Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 122494 October 8, 1998

EVERETT STEAMSHIP CORPORATION, petitioner,

vs.
COURT OF APPEALS and HERNANDEZ TRADING CO. INC., respondents.

MARTINEZ, J.:

Petitioner Everett Steamship Corporation, through this petition for review, seeks the reversal of the decision1 of
the Court of Appeals, dated June 14, 1995, in CA-G.R. No. 428093, which affirmed the decision of the
Regional Trial Court of Kalookan City, Branch 126, in Civil Case No. C-15532, finding petitioner liable to
private respondent Hernandez Trading Co., Inc. for the value of the lost cargo.

Private respondent imported three crates of bus spare parts marked as MARCO C/No. 12, MARCO
C/No. 13 and MARCO C/No. 14, from its supplier, Maruman Trading Company, Ltd. (Maruman Trading),
a foreign corporation based in Inazawa, Aichi, Japan. The crates were shipped from Nagoya, Japan to
Manila on board "ADELFAEVERETTE," a vessel owned by petitioner's principal, Everett Orient Lines.
The said crates were covered by Bill of Lading No. NGO53MN.

Upon arrival at the port of Manila, it was discovered that the crate marked MARCO C/No. 14 was
missing. This was confirmed and admitted by petitioner in its letter of January 13, 1992 addressed to
private respondent, which thereafter made a formal claim upon petitioner for the value of the lost cargo
amounting to One Million Five Hundred Fifty Two Thousand Five Hundred (Y1,552,500.00) Yen, the
amount shown in an Invoice No. MTM-941, dated November 14, 1991. However, petitioner offered to pay
only One Hundred Thousand (Y100,000.00) Yen, the maximum amount stipulated under Clause 18 of
the covering bill of lading which limits the liability of petitioner.

Private respondent rejected the offer and thereafter instituted a suit for collection docketed as Civil
Case No. C-15532, against petitioner before the Regional Trial Court of Caloocan City, Branch 126.

At the pre-trial conference, both parties manifested that they have no testimonial evidence to offer and
agreed instead to file their respective memoranda.

On July 16, 1993, the trial court rendered judgment 2 in favor of private respondent, ordering petitioner
to pay: (a) Y1,552,500.00; (b) Y20,000.00 or its peso equivalent representing the actual value of the lost
cargo and the material and packaging cost; (c) 10% of the total amount as an award for and as
contingent attorney's fees; and (d) to pay the cost of the suit. The trial court ruled:

Considering defendant's categorical admission of loss and its failure to overcome the
presumption of negligence and fault, the Court conclusively finds defendant liable to
the plaintiff. The next point of inquiry the Court wants to resolve is the extent of the
liability of the defendant. As stated earlier, plaintiff contends that defendant should be
held liable for the whole value for the loss of the goods in the amount of Y1,552,500.00
because the terms appearing at the back of the bill of lading was so written in fine
prints and that the same was not signed by plaintiff or shipper thus, they are not bound
 by clause stated in paragraph 18 of the bill of lading. On the other hand, defendant
merely admitted that it lost the shipment but shall be liable only up to the amount of
Y100,000.00.

The Court subscribes to the provisions of Article 1750 of the New Civil Code —

Art. 1750. "A contract fixing the sum that may be recovered by the
owner or shipper for the loss, destruction or deterioration of the goods
is valid, if it is reasonable and just under the circumstances, and has
been fairly and freely agreed upon."

It is required, however, that the contract must be reasonable and just under the
circumstances and has been fairly and freely agreed upon. The requirements provided
in Art. 1750 of the New Civil Code must be complied with before a common carrier can
claim a limitation of its pecuniary liability in case of loss, destruction or deterioration of
the goods it has undertaken to transport.

In the case at bar, the Court is of the view that the requirements of said article have not
been met. The fact that those conditions are printed at the back of the bill of lading in
letters so small that they are hard to read would not warrant the presumption that the
plaintiff or its supplier was aware of these conditions such that he had "fairly and freely
agreed" to these conditions. It can not be said that the plaintiff had actually entered
into a contract with the defendant, embodying the conditions as printed at the back of
the bill of lading that was issued by the defendant to plaintiff.

On appeal, the Court of Appeals deleted the award of attorney's fees but affirmed the trial court's
findings with the additional observation that private respondent can not be bound by the terms and
conditions of the bill of lading because it was not privy to the contract of carriage. It said:

As to the amount of liability, no evidence appears on record to show that the appellee
(Hernandez Trading Co.) consented to the terms of the Bill of Lading. The shipper
named in the Bill of Lading is Maruman Trading Co., Ltd. whom the appellant (Everett
Steamship Corp.) contracted with for the transportation of the lost goods.

Even assuming arguendo that the shipper Maruman Trading Co., Ltd. accepted the
terms of the bill of lading when it delivered the cargo to the appellant, still it does not
necessarily follow that appellee Hernandez Trading, Company as consignee is bound
thereby considering that the latter was never privy to the shipping contract.

xxx xxx xxx

Never having entered into a contract with the appellant, appellee should therefore not
be bound by any of the terms and conditions in the bill of lading.

Hence, it follows that the appellee may recover the full value of the shipment lost, the
basis of which is not the breach of contract as appellee was never a privy to the any
contract with the appellant, but is based on Article 1735 of the New Civil Code, there
being no evidence to prove satisfactorily that the appellant has overcome the
presumption of negligence provided for in the law.

Petitioner now comes to us arguing that the Court of Appeals erred (1) in ruling that the consent of the
consignee to the terms and conditions of the bill of lading is necessary to make such stipulations
binding upon it; (2) in holding that the carrier's limited package liability as stipulated in the bill of lading
does not apply in the instant case; and (3) in allowing private respondent to fully recover the full
alleged value of its lost cargo.
We shall first resolve the validity of the limited liability clause in the bill of lading.

A stipulation in the bill of lading limiting the common carrier's liability for loss or destruction of a cargo
to a certain sum, unless the shipper or owner declares a greater value, is sanctioned by law,
particularly Articles 1749 and 1750 of the Civil Code which provide:

Art. 1749. A stipulation that the common carrier's liability is limited to the value of the
goods appearing in the bill of lading, unless the shipper or owner declares a greater
value, is binding.

