e
order was dismissed and, therefore, the prohibition
against the further use of the documents and papers
became effective again.
Indeed the documents and papers in question are
inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and
correspondence [to be] inviolable"3 is no less applicable
simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party
against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the
Constitution is if there is a "lawful order [from a] court or
when public safety or order requires otherwise, as
prescribed by law."4 Any violation of this provision
renders the evidence obtained inadmissible "for any
purpose in any proceeding." 5
The intimacies between husband and wife do not justify
any one of them in breaking the drawers and cabinets
of the other and in ransacking them for any telltale
evidence of marital infidelity. A person, by contracting
marriage, does not shed his/her integrity or his right to
privacy as an individual and the constitutional protection
is ever available to him or to her.
The law insures absolute freedom of communication
between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other
without the consent of the affected spouse while the
marriage subsists.6Neither may be examined without
the consent of the other as to any communication
received in confidence by one from the other during the
marriage, save for specified exceptions.7 But one thing
is freedom of communication; quite another is a
compulsion for each one to share what one knows with
the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for
lack of merit.
SO ORDERED.
G.R. No. 165842 November 29, 2005
EDUARDO P. MANUEL, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the
Decision1 of the Court of Appeals (CA) in CA-G.R. CR
No. 26877, affirming the Decision2 of the Regional Trial
Court (RTC) of Baguio City, Branch 3, convicting
Eduardo P. Manuel of bigamy in Criminal Case No.
19562-R.
Eduardo was charged with bigamy in an Information
filed on November 7, 2001, the accusatory portion of
which reads:
That on or about the 22nd day of April, 1996, in the City
of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
EDUARDO P. MANUEL, being then previously and
legally married to RUBYLUS [GAA] and without the
said marriage having been legally dissolved, did then
and there willfully, unlawfully and feloniously contract a
second marriage with TINA GANDALERA-MANUEL,
herein complainant, who does not know the existence of
the first marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].
CONTRARY TO LAW. 3
The prosecution adduced evidence that on July 28,
1975, Eduardo was married to Rubylus Gaa before
Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal.4 He met the private
complainant Tina B. Gandalera in Dagupan City
sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was
then 21 years old, a Computer Secretarial student,
while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to
another, they went to a motel where, despite Tinas
resistance, Eduardo succeeded in having his way with
her. Eduardo proposed marriage on several occasions,
assuring her that he was single. Eduardo even brought
his parents to Baguio City to meet Tinas parents, and
was assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the
first week of March 1996. They were married on April
22, 1996 before Judge Antonio C. Reyes, the Presiding
Judge of the RTC of Baguio City, Branch 61.5 It
appeared in their marriage contract that Eduardo was
"single."
The couple was happy during the first three years of
their married life. Through their joint efforts, they were
able to build their home in Cypress Point, Irisan, Baguio
City. However, starting 1999, Manuel started making
himself scarce and went to their house only twice or
thrice a year. Tina was jobless, and whenever she
asked money from Eduardo, he would slap
her.6 Sometime in January 2001, Eduardo took all his
clothes, left, and did not return. Worse, he stopped
giving financial support.
Sometime in August 2001, Tina became curious and
made inquiries from the National Statistics Office (NSO)
in Manila where she learned that Eduardo had been
previously married. She secured an NSO-certified copy
of the marriage contract.7 She was so embarrassed and
humiliated when she learned that Eduardo was in fact
already married when they exchanged their own vows.8
For his part, Eduardo testified that he met Tina
sometime in 1995 in a bar where she worked as a
Guest Relations Officer (GRO). He fell in love with her
and married her. He informed Tina of his previous
marriage to Rubylus Gaa, but she nevertheless agreed
to marry him. Their marital relationship was in order
until this one time when he noticed that she had a "love-
bite" on her neck. He then abandoned her. Eduardo
further testified that he declared he was "single" in his
marriage contract with Tina because he believed in
good faith that his first marriage was invalid. He did not
know that he had to go to court to seek for the
nullification of his first marriage before marrying Tina.
Eduardo further claimed that he was only forced to
marry his first wife because she threatened to commit
suicide unless he did so. Rubylus was charged
with estafa in 1975 and thereafter imprisoned. He
visited her in jail after three months and never saw her
again. He insisted that he married Tina believing that
his first marriage was no longer valid because he had
not heard from Rubylus for more than 20 years.