Art. 1750. A contract fixing the sum that may be recovered by the owner or shipper for
the loss, destruction, or deterioration of the goods is valid, if it is reasonable and just
under the circumstances, and has been freely and fairly agreed upon.

Such limited-liability clause has also been consistently upheld by this Court in a number of
cases.3 Thus, inSea Land Service, Inc. vs. Intermediate Appellate Court 4, we ruled:

It seems clear that even if said section 4 (5) of the Carriage of Goods by Sea Act did not
exist, the validity and binding effect of the liability limitation clause in the bill of lading
here are nevertheless fully sustainable on the basis alone of the cited Civil Code
Provisions. That said stipulation is just and reasonable is arguable from the fact that it
echoes Art. 1750 itself in providing a limit to liability only if a greater value is not
declared for the shipment in the bill of lading. To hold otherwise would amount to
questioning the justness and fairness of the law itself, and this the private respondent
does not pretend to do. But over and above that consideration, the just and reasonable
character of such stipulation is implicit in it giving the shipper or owner the option of
avoiding accrual of liability limitation by the simple and surely far from onerous
expedient of declaring the nature and value of the shipment in the bill of lading.

Pursuant to the afore-quoted provisions of law, it is required that the stipulation limiting the common
carrier's liability for loss must be "reasonable and just under the circumstances, and has been freely
and fairly agreed upon."

The bill of lading subject of the present controversy specifically provides, among others:

18. All claims for which the carrier may be liable shall be adjusted and settled on the
basis of the shipper's net invoice cost plus freight and insurance premiums, if paid,
and in no event shall the carrier be liable for any loss of possible profits or any
consequential loss.

The carrier shall not be liable for any loss of or any damage to or in any connection
with, goods in an amount exceeding One Hundred thousand Yen in Japanese Currency
(Y100,000.00) or its equivalent in any other currency per package or customary freight
unit (whichever is least)unless the value of the goods higher than this amount is
declared in writing by the shipper before receipt of the goods by the carrier and
inserted in the Bill of Lading and extra freight is paid as required. (Emphasis supplied)

The above stipulations are, to our mind, reasonable and just. In the bill of lading, the carrier made it
clear that its liability would only be up to One Hundred Thousand (Y100,000.00) Yen. However, the
shipper, Maruman Trading, had the option to declare a higher valuation if the value of its cargo was
higher than the limited liability of the carrier. Considering that the shipper did not declare a higher
valuation, it had itself to blame for not complying with the stipulations.

The trial court's ratiocination that private respondent could not have "fairly and freely" agreed to the
limited liability clause in the bill of lading because the said conditions were printed in small letters does
not make the bill of lading invalid.
We ruled in PAL, Inc. vs. Court of Appeals5 that the "jurisprudence on the matter reveals the consistent
holding of the court that contracts of adhesion are not invalid per se and that it has on numerous
occasions upheld the binding effect thereof." Also, in Philippine American General Insurance Co., Inc.
vs. Sweet Lines, Inc. 6 this Court, speaking through the learned Justice Florenz D. Regalado, held:

. . . Ong Yiu vs. Court of Appeals, et. al., instructs us that "contracts of
adhesion wherein one party imposes a ready-made form of contract on the other . . .
are contracts not entirely prohibited. The one who adheres to the contract is in reality
free to reject it entirely; if the adheres he gives his consent." In the present case, not
even an allegation of ignorance of a party excuses non-compliance with the contractual
stipulations since the responsibility for ensuring full comprehension of the provisions
of a contract of carriage devolves not on the carrier but on the owner, shipper, or
consignee as the case may be. (Emphasis supplied)

It was further explained in Ong Yiu vs. Court of Appeals 7 that stipulations in contracts of adhesion are
valid and binding.

While it may be true that petitioner had not signed the plane
ticket . . ., he is nevertheless bound by the provisions thereof. "Such provisions have
been held to be a part of the contract of carriage, and valid and binding upon the
passenger regardless of the latter's lack of knowledge or assent to the regulation." It is
what is known as a contract of "adhesion," in regards which it has been said that
contracts of adhesion wherein one party imposes a ready-made form of contract on the
other, as the plane ticket in the case at bar, are contracts not entirely prohibited. The
one who adheres to the contract is in reality free to reject it entirely; if he adheres, he
gives his consent. . . ., a contract limiting liability upon an agreed valuation does not
offend against the policy of the law forbidding one from contracting against his own
negligence. (Emphasis supplied)

Greater vigilance, however, is required of the courts when dealing with contracts of adhesion in that
the said contracts must be carefully scrutinized "in order to shield the unwary (or weaker party) from
deceptive schemes contained in ready-made covenants,"8 such as the bill of lading in question. The
stringent requirement which the courts are enjoined to observe is in recognition of Article 24 of the
Civil Code which mandates that "(i)n all contractual, property or other relations, when one of the parties
is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness,
tender age or other handicap, the courts must be vigilant for his protection."

The shipper, Maruman Trading, we assume, has been extensively engaged in the trading business. It
can not be said to be ignorant of the business transactions it entered into involving the shipment of its
goods to its customers. The shipper could not have known, or should know the stipulations in the bill
of lading and there it should have declared a higher valuation of the goods shipped. Moreover,
Maruman Trading has not been heard to complain that it has been deceived or rushed into agreeing to
ship the cargo in petitioner's vessel. In fact, it was not even impleaded in this case.

The next issue to be resolved is whether or not private respondent, as consignee, who is not a
signatory to the bill of lading is bound by the stipulations thereof.

Again, in Sea-Land Service, Inc. vs. Intermediate Appellate Court (supra), we held that even if the
consignee was not a signatory to the contract of carriage between the shipper and the carrier, the
consignee can still be bound by the contract. Speaking through Mr. Chief Justice Narvasa, we ruled:

To begin with, there is no question of the right, in principle, of a consignee in a bill of

lading to recover from the carrier or shipper for loss of, or damage to goods being
transported under said bill, although that document may have been-as in practice it
oftentimes is-drawn up only by the consignor and the carrier without the intervention of
the
onsignee. . . . .
 . . . the right of a party in the same situation as respondent here, to recover for loss of a
shipment consigned to him under a bill of lading drawn up only by and between the
shipper and the carrier, springs from either a relation of agency that may exist between
him and the shipper or consignor, or his status as stranger in whose favor some
stipulation is made in said contract, and who becomes a party thereto when he
demands fulfillment of that stipulation, in this case the delivery of the goods or cargo
shipped. In neither capacity can he assert personally, in bar to any provision of the bill
of lading, the alleged circumstance that fair and free agreement to such provision was
vitiated by its being in such fine print as to be hardly readable. Parenthetically, it may
be observed that in one comparatively recent case (Phoenix Assurance Company vs.
Macondray & Co., Inc., 64 SCRA 15) where this Court found that a similar package
limitation clause was "printed in the smallest type on the back of the bill of lading," it
nonetheless ruled that the consignee was bound thereby on the strength of authority
holding that such provisions on liability limitation are as much a part of a bill of lading
as through physically in it and as though placed therein by agreement of the parties.

There can, therefore, be no doubt or equivocation about the validity and enforceability
of freely-agreed-upon stipulations in a contract of carriage or bill of lading limiting the
liability of the carrier to an agreed valuation unless the shipper declares a higher value
and inserts it into said contract or bill. This proposition, moreover, rests upon an
almost uniform weight of authority. (Emphasis supplied).

When private respondent formally claimed reimbursement for the missing goods from petitioner and
subsequently filed a case against the latter based on the very same bill of lading, it (private
respondent) accepted the provisions of the contract and thereby made itself a party thereto, or at least
has come to court to enforce it.9 Thus, private respondent cannot now reject or disregard the carrier's
limited liability stipulation in the bill of lading. In other words, private respondent is bound by the whole
stipulations in the bill of lading and must respect the same.

Private respondent, however, insists that the carrier should be liable for the full value of the lost cargo
in the amount of Y1,552,500.00, considering that the shipper, Maruman Trading, had "fully declared the
shipment . . ., the contents of each crate, the dimensions, weight and value of the contents," 10 as
shown in the commercial Invoice No. MTM-941.

This claim was denied by petitioner, contending that it did not know of the contents, quantity and value
of "the shipment which consisted of three pre-packed crates described in Bill of Lading No. NGO-53MN
merely as '3 CASES SPARE PARTS.'" 11

The bill of lading in question confirms petitioner's contention. To defeat the carrier's limited liability,
the aforecited Clause 18 of the bill of lading requires that the shipper should have declared in writing a
higher valuation of its goods before receipt thereof by the carrier and insert the said declaration in the
bill of lading, with extra freight paid. These requirements in the bill of lading were never complied with
by the shipper, hence, the liability of the carrier under the limited liability clause stands. The
commercial Invoice No. MTM-941 does not in itself sufficiently and convincingly show that petitioner
has knowledge of the value of the cargo as contended by private respondent. No other evidence was
proffered by private respondent to support is contention. Thus, we are convinced that petitioner should
be liable for the full value of the lost cargo.

In fine, the liability of petitioner for the loss of the cargo is limited to One Hundred Thousand
(Y100,000.00) Yen, pursuant to Clause 18 of the bill of lading.

WHEREFORE, the decision of the Court of Appeals dated June 14, 1995 in C.A.-G.R. CV No. 42803 is
hereby REVERSED and SET ASIDE.

SO ORDERED.
Regalado, Melo, Puno and Mendoza, JJ., concur.

FACTS:

 Hernandez Trading Co., Inc. (Hernandez) imported 3 crates of bus spare

parts (MARCO C/No. 12, MARCO C/No. 13 and MARCO C/No. 14), from
Maruman Trading Company, Ltd. (Maruman), a foreign corporation based
in Japan.
 The crates (covered by Bill of Lading No. NGO53MN) were shipped on board
“ADELFAEVERETTE,” a vessel owned by Everett Orient Lines
 Upon arrival at the port of Manila, it was discovered that the crate marked
MARCO C/No. 14 was missing
 Hernandez made a formal claim for Y1,552,500.00, as shown in an
Invoice No. MTM-941, dated November 14, 1991
 Everett Streamship Corp. offered to pay only Y100,000.00 the maximum
amount stipulated under Clause 18 of the covering bill of lading
 Hernandez rejected the offer and thereafter instituted a suit for collection
 Trial Court: in favor of Hernandez
 CA: Affirmed but deleted the award of attorney’s fees
ISSUE:
1. W/N the limited liability clause in the Bill of Lading is valid
2. W/N Hernandez as consignee, who is not a signatory to the bill of lading
is bound by the stipulations thereof
HELD:

1. YES.
 A stipulation in the bill of lading limiting the common carrier’s liability for loss or
destruction of a cargo to a certain sum, unless the shipper or owner declares a greater value,
is sanctioned by law, particularly Articles 1749 and 1750 of the Civil Code which provide:

ART. 1749. A stipulation that the common carrier’s liability is limited to the value of the goods
appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding.