After trial, the court rendered judgment on July 2, 2002
finding Eduardo guilty beyond reasonable doubt of
102 | P a g e
bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum,
to ten (10) years, as maximum, and directed to
indemnify the private complainant Tina Gandalera the
amount of 200,000.00 by way of moral damages, plus
costs of suit.9
The trial court ruled that the prosecution was able to
prove beyond reasonable doubt all the elements of
bigamy under Article 349 of the Revised Penal Code. It
declared that Eduardos belief, that his first marriage
had been dissolved because of his first wifes 20-year
absence, even if true, did not exculpate him from liability
for bigamy. Citing the ruling of this Court in People v.
Bitdu,10 the trial court further ruled that even if the
private complainant had known that Eduardo had been
previously married, the latter would still be criminally
liable for bigamy.
Eduardo appealed the decision to the CA. He alleged
that he was not criminally liable for bigamy because
when he married the private complainant, he did so in
good faith and without any malicious intent. He
maintained that at the time that he married the private
complainant, he was of the honest belief that his first
marriage no longer subsisted. He insisted that
conformably to Article 3 of the Revised Penal Code,
there must be malice for one to be criminally liable for a
felony. He was not motivated by malice in marrying the
private complainant because he did so only out of his
overwhelming desire to have a fruitful marriage. He
posited that the trial court should have taken into
account Article 390 of the New Civil Code. To support
his view, the appellant cited the rulings of this Court
in United States v. Pealosa11 and Manahan, Jr. v.
Court of Appeals.12
The Office of the Solicitor General (OSG) averred that
Eduardos defense of good faith and reliance on the
Courts ruling in United States v. Enriquez13 were
misplaced; what is applicable is Article 41 of the Family
Code, which amended Article 390 of the Civil Code.
Citing the ruling of this Court in Republic v.
Nolasco,14 the OSG further posited that as provided in
Article 41 of the Family Code, there is a need for a
judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even
assuming that the first marriage was void, the parties
thereto should not be permitted to judge for themselves
the nullity of the marriage;
the matter should be submitted to the proper court for
resolution. Moreover, the OSG maintained, the private
complainants knowledge of the first marriage would not
afford any relief since bigamy is an offense against the
State and not just against the private complainant.
However, the OSG agreed with the appellant that the
penalty imposed by the trial court was erroneous and
sought the affirmance of the decision appealed from
with modification.
On June 18, 2004, the CA rendered judgment affirming
the decision of the RTC with modification as to the
penalty of the accused. It ruled that the prosecution was
able to prove all the elements of bigamy. Contrary to the
contention of the appellant, Article 41 of the Family
Code should apply. Before Manuel could lawfully marry
the private complainant, there should have been a
judicial declaration of Gaas presumptive death as the
absent spouse. The appellate court cited the rulings of
this Court in Mercado v. Tan15 and Domingo v. Court of
Appeals16 to support its ruling. The dispositive portion of
the decision reads:
WHEREFORE, in the light of the foregoing, the
Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby reflects, that
accused-appellant is sentenced to an indeterminate
penalty of two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to ten (10)
years of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects.
SO ORDERED.17
Eduardo, now the petitioner, filed the instant petition for
review on certiorari, insisting that:
I the evidence on record. To bolster its claim, the OSG
THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT RULED
THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH AS
PROVIDED FOR UNDER ARTICLE 41 OF THE
FAMILY CODE.
II
THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED
THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN
LAW.18
The petitioner maintains that the prosecution failed to
prove the second element of the felony, i.e., that the
marriage has not been legally dissolved or, in case
his/her spouse is absent, the absent spouse could not
yet be presumed dead under the Civil Code. He avers
that when he married Gandalera in 1996, Gaa had
been "absent" for 21 years since 1975; under Article
390 of the Civil Code, she was presumed dead as a
matter of law. He points out that, under the first
paragraph of Article 390 of the Civil Code, one who has
been absent for seven years, whether or not he/she is
still alive, shall be presumed dead for all
purposes except for succession, while the second
paragraph refers to the rule on legal presumption of
death with respect to succession.