ART. 1750. A contract fixing the sum that may be recovered by the owner or shipper for the
loss, destruction, or deterioration of the goods is valid, if it is reasonable and just under the
circumstances, and has been freely and fairly agreed upon.
 Maruman Trading, had the option to declare a higher valuation if the value of its cargo was
higher than the limited liability of the carrier. Considering that the shipper did not declare a
higher valuation, it had itself to blame for not complying with the stipulations.
 The trial court’s ratiocination that private respondent could not have “fairly and freely”
agreed to the limited liability clause in the bill of lading because the said conditions were
printed in small letters does not make the bill of lading invalid.
 contracts of adhesion are valid and binding
 Greater vigilance, however, is required of the courts when dealing with
contracts of adhesion in that the said contracts must be carefully
scrutinized “in order to shield the unwary (or weaker party) from
deceptive schemes contained in ready-made covenant
 Article 24 of the Civil Code which mandates that “(i)n all contractual,
property or other relations, when one of the parties is at a disadvantage
on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for
his protection
 Maruman Trading, we assume, has been extensively engaged in the
trading business. It can not be said to be ignorant of the business
transactions it entered into involving the shipment of its goods to its
customers. The shipper could not have known, or should know the
stipulations in the bill of lading and there it should have declared a higher
valuation of the goods shipped. Moreover, Maruman Trading has not
been heard to complain that it has been deceived or rushed into agreeing
to ship the cargo in petitioner’s vessel. In fact, it was not even impleaded
in this case.
2. YES.
 the right of a party in the same situation as Hernandez, to recover for
loss of a shipment consigned to him under a bill of lading drawn up only
by and between the shipper and the carrier, springs from either a relation
of agency that may exist between him and the shipper or consignor, or
his status as stranger in whose favor some stipulation is made in said
contract, and who becomes a party thereto when he demands fulfillment
of that stipulation, in this case the delivery of the goods or cargo shipped
 When Hernandez formally claimed reimbursement for the missing goods
from Everett and subsequently filed a case against the it based on the
very same bill of lading, it accepted the provisions of the contract and
thereby made itself a party thereto, or at least has come to court to
enforce it.[
 The commercial Invoice No. MTM-941 does not in itself sufficiently and convincingly show
that Everett has knowledge of the value of the cargo as contended by Hernandez

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of
Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in
which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of
English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of
the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the
case.

The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will
or will not be erroneous according as said court has or has no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein
involved, committed aboard merchant vessels anchored in our jurisdiction waters. 1aw ph!l.net

There are two fundamental rules on this particular matter in connection with International Law; to wit, the
French rule, according to which crimes committed aboard a foreign merchant vessels should not be
prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their
commission affects the peace and security of the territory; and the English rule, based on the territorial
principle and followed in the United States, according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the country within territory they were committed. Of this
two rules, it is the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a
territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice
Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and
dangerous to society, and would subject the laws to continual infraction, and the government to
degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not
amenable to the jurisdiction of the country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas
or within the territorial waters of any other country, but when she came within three miles of a line drawn
from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a
new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils,
Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that
sovereignty through the proper political agency. . . .

It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the
Common Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship
or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those
which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions
 a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that
if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere
to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign
vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the
Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine
soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a
violation of the penal law in force at the place of the commission of the crime, no court other than that
established in the said place has jurisdiction of the offense, in the absence of an agreement under an
international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction
or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship
where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.,"
volume 1, page 625, Malloy says the following:

There shall be between the territories of the United States of America, and all the territories of His Britanic
Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively,
shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and
rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same,
and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses
and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each
nation respectively shall enjoy the most complete protection and security for their commerce, but subject
always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation
Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court
not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of
the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a
ship, without being used in our territory, does not being about in the said territory those effects that our
statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the
public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a
breach of the public order here established, because it causes such drug to produce its pernicious effects
within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the
aforesaid repressive statute. Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila
in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of
public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into
the port of Manila and allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for further
proceedings in accordance with law, without special findings as to costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur

Facts:
The appellant, in representation of the Attorney General, filed an appeal that urges the revocation of a
demurrer sustained by the Court of First Instance of Manila presented by the defendant. The defendant,
accused of having illegally smoked opium aboard the merchant vessel Changsa of English nationality while
the said vessel was anchored in Manila Bay, two and a half miles from the shores of the city. In the said
demurrer, the defendant contended the lack of jurisdiction of the lower court of the said crime, which resulted
to the dismissal of the case.

Issue:
Whether or not the Philippine courts have jurisdiction over the crime committed aboard merchant vessels
anchored in our jurisdictional waters.

Held:
Yes. The crime in the case at bar was committed in our internal waters thus the Philippine courts have a right
of jurisdiction over the said offense. The Court said that having the opium smoked within our territorial waters
even though aboard a foreign merchant ship is a breach of the public order because it causes such drugs to
produce pernicious effects within our territory. Therefore, the demurrer is revoked and the Court ordered
further proceedings.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 119571 March 11, 1998

MITSUI O.S.K. LINES LTD., represented by MAGSAYSAY AGENCIES, INC., petitioner,

vs.
COURT OF APPEALS and LAVINE LOUNGEWEAR MFG. CORP., respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the January 25, 1995 decision of the Court of Appeals1 and its
resolution of March 22, 1995 denying petitioner's motion for reconsideration. The appellate court upheld orders
of Branch 68 (Pasig) of the Regional Trial Court, National Capital Judicial Region, denying petitioner's motion
to dismiss in the original action filed against petitioner by private respondent.

The facts are not in dispute.2

Petitioner Mitsui O.S.K. Lines Ltd. is a foreign corporation represented in the Philippines by its agent,
Magsaysay Agencies. It entered into a contract of carriage through Meister Transport, Inc., an international
freight forwarder, with private respondent Lavine Loungewear Manufacturing Corporation to transport goods of
the latter from Manila to Le Havre, France. Petitioner undertook to deliver the goods to France 28 days from
initial loading. On July 24, 1991, petitioner's vessel loaded private respondent's container van for carriage at
the said port of origin.

However, in Kaoshiung, Taiwan the goods were not transshipped immediately, with the result that the shipment
arrived in Le Havre only on November 14, 1991. The consignee allegedly paid only half the value of the said
goods on the ground that they did not arrive in France until the "off season" in that country. The remaining half
was allegedly charged to the account of private respondent which in turn demanded payment from petitioner
through its agent.

As petitioner denied private respondent's claim, the latter filed a case in the Regional Trial Court on April 14,
1992. In the original complaint, private respondent impleaded as defendants Meister Transport, Inc. and
Magsaysay Agencies, Inc., the latter as agent of petitioner Mitsui O.S.K. Lines Ltd. On May 20, 1993, it
amended its complaint by impleading petitioner as defendant in lieu of its agent. The parties to the case thus
became private respondent as plaintiff, on one side, and Meister Transport Inc. and petitioner Mitsui O.S.K.
Lines Ltd. as represented by Magsaysay Agencies, Inc., as defendants on the other.