The petitioner asserts that the presumptive death of the
absent spouse arises by operation of law upon the
satisfaction of two requirements: the
specified period and the present spouses reasonable
belief that the absentee is dead. He insists that he was
able to prove that he had not heard from his first wife
since 1975 and that he had no knowledge of her
whereabouts or whether she was still alive; hence,
under Article 41 of the Family Code, the presumptive
death of Gaa had arisen by operation of law, as the
two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus
be acquitted of the crime of bigamy.
The petitioner insists that except for the period of
absences provided for in Article 390 of the Civil Code,
the rule therein on legal presumptions remains valid and
effective. Nowhere under Article 390 of the Civil Code
does it require that there must first be a judicial
declaration of death before the rule on presumptive
death would apply. He further asserts that contrary to
the rulings of the trial and appellate courts, the
requirement of a judicial declaration of presumptive
death under Article 41 of the Family Code is only a
requirement for the validity of the subsequent or second
marriage.
103 | P a g e
The petitioner, likewise, avers that the trial court and the
CA erred in awarding moral damages in favor of the
private complainant. The private complainant was a
"GRO" before he married her, and even knew that he
was already married. He genuinely loved and took care
of her and gave her financial support. He also pointed
out that she had an illicit relationship with a lover whom
she brought to their house.
In its comment on the petition, the OSG maintains that
the decision of the CA affirming the petitioners
conviction is in accord with the law, jurisprudence and
cited the ruling of this Court in Republic v. Nolasco.19
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines
and penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall
be imposed upon any person who shall contract a
second or subsequent marriage before the former
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper
proceedings.
The provision was taken from Article 486 of the Spanish
Penal Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin
hallarse legtimamente disuelto el anterior, ser
castigado con la pena de prision mayor. xxx
The reason why bigamy is considered a felony is to
preserve and ensure the juridical tie of marriage
established by law.20 The phrase "or before the absent
spouse had been declared presumptively dead by
means of a judgment rendered in the proper
proceedings" was incorporated in the Revised Penal
Code because the drafters of the law were of the
impression that "in consonance with the civil law which
provides for the presumption of death after an absence
of a number of years, the judicial declaration of
presumed death like annulment of marriage should
be a justification for bigamy."21
For the accused to be held guilty of bigamy, the
prosecution is burdened to prove the felony: (a) he/she
has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage
having been lawfully dissolved. The felony is
consummated on the celebration of the second
marriage or subsequent marriage.22 It is essential in the
prosecution for bigamy that the alleged second
marriage, having all the essential requirements, would
be valid were it not for the subsistence of the first
marriage.23 Viada avers that a third element of the crime
is that the second marriage must be entered into with
fraudulent intent (intencion fraudulente) which is an
essential element of a felony by dolo.24 On the other
hand, Cuello Calon is of the view that there are only two
elements of bigamy: (1) the existence of a marriage that
has not been lawfully dissolved; and (2) the celebration
of a second marriage. It does not matter whether the
first marriage is void or voidable because such
marriages have juridical effects until lawfully dissolved
by a court of competent jurisdiction.25 As the Court ruled
in Domingo v. Court of Appeals26 and Mercado v.
Tan,27 under the Family Code of the Philippines, the
judicial declaration of nullity of a previous marriage is a
defense.
In his commentary on the Revised Penal Code, Albert is
of the same view as Viada and declared that there are
three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent
intention constituting the felony of the act.28 He
explained that:
This last element is not stated in Article 349,
because it is undoubtedly incorporated in the principle
antedating all codes, and, constituting one of the
landmarks of our Penal Code, that, where there is no
willfulness there is no crime. There is no willfulness if
the subject
believes that the former marriage has been dissolved;
and this must be supported by very strong evidence,
and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a
second marriage in the reasonable and well-founded
belief that his first wife is dead, because of the many
years that have elapsed since he has had any news of
her whereabouts, in spite of his endeavors to find her,
cannot be deemed guilty of the crime of bigamy,
because there is no fraudulent intent which is one of the
essential elements of the crime.29
As gleaned from the Information in the RTC, the
petitioner is charged with bigamy, a felony
by dolo (deceit). Article 3, paragraph 2 of the Revised
Penal Code provides that there is deceit when the act is
performed with deliberate intent. Indeed, a felony
cannot exist without intent. Since a felony by dolo is
classified as an intentional felony, it is deemed
voluntary.30 Although the words "with malice" do not
appear in Article 3 of the Revised Penal Code, such
phrase is included in the word "voluntary."31
Malice is a mental state or condition prompting the
doing of an overt act without legal excuse or justification
from which another suffers injury.32 When the act or
omission defined by law as a felony is proved to have
been done or committed by the accused, the law
presumes it to have been intentional.33 Indeed, it is a
legal presumption of law that every man intends the
natural or probable consequence of his voluntary act in
the absence of proof to the contrary, and such
presumption must prevail unless a reasonable doubt
exists from a consideration of the whole evidence.34
For one to be criminally liable for a felony by dolo, there
must be a confluence of both an evil act and an evil
intent. Actus non facit reum, nisi mens sit rea.35
In the present case, the prosecution proved that the
petitioner was married to Gaa in 1975, and such
marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.36 The prosecution also
proved that the petitioner married the private
complainant in 1996, long after the effectivity of the
Family Code.
The petitioner is presumed to have acted with malice or
evil intent when he married the private complainant. As
a general rule, mistake of fact or good faith of the
accused is a valid defense in a prosecution for a felony
by dolo; such defense negates malice or criminal intent.
However, ignorance of the law is not an excuse
because everyone is presumed to know the
law. Ignorantia legis neminem excusat.
It was the burden of the petitioner to prove his defense
that when he married the private complainant in 1996,
he was of the well-grounded belief
that his first wife was already dead, as he had not heard
from her for more than 20 years since 1975. He should
have adduced in evidence a decision of a competent
court declaring the presumptive death of his first wife as
required by Article 349 of the Revised Penal Code, in
relation to Article 41 of the Family Code. Such judicial
104 | P a g e
declaration also constitutes proof that the petitioner
acted in good faith, and would negate criminal intent on
his part when he married the private complainant and,
as a consequence, he could not be held guilty of
bigamy in such case. The petitioner, however, failed to
discharge his burden.
The phrase "or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered on the proceedings" in Article 349 of the
Revised Penal Code was not an aggroupment of empty
or useless words. The requirement for a judgment of the
presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the
pains and the consequences of a second marriage,
precisely because he/she could be charged and
convicted of bigamy if the defense of good faith based
on mere testimony is found incredible.
The requirement of judicial declaration is also for the
benefit of the State. Under Article II, Section 12 of the
Constitution, the "State shall protect and strengthen the
family as a basic autonomous social institution."
Marriage is a social institution of the highest
importance. Public policy, good morals and the interest
of society require that the marital relation should be
surrounded with every safeguard and its severance only
in the manner prescribed and the causes specified by
law.37 The laws regulating civil marriages are necessary
to serve the interest, safety, good order, comfort or
general welfare of the community and the parties can
waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered
society by encouraging stable relationships over
transient ones; it enhances the welfare of the
community.
In a real sense, there are three parties to every civil
marriage; two willing spouses and an approving State.
On marriage, the parties assume new relations to each
other and the State touching nearly on every aspect of
life and death. The consequences of an invalid marriage
to the parties, to innocent parties and to society, are so
serious that the law may well take means calculated to
ensure the procurement of the most positive evidence
of death of the first spouse or of the presumptive death
of the absent spouse38 after the lapse of the period
provided for under the law. One such means is the
requirement of the declaration by a competent court of
the presumptive death of an absent spouse as proof
that the present spouse contracts a subsequent
marriage on a well-grounded belief of the death of the
first spouse. Indeed, "men readily believe what they
wish to be true," is a maxim of the old jurists. To sustain
a second marriage and to vacate a first because one of
the parties believed the other to be dead would make
the existence of the marital relation determinable, not by
certain extrinsic facts, easily capable of forensic
ascertainment and proof, but by the subjective condition
of individuals.39 Only with such proof can marriage be
treated as so dissolved as to permit second
marriages.40 Thus, Article 349 of the Revised Penal
Code has made the dissolution of marriage dependent
not only upon the personal belief of parties, but upon
certain objective facts easily capable of accurate judicial
cognizance,41 namely, a judgment of the presumptive
death of the absent spouse.