Petitioner filed a motion to dismiss alleging that the claim against it had prescribed under the Carriage of Goods
by Sea Act.

The Regional Trial Court, as aforesaid, denied petitioner's motion as well as its subsequent motion for
reconsideration. On petition for certiorari, the Court of Appeals sustained the trial court's orders. Hence this
petition containing one assignment of error:

THE RESPONDENT COURT OF APPEALS COMMITTED A SERIOUS ERROR OF LAW IN

RULING THAT PRIVATE RESPONDENT'S AMENDED COMPLAINT IS (sic) NOT
PRESCRIBED PURSUANT TO SECTION 3(6) OF THE CARRIAGE OF GOODS BY SEA
ACT.

The issue raised by the instant petition is whether private respondent's action is for "loss or damage" to goods
shipped, within the meaning of §3(6) of the Carriage of Goods by Sea Act (COGSA).

Section 3 provides:

(6) Unless notice of loss or damage and the general nature of such loss or damage be given
in writing to the carrier or his agent at the port of discharge or at the time of the removal of the
goods into the custody of the person entitled to delivery thereof under the contract of carriage,
such removal shall beprima facie evidence of the delivery by the carrier of the goods as
described in the bill of lading. If the loss or damage is not apparent, the notice must be given
within three days of the delivery.

Said notice of loss or damage may be endorsed upon the receipt for the goods given by the
person taking delivery thereof.

The notice in writing need not be given if the state of the goods has at the time of their receipt
been the subject of joint survey or inspection.

In any event the carrier and the ship shall be discharged from all liability in respect of loss or
damage unless suit is brought within one year after delivery of the goods or the date when the
goods should have been delivered: Provided, that, if a notice of loss or damage, either
apparent or concealed, is not given as provided for in this section, that fact shall not affect or
prejudice the right of the shipper to bring suit within one year after the delivery of the goods or
the date when the goods should have been delivered.

In the case of any actual or apprehended loss or damage, the carrier and the receiver shall
give all reasonable facilities to each other for inspecting and tallying the goods.
In Ang v. American Steamship Agencies, Inc., the question was whether an action for the value of goods which
had been delivered to a party other than the consignee is for "loss or damage" within the meaning of §3(6) of
the COGSA. It was held that there was no loss because the goods had simply been misdelivered. "Loss" refers
to the deterioration or disappearance of goods.3

As defined in the Civil Code and as applied to Section 3(6), paragraph 4 of the Carriage of
Goods by Sea Act, "loss" contemplates merely a situation where no delivery at all was made
by the shipper of the goods because the same had perished, gone out of commerce, or
disappeared in such a way that their existence is unknown or they cannot be recovered. 4

Conformably with this concept of what constitutes "loss" or "damage," this Court held in another case5 that the
deterioration of goods due to delay in their transportation constitutes "loss" or "damage" within the meaning of
§3(6), so that as suit was not brought within one year the action was barred:

Whatever damage or injury is suffered by the goods while in transit would result in loss or
damage to either the shipper or the consignee. As long as it is claimed, therefore, as it is done
here, that the losses or damages suffered by the shipper or consignee were due to the arrival
of the goods in damaged or deteriorated condition, the action is still basically one for damage
to the goods, and must be filed within the period of one year from delivery or receipt, under
the above-quoted provision of the Carriage of Goods by Sea Act.6

But the Court allowed that —

There would be some merit in appellant's insistence that the damages suffered by him as a
result of the delay in the shipment of his cargo are not covered by the prescriptive provision of
the Carriage of Goods by Sea Act above referred to, if such damages were due, not to the
deterioration and decay of the goods while in transit, but to other causes independent of the
condition of the cargo upon arrival, like a drop in their market value. . . .7

The rationale behind limiting the said definitions to such parameters is not hard to find or fathom. As this Court
held in Ang:

Said one-year period of limitation is designed to meet the exigencies of maritime hazards. In a
case where the goods shipped were neither lost nor damaged in transit but were, on the
contrary, delivered in port to someone who claimed to be entitled thereto, the situation is
different, and the special need for the short period of limitation in cases of loss or damage
caused by maritime perils does not obtain.8

In the case at bar, there is neither deterioration nor disappearance nor destruction of goods caused by the
carrier's breach of contract. Whatever reduction there may have been in the value of the goods is not due to
their deterioration or disappearance because they had been damaged in transit.

Petitioner contends:

Although we agree that there are places in the section (Article III) in which the phrase need
have no broader meaning than loss or physical damage to the goods, we disagree with the
conclusion that it must so be limited wherever it is used. We take it that the phrase has a
uniform meaning, not merely in Section 3, but throughout the Act; and there are a number of
places in which the restricted interpretation suggested would be inappropriate. For example
Section 4(2) [Article IV(2) (sic) exempts exempts (sic) the carrier, the ship (sic), from liability
"loss or damage" (sic) resulting from certain courses beyond their control.9

Indeed, what is in issue in this petition is not the liability of petitioner for its handling of goods as
provided by §3(6) of the COGSA, but its liability under its contract of carriage with private respondent
as covered by laws of more general application.
Precisely, the question before the trial court is not the particular sense of "damages" as it refers to the physical
loss or damage of a shipper's goods as specifically covered by §3(6) of COGSA but petitioner's potential
liability for the damages it has caused in the general sense and, as such, the matter is governed by the Civil
Code, the Code of Commerce and COGSA, for the breach of its contract of carriage with private respondent.

We conclude by holding that as the suit below is not for "loss or damage" to goods contemplated in §3(6), the
question of prescription of action is governed not by the COGSA but by Art. 1144 of the Civil Code which
provides for a prescriptive period of ten years.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Regalado, Melo, Puno and Martinez, JJ., concur.

MITSUI VS. CA, 287 SCRA 366

MENDOZA, J.:

Facts:

Petitioner Mitsui O.S.K. Lines Ltd. is a foreign corporation represented in the

Philippines by its agent, Magsaysay Agencies. It entered into a contract of carriage
through Meister Transport, Inc., an international freight forwarder, with private
respondent Lavine Loungewear Manufacturing Corporation to transport goods of the
latter from Manila to Le Havre, France. Petitioner undertook to deliver the goods to
France 28 days from initial loading. On July 24, 1991, petitioner's vessel loaded
private respondent's container van for carriage at the said port of origin.

However, in Kaoshiung, Taiwan the goods were not transshipped immediately, with
the result that the shipment arrived in Le Havre only on November 14, 1991. The
consignee allegedly paid only half the value of the said goods on the ground that
they did not arrive in France until the "off season" in that country. The remaining
half was allegedly charged to the account of private respondent which in turn
demanded payment from petitioner through its agent.

Issue:

Whether or not private respondent's action is for "loss or damage" to goods

shipped, within the meaning of the Carriage of Goods by Sea Act (COGSA).

Ruling:

No. The suit is not for "loss or damage" to goods contemplated in §3(6), the
question of prescription of action is governed not by the COGSA but by Art. 1144 of
the Civil Code which provides for a prescriptive period of ten years. As defined in
the Civil Code and as applied to Section 3(6), paragraph 4 of the Carriage of Goods
by Sea Act, "loss" contemplates merely a situation where no delivery at all was
made by the shipper of the goods because the same had perished, gone out of
commerce, or disappeared in such a way that their existence is unknown or they
cannot be recovered.

There would be some merit in appellant's insistence that the damages suffered by
him as a result of the delay in the shipment of his cargo are not covered by the
prescriptive provision of the Carriage of Goods by Sea Act above referred to, if such
damages were due, not to the deterioration and decay of the goods while in transit,
but to other causes independent of the condition of the cargo upon arrival, like a
drop in their market value.

SECOND DIVISION

[G.R. No. 119602. October 6, 2000]

WILDVALLEY SHIPPING CO., LTD. petitioner, vs. COURT OF APPEALS

and PHILIPPINE PRESIDENT LINES INC., respondents.

DECISION
BUENA, J.:

This is a petition for review on certiorari seeking to set aside the decision of the Court of
Appeals which reversed the decision of the lower court in CA-G.R. CV No. 36821, entitled
"Wildvalley Shipping Co., Ltd., plaintiff-appellant, versus Philippine President Lines, Inc.,
defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President
Lines, Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon
the completion of the loading and when the vessel was ready to leave port, Mr. Ezzar del Valle
Solarzano Vasquez, an official pilot of Venezuela, was designated by the harbour authorities in
Puerto Ordaz to navigate the Philippine Roxas through the Orinoco River.[1] He was asked to
pilot the said vessel on February 11, 1988[2] boarding it that night at 11:00 p.m.[3]
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge
together with the pilot (Vasquez), the vessel's third mate (then the officer on watch), and a
helmsman when the vessel left the port[4] at 1:40 a.m. on February 12, 1988.[5] Captain Colon left
the bridge when the vessel was under way.[6]
The Philippine Roxas experienced some vibrations when it entered the San Roque Channel
at mile 172.[7] The vessel proceeded on its way, with the pilot assuring the watch officer that the
vibration was a result of the shallowness of the channel.[8]
 Between mile 158 and 157, the vessel again experienced some vibrations.[9] These occurred
at 4:12 a.m.[10] It was then that the watch officer called the master to the bridge.[11]
The master (captain) checked the position of the vessel[12] and verified that it was in the
centre of the channel.[13] He then went to confirm, or set down, the position of the vessel on the
chart.[14] He ordered Simplicio A. Monis, Chief Officer of the President Roxas, to check all the
double bottom tanks.[15]
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,[16] thus
obstructing the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner Wildvalley
Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court
of Manila, Branch III against Philippine President Lines, Inc. and Pioneer Insurance Company
(the underwriter/insurer of Philippine Roxas) for damages in the form of unearned profits, and
interest thereon amounting to US $400,000.00 plus attorney's fees, costs, and expenses of
litigation. The complaint against Pioneer Insurance Company was dismissed in an Order dated
November 7, 1988.[17]
At the pre-trial conference, the parties agreed on the following facts:

"1. The jurisdictional facts, as specified in their respective pleadings;

"2. That defendant PPL was the owner of the vessel Philippine Roxas at the
time of the incident;

"3. That defendant Pioneer Insurance was the insurance underwriter for
defendant PPL;

"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel
Malandrinon, whose passage was obstructed by the vessel Philippine Roxas at Puerto
Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint;

"5. That on February 12, 1988, while the Philippine Roxas was navigating the
channel at Puerto Ordaz, the said vessel grounded and as a result, obstructed
navigation at the channel;

"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;

"7. That at the time of the incident, the vessel, Philippine Roxas, was under the
command of the pilot Ezzar Solarzano, assigned by the government thereat, but
plaintiff claims that it is under the command of the master;

"8. The plaintiff filed a case in Middleburg, Holland which is related to the
present case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by
the defendant PPL;

"10. The Orinoco River is 150 miles long and it takes approximately 12 hours
to navigate out of the said river;

"11. That no security for the plaintiff's claim was given until after the
Philippine Collier was arrested; and

"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship
Mutual Underwriters Ltd."[18]

The trial court rendered its decision on October 16, 1991 in favor of the petitioner,
Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads as follows:

"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine

President Lines, Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and
compensatory damages, and U.S. $162,031.53, as expenses incurred abroad for its
foreign lawyers, plus additional sum of U.S. $22,000.00, as and for attorney's fees of
plaintiff's local lawyer, and to pay the cost of this suit.

"Defendant's counterclaim is dismissed for lack of merit.

"SO ORDERED."[19]

Both parties appealed: the petitioner appealing the non-award of interest with the private
respondent questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its
questioned decision dated June 14, 1994,[20] the dispositive portion of which reads as follows:

"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is

hereby rendered reversing the Decision of the lower court. Plaintiff-appellant's
Complaint is dismissed and it is ordered to pay defendant-appellant the amount of
Three Hundred Twenty-three Thousand, Forty-two Pesos and Fifty-three Centavos
(P323,042.53) as and for attorney's fees plus cost of suit. Plaintiff-appellant's appeal
is DISMISSED.