The petitioners sole reliance on Article 390 of the Civil
Code as basis for his acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide
Art. 390. After an absence of seven years, it being
unknown whether or not, the absentee still lives, he
shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-
five years, an absence of five years shall be sufficient in
order that his succession may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has not
been heard of for four years since the loss of the vessel
or aeroplane;
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
The presumption of death of the spouse who had been
absent for seven years, it being unknown whether or not
the absentee still lives, is created by law and arises
without any necessity of judicial declaration.42 However,
Article 41 of the Family Code, which amended the
foregoing rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-
founded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present
must institute a summary proceeding as provided in this
Court for the declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.43
With the effectivity of the Family Code,44 the period of
seven years under the first paragraph of Article 390 of
the Civil Code was reduced to four consecutive years.
Thus, before the spouse present may contract a
subsequent marriage, he or she must institute summary
proceedings for the declaration of the presumptive
death of the absentee spouse,45 without prejudice to the
effect of the reappearance of the absentee spouse. As
explained by this Court in Armas v. Calisterio:46
In contrast, under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must
concur, viz.: (a) The prior spouse of the contracting
party must have been absent for four consecutive
years, or two years where there is danger of death
under the circumstances stated in Article 391 of the
Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old
rule, a judicial declaration of presumptive death of the
absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in
consonance with the requirement of judicial intervention
105 | P a g e
in subsequent marriages as so provided in Article 41, in
relation to Article 40, of the Family Code.
The Court rejects petitioners contention that the
requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code
is designed merely to enable the spouse present to
contract a valid second marriage and not for the
acquittal of one charged with bigamy. Such provision
was designed to harmonize civil law and Article 349 of
the Revised Penal Code, and put to rest the confusion
spawned by the rulings of this Court and comments of
eminent authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v.
Hortiguela47 that, for purposes of the marriage law, it is
not necessary to have the former spouse judicially
declared an absentee before the spouse present may
contract a subsequent marriage. It held that the
declaration of absence made in accordance with the
provisions of the Civil Code has for its sole purpose the
taking of the necessary precautions for the
administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only
requires that the former spouse had been absent for
seven consecutive years at the time of the second
marriage, that the spouse present does not know his or
her former spouse to be living, that such former spouse
is generally reputed to be dead and the spouse present
so believes at the time of the celebration of the
marriage.48 In In Re Szatraw,49 the Court declared that a
judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven
years, being a presumption juris tantum only, subject to
contrary proof, cannot reach the stage of finality or
become final; and that proof of actual death of the
person presumed dead being unheard from in seven
years, would have to be made in another proceeding to
have such particular fact finally determined. The Court
ruled that if a judicial decree declaring a person
presumptively dead because he or she had not been
heard from in seven years cannot become final and
executory even after the lapse of the reglementary
period within which an appeal may be taken, for such
presumption is still disputable and remains subject to
contrary proof, then a petition for such a declaration is
useless, unnecessary, superfluous and of no benefit to
the petitioner. The Court stated that it should not waste
its valuable time and be made to perform a superfluous
and meaningless act.50 The Court also took note that a
petition for a declaration of the presumptive death of an
absent spouse may even be made in collusion with the
other spouse.
In Lukban v. Republic of the Philippines,51 the Court
declared that the words "proper proceedings" in Article
349 of the Revised Penal Code can only refer to those
authorized by law such as Articles 390 and 391 of the
Civil Code which refer to the administration or
settlement of the estate of a deceased person. In Gue
v. Republic of the Philippines,52 the Court rejected the
contention of the petitioner therein that, under Article
390 of the Civil Code, the courts are authorized to
declare the presumptive death of a person after an
absence of seven years. The Court reiterated its rulings
in Szatraw, Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view
that "the provision of Article 349 or "before the absent
spouse has been declared presumptively dead by
means of a judgment reached in the proper
proceedings" is erroneous and should be considered as
not written. He opined that such provision presupposes
that, if the prior marriage has not been legally dissolved
and the absent first spouse has not been declared
presumptively dead in a proper court proceedings, the
subsequent marriage is bigamous. He maintains that
the supposition is not true.53 A second marriage is
bigamous only when the circumstances in paragraphs 1
and 2 of Article 83 of the Civil Code are not
present.54 Former Senator Ambrosio Padilla was,
likewise, of the view that Article 349 seems to require
judicial decree of dissolution or judicial declaration of
absence but even with such decree, a second marriage
in good faith will not constitute bigamy. He posits that a
second marriage, if not illegal, even if it be annullable,
should not give rise to bigamy.55 Former Justice Luis B.