"SO ORDERED."[21]

Petitioner filed a motion for reconsideration[22] but the same was denied for lack of merit in the
resolution dated March 29, 1995.[23]

Hence, this petition.

 The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED TO
THE MASTER NOR THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE
GROUNDING OF SAID VESSEL RESULTING IN THE BLOCKAGE OF THE RIO
ORINOCO;
2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE
FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE
"PHILIPPINE ROXAS" IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING
VENEZUELAN LAW DESPITE THE FACT THAT THE SAME HAS BEEN
SUBSTANTIALLY PROVED IN THE TRIAL COURT WITHOUT ANY OBJECTION
FROM PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS INTERPOSED
BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING
ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT ANY FAIR
OR REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT
PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER SHOULD BE
ENTITLED TO ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is applicable to the
case at bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts
are not authorized to take judicial notice of them. Like any other fact, they must be alleged and
proved.[24]
A distinction is to be made as to the manner of proving a written and an unwritten law. The
former falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire provision
of which is quoted hereunder. Where the foreign law sought to be proved is "unwritten," the oral
testimony of expert witnesses is admissible, as are printed and published books of reports of
decisions of the courts of the country concerned if proved to be commonly admitted in such
courts.[25]
Section 24 of Rule 132 of the Rules of Court, as amended, provides:

"Sec. 24. Proof of official record. -- The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office."
(Underscoring supplied)

The court has interpreted Section 25 (now Section 24) to include competent evidence like
the testimony of a witness to prove the existence of a written foreign law.[26]
In the noted case of Willamette Iron & Steel Works vs. Muzzal,[27] it was held that:

"… Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the
year 1918 under oath, quoted verbatim section 322 of the California Civil Code and
stated that said section was in force at the time the obligations of defendant to the
plaintiff were incurred, i.e. on November 5, 1928 and December 22, 1928. This
evidence sufficiently established the fact that the section in question was the law of
the State of California on the above dates. A reading of sections 300 and 301 of our
Code of Civil Procedure will convince one that these sections do not exclude the
presentation of other competent evidence to prove the existence of a foreign law.

"`The foreign law is a matter of fact …You ask the witness what the law is; he may,
from his recollection, or on producing and referring to books, say what it is.' (Lord
Campbell concurring in an opinion of Lord Chief Justice Denman in a well-known
English case where a witness was called upon to prove the Roman laws of marriage
and was permitted to testify, though he referred to a book containing the decrees of
the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4,
pages 3148-3152.) x x x.”

We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor
Master and Chief of Pilots at Puerto Ordaz, Venezuela,[28] to testify on the existence of
the Reglamento General de la Ley de Pilotaje (pilotage law of Venezuela)[29] and the Reglamento
Para la Zona de Pilotaje No 1 del Orinoco (rules governing the navigation of the Orinoco
River). Captain Monzon has held the aforementioned posts for eight years.[30] As such he is in
charge of designating the pilots for maneuvering and navigating the Orinoco River. He is also in
charge of the documents that come into the office of the harbour masters.[31]
Nevertheless, we take note that these written laws were not proven in the manner provided
by Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial[32]of the
Republic of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an
official publication of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by
the Ministerio de Comunicaciones of Venezuela.[33] Only a photocopy of the said rules was
likewise presented as evidence.
 Both of these documents are considered in Philippine jurisprudence to be public documents
for they are the written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers of Venezuela.[34]
For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) It must be attested by the officer having legal custody of the records or by his
deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy or legation,
consul general, consul, vice consular or consular agent or foreign service officer, and with the
seal of his office.[35] The latter requirement is not a mere technicality but is intended to justify the
giving of full faith and credit to the genuineness of a document in a foreign country.[36]
It is not enough that the Gaceta Oficial, or a book published by the Ministerio de
Comunicaciones of Venezuela, was presented as evidence with Captain Monzon attesting it. It is
also required by Section 24 of Rule 132 of the Rules of Court that a certificate that Captain
Monzon, who attested the documents, is the officer who had legal custody of those records made
by a secretary of the embassy or legation, consul general, consul, vice consul or consular agent
or by any officer in the foreign service of the Philippines stationed in Venezuela, and
authenticated by the seal of his office accompanying the copy of the public document. No such
certificate could be found in the records of the case.
With respect to proof of written laws, parol proof is objectionable, for the written law itself
is the best evidence. According to the weight of authority, when a foreign statute is involved, the
best evidence rule requires that it be proved by a duly authenticated copy of the statute.[37]
At this juncture, we have to point out that the Venezuelan law was not pleaded before the
lower court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about the
existence of the foreign law, its import and legal consequence on the event or transaction in
issue.[38]
A review of the Complaint[39] revealed that it was never alleged or invoked despite the fact
that the grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of
Venezuela.
We reiterate that under the rules of private international law, a foreign law must be properly
pleaded and proved as a fact. In the absence of pleading and proof, the laws of a foreign country,
or state, will be presumed to be the same as our own local or domestic law and this is known as
processual presumption.[40]
Having cleared this point, we now proceed to a thorough study of the errors assigned by the
petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that would
warrant the award of damages.
There being no contractual obligation, the private respondent is obliged to give only the
diligence required of a good father of a family in accordance with the provisions of Article 1173
of the New Civil Code, thus:
“Art. 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.

“If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.”

The diligence of a good father of a family requires only that diligence which an ordinary
prudent man would exercise with regard to his own property. This we have found private
respondent to have exercised when the vessel sailed only after the "main engine, machineries,
and other auxiliaries" were checked and found to be in good running condition;[41] when the
master left a competent officer, the officer on watch on the bridge with a pilot who is
experienced in navigating the Orinoco River; when the master ordered the inspection of the
vessel's double bottom tanks when the vibrations occurred anew.[42]
The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative
Order No. 03-85, otherwise known as the Rules and Regulations Governing Pilotage Services,
the Conduct of Pilots and Pilotage Fees in Philippine Ports enunciate the duties and
responsibilities of a master of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these persons are quoted
hereunder:

“Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage
grounds, the Harbor Pilot providing the service to a vessel shall be responsible for the
damage caused to a vessel or to life and property at ports due to his negligence or
fault. He can be absolved from liability if the accident is caused by force majeure or
natural calamities provided he has exercised prudence and extra diligence to prevent
or minimize the damage.