Reyes, on the other hand, was of the view that in the
case of an absent spouse who could not yet be
presumed dead according to the Civil Code, the spouse
present cannot be charged and convicted of bigamy in
case he/she contracts a second marriage.56
The Committee tasked to prepare the Family Code
proposed the amendments of Articles 390 and 391 of
the Civil Code to conform to Article 349 of the Revised
Penal Code, in that, in a case where a spouse is absent
for the requisite period, the present spouse may
contract a subsequent marriage only after securing a
judgment declaring the presumptive death of the absent
spouse to avoid being charged and convicted of
bigamy; the present spouse will have to adduce
evidence that he had a well-founded belief that the
absent spouse was already dead.57 Such judgment is
proof of the good faith of the present spouse who
contracted a subsequent marriage; thus, even if the
present spouse is later charged with bigamy if the
absentee spouse reappears, he cannot be convicted of
the crime. As explained by former Justice Alicia
Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the
Revised Penal Code providing that the present spouse
must first ask for a declaration of presumptive death of
the absent spouse in order not to be guilty of bigamy in
case he or she marries again.
The above Article of the Family Code now clearly
provides that for the purpose of the present spouse
contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee,
without prejudice to the latters reappearance. This
provision is intended to protect the present spouse from
a criminal prosecution for bigamy under Art. 349 of the
Revised Penal Code because with the judicial
declaration that the missing spouses presumptively
dead, the good faith of the present spouse in
contracting a second marriage is already established.58
Of the same view is former Dean Ernesto L. Pineda
(now Undersecretary of Justice) who wrote that things
are now clarified. He says judicial declaration of
presumptive death is now authorized for purposes of
remarriage. The present spouse must institute a
summary proceeding for declaration of presumptive
death of the absentee, where the ordinary rules of
procedure in trial will not be followed. Affidavits will
suffice, with possible clarificatory examinations of
affiants if the Judge finds it necessary for a full grasp of
the facts. The judgment declaring an absentee as
presumptively dead is without prejudice to the effect of
reappearance of the said absentee.
Dean Pineda further states that before, the weight of
authority is that the clause "before the absent spouse
has been declared presumptively dead x x x" should be
disregarded because of Article 83, paragraph 3 of the
Civil Code. With the new law, there is a need to institute
a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is
bigamy.59
106 | P a g e
According to Retired Supreme Court Justice Florenz D.
Regalado, an eminent authority on Criminal Law, in
some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of
presumptive death, which could then be made only in
the proceedings for the settlement of his
estate.60 Before such declaration, it was held that the
remarriage of the other spouse is bigamous even if
done in good faith.61 Justice Regalado opined that there
were contrary views because of the ruling in Jones and
the provisions of Article 83(2) of the Civil Code, which,
however, appears to have been set to rest by Article 41
of the Family Code, "which requires a summary hearing
for the declaration of presumptive death of the absent
spouse before the other spouse can remarry."
Under Article 238 of the Family Code, a petition for a
declaration of the presumptive death of an absent
spouse under Article 41 of the Family Code may be filed
under Articles 239 to 247 of the same Code.62
On the second issue, the petitioner, likewise, faults the
trial court and the CA for awarding moral damages in
favor of the private complainant. The petitioner
maintains that moral damages may be awarded only in
any of the cases provided in Article 2219 of the Civil
Code, and bigamy is not one of them. The petitioner
asserts that the appellate court failed to apply its ruling
in People v. Bondoc,63 where an award of moral
damages for bigamy was disallowed. In any case, the
petitioner maintains, the private complainant failed to
adduce evidence to prove moral damages.
The appellate court awarded moral damages to the
private complainant on its finding that she adduced
evidence to prove the same. The appellate court ruled
that while bigamy is not included in those cases
enumerated in Article 2219 of the Civil Code, it is not
proscribed from awarding moral damages against the
petitioner. The appellate court ruled that it is not bound
by the following ruling in People v. Bondoc:
... Pero si en dichos asuntos se adjudicaron daos, ello
se debi indedublamente porque el articulo 2219 del
Cdigo Civil de Filipinas autoriza la adjudicacin de
daos morales en los delitos de estupro, rapto,
violacin, adulterio o concubinato, y otros actos
lascivos, sin incluir en esta enumeracin el delito de
bigamia. No existe, por consiguiente, base legal para
adjudicar aqu los daos de 5,000.00 arriba
mencionados.64
The OSG posits that the findings and ruling of the CA
are based on the evidence and the law. The OSG,
likewise, avers that the CA was not bound by its ruling
in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendants wrongful act
or omission.65 An award for moral damages requires the
confluence of the following conditions: first, there must
be an injury, whether physical, mental or psychological,
clearly sustained by the claimant; second, there must
be culpable act or omission factually established; third,
the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any
of the cases stated in Article 2219 or Article 2220 of the
Civil Code.66
Moral damages may be awarded in favor of the
offended party only in criminal cases enumerated in
Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the
following and analogous cases.
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27,
28, 29, 30, 32, 34 and 35.
The parents of the female seduced, abducted, raped, or
abused, referred to in No. 3 of this article, may also
recover moral damages.
The spouse, descendants, ascendants, and brothers
and sisters may bring the action mentioned in No. 9 of
this article in the order named.
Thus, the law does not intend that moral damages
should be awarded in all cases where the aggrieved
party has suffered mental anguish, fright, moral
anxieties, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury arising
out of an act or omission of another, otherwise, there
would not have been any reason for the inclusion of
specific acts in Article 221967 and analogous cases
(which refer to those cases bearing analogy or
resemblance, corresponds to some others or
resembling, in other respects, as in form, proportion,
relation, etc.)68
Indeed, bigamy is not one of those specifically
mentioned in Article 2219 of the Civil Code in which the
offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the
petitioner is liable to the private complainant for moral
damages under Article 2219 in relation to Articles 19, 20
and 21 of the Civil Code.
According to Article 19, "every person must, in the
exercise of his rights and in the performance of his act
with justice, give everyone his due, and observe
honesty and good faith." This provision contains what is
commonly referred to as the principle of abuse of rights,
and sets certain standards which must be observed not
only in the exercise of ones rights but also in the
performance of ones duties. The standards are the
following: act with justice; give everyone his due; and
observe honesty and good faith. The elements for
abuse of rights are: (a) there is a legal right or duty; (b)
exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.69
Article 20 speaks of the general sanctions of all other
provisions of law which do not especially provide for its
107 | P a g e
own sanction. When a right is exercised in a manner
which does not conform to the standards set forth in the
said provision and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer
must be responsible.70 If the provision does not provide
a remedy for its violation, an action for damages under
either Article 20 or Article 21 of the Civil Code would be
proper. Article 20 provides that "every person who,
contrary to law, willfully or negligently causes damage
to another shall indemnify the latter for the same." On
the other hand, Article 21 provides that "any person
who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or
public policy shall compensate the latter for damages."
The latter provision
is adopted to remedy "the countless gaps in the statutes
which leave so many victims of moral wrongs helpless,
even though they have actually suffered material and
moral injury should vouchsafe adequate legal remedy
for that untold number of moral wrongs which it is
impossible for human foresight to prove for specifically
in the statutes." Whether or not the principle of abuse of
rights has been violated resulting in damages under
Article 20 or Article 21 of the Civil Code or other
applicable provisions of law depends upon the
circumstances of each case.71
In the present case, the petitioner courted the private
complainant and proposed to marry her. He assured her
that he was single. He even brought his parents to the
house of the private complainant where he and his
parents made the same assurance that he was single.
Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage
that he was single. She lived with the petitioner and
dutifully performed her duties as his wife, believing all
the while that he was her lawful husband. For two years
or so until the petitioner heartlessly abandoned her, the
private complainant had no inkling that he was already
married to another before they were married.
Thus, the private complainant was an innocent victim of
the petitioners chicanery and heartless deception, the
fraud consisting not of a single act alone, but a
continuous series of acts. Day by day, he maintained
the appearance of being a lawful husband to the private
complainant, who
changed her status from a single woman to a married
woman, lost the consortium, attributes and support of a
single man she could have married lawfully and
endured mental pain and humiliation, being bound to a
man who it turned out was not her lawful husband.72
The Court rules that the petitioners collective acts of
fraud and deceit before, during and after his marriage
with the private complainant were willful, deliberate and
with malice and caused injury to the latter. That she did
not sustain any physical injuries is not a bar to an award
for moral damages. Indeed, in Morris v. Macnab,73 the
New Jersey Supreme Court ruled:
xxx The defendant cites authorities which indicate that,
absent physical injuries, damages for shame,
humiliation, and mental anguish are not recoverable
where the actor is simply negligent. See Prosser, supra,
at p. 180; 2 Harper & James, Torts, 1031 (1956). But
the authorities all recognize that where the wrong is
willful rather than negligent, recovery may be had for
the ordinary, natural, and proximate consequences
though they consist of shame, humiliation, and mental
anguish. See Spiegel v. Evergreen Cemetery Co., 117
NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v.
Millinery Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p.
38. Here the defendants conduct was not merely
negligent, but was willfully and maliciously wrongful. It
was bound to result in shame, humiliation, and mental
anguish for the plaintiff, and when such result did ensue
the plaintiff became entitled not only to compensatory
but also to punitive damages. See Spiegel v. Evergreen
Cemetery Co., supra; Kuzma v Millinery Workers, etc.,
Local 24, supra. CF. Note, "Exemplary Damages in the
Law of Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff
testified that because of the defendants bigamous
marriage to her and the attendant publicity she not only
was embarrassed and "ashamed to go out" but
"couldnt sleep" but "couldnt eat," had terrific
headaches" and "lost quite a lot of weight." No just
basis appears for judicial interference with the jurys
reasonable allowance of $1,000 punitive damages on
the first count. See Cabakov v. Thatcher, 37 N.J. Super
249, 117 A.2d 298 (App. Div.74 1955).
refused to lend its aid to the enforcement of a contract
illegal on its face or to one who has consciously and
voluntarily become a party to an illegal act upon which
the cause of action is founded. Szadiwicz v. Cantor, 257
Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.76
Considering the attendant circumstances of the case,
the Court finds the award of 200,000.00 for moral
damages to be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED. The assailed decision of the Court of
Appeals isAFFIRMED. Costs against the petitioner.
SO ORDERED.

The Court thus declares that the petitioners acts are

against public policy as they undermine and subvert the
family as a social institution, good morals and the
interest and general welfare of society.

Because the private complainant was an innocent victim

of the petitioners perfidy, she is not barred from
claiming moral damages. Besides, even considerations
of public policy would not prevent her from recovery. As
held in Jekshewitz v. Groswald:75

Where a person is induced by the fraudulent

representation of another to do an act which, in
consequence of such misrepresentation, he believes to
be neither illegal nor immoral, but which is in fact a
criminal offense, he has a right of action against the
person so inducing him for damages sustained by him
in consequence of his having done such act. Burrows v.
Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147
Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court
said that a false representation by the defendant that he
was divorced from his former wife, whereby the plaintiff
was induced to marry him, gave her a remedy in tort for
deceit. It seems to have been assumed that the fact that
she had unintentionally violated the law or innocently
committed a crime by cohabiting with him would be no
bar to the action, but rather that it might be a ground for
enhancing her damages. The injury to the plaintiff was
said to be in her being led by the promise to give the
fellowship and assistance of a wife to one who was not
her husband and to assume and act in a relation and
condition that proved to be false and ignominious.
Damages for such an injury were held to be recoverable
in Sherman v. Rawson, 102 Mass. 395 and Kelley v.
Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not

base her cause of action upon any transgression of the
law by herself but upon the defendants
misrepresentation. The criminal relations which
followed, innocently on her part, were but one of the
incidental results of the defendants fraud for which
damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman

to enter into the marriage relation have been maintained
in other jurisdictions. Sears v. Wegner, 150 Mich. 388,
114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
McMillan, 99 Wash. 626, 170 P. 324; Blossom v.
Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer,
68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of
public policy would not prevent recovery where the
circumstances are such that the plaintiff was conscious
of no moral turpitude, that her illegal action was induced
solely by the defendants misrepresentation, and that
she does not base her cause of action upon any
transgression of the law by herself. Such
considerations
distinguish this case from cases in which the court has

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