“The Master shall retain overall command of the vessel even on pilotage grounds
whereby he can countermand or overrule the order or command of the Harbor Pilot on
board. In such event, any damage caused to a vessel or to life and property at ports by
reason of the fault or negligence of the Master shall be the responsibility and liability
of the registered owner of the vessel concerned without prejudice to recourse against
said Master.

“Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and
circumstances of each particular case.

“x x x
“Sec. 32. Duties and Responsibilities of the Pilots or Pilots’ Association. -- The
duties and responsibilities of the Harbor Pilot shall be as follows:

“x x x

“f) A pilot shall be held responsible for the direction of a vessel from the time he
assumes his work as a pilot thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order."

The Code of Commerce likewise provides for the obligations expected of a captain of a
vessel, to wit:

“Art. 612. The following obligations shall be inherent in the office of captain:

“x x x

"7. To be on deck on reaching land and to take command on entering and leaving
ports, canals, roadsteads, and rivers, unless there is a pilot on board discharging his
duties. x x x.”

The law is very explicit. The master remains the overall commander of the vessel even
when there is a pilot on board. He remains in control of the ship as he can still perform the
duties conferred upon him by law[43] despite the presence of a pilot who is temporarily in charge
of the vessel. It is not required of him to be on the bridge while the vessel is being navigated by
a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:

“Sec. 8. Compulsory Pilotage Service – For entering a harbor and anchoring thereat,
or passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under compulsory pilotage.

“xxx.”
The Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot
who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the
river. In his deposition, pilot Ezzar Solarzano Vasquez testified that he is an official pilot in the
Harbour at Port Ordaz, Venezuela,[44] and that he had been a pilot for twelve (12) years.[45] He
also had experience in navigating the waters of the Orinoco River.[46]
The law does provide that the master can countermand or overrule the order or command of
the harbor pilot on board. The master of the Philippine Roxas deemed it best not to order him
(the pilot) to stop the vessel,[47] mayhap, because the latter had assured him that they were
navigating normally before the grounding of the vessel.[48] Moreover, the pilot had admitted that
on account of his experience he was very familiar with the configuration of the river as well as
the course headings, and that he does not even refer to river charts when navigating the Orinoco
River.[49]
Based on these declarations, it comes as no surprise to us that the master chose not to regain
control of the ship. Admitting his limited knowledge of the Orinoco River, Captain Colon relied
on the knowledge and experience of pilot Vasquez to guide the vessel safely.

“Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different

class from ordinary employees, for they assume to have a skill and a knowledge of
navigation in the particular waters over which their licenses extend superior to that of
the master; pilots are bound to use due diligence and reasonable care and skill. A
pilot's ordinary skill is in proportion to the pilot's responsibilities, and implies a
knowledge and observance of the usual rules of navigation, acquaintance with the
waters piloted in their ordinary condition, and nautical skill in avoiding all known
obstructions. The character of the skill and knowledge required of a pilot in charge of
a vessel on the rivers of a country is very different from that which enables a
navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of the rules
of navigation, with charts that disclose the places of hidden rocks, dangerous shores,
or other dangers of the way, are the main elements of a pilot's knowledge and
skill. But the pilot of a river vessel, like the harbor pilot, is selected for the
individual's personal knowledge of the topography through which the vessel is
steered."[50]

We find that the grounding of the vessel is attributable to the pilot. When the vibrations
were first felt the watch officer asked him what was going on, and pilot Vasquez replied that
"(they) were in the middle of the channel and that the vibration was as (sic) a result of the
shallowness of the channel."[51]
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well as
other vessels on the Orinoco River due to his knowledge of the same. In his experience as a
pilot, he should have been aware of the portions which are shallow and which are not. His
failure to determine the depth of the said river and his decision to plod on his set course, in all
probability, caused damage to the vessel. Thus, we hold him as negligent and liable for its
grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie Generale
Transatlantique, 182 U.S. 406, it was held that:

“x x x The master of a ship, and the owner also, is liable for any injury done by the
negligence of the crew employed in the ship. The same doctrine will apply to the case
of a pilot employed by the master or owner, by whose negligence any injury happens
to a third person or his property: as, for example, by a collision with another ship,
occasioned by his negligence. And it will make no difference in the case that the
pilot, if any is employed, is required to be a licensed pilot; provided the master is at
liberty to take a pilot, or not, at his pleasure, for in such a case the master acts
voluntarily, although he is necessarily required to select from a particular class. On
the other hand, if it is compulsive upon the master to take a pilot, and, a fortiori, if
he is bound to do so under penalty, then, and in such case, neither he nor the
owner will be liable for injuries occasioned by the negligence of the pilot; for in
such a case the pilot cannot be deemed properly the servant of the master or the
owner, but is forced upon them, and the maxim Qui facit per alium facit per se does
not apply." (Underscoring supplied)

Anent the river passage plan, we find that, while there was none,[52] the voyage has been
sufficiently planned and monitored as shown by the following actions undertaken by the pilot, Ezzar Solarzano
Vasquez, to wit: contacting the radio marina via VHF for information regarding the channel, river
traffic,[53] soundings of the river, depth of the river, bulletin on the buoys. [54] The officer on watch also monitored the
voyage.[55]

We, therefore, do not find the absence of a river passage plan to be the cause for the
grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the circumstances
surrounding the injury do not clearly indicate negligence on the part of the private
respondent. For the said doctrine to apply, the following conditions must be met: (1) the
accident was of such character as to warrant an inference that it would not have happened except
for defendant's negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged with the
negligence complained of; and (3) the accident must not have been due to any voluntary action
or contribution on the part of the person injured.[56]
As has already been held above, there was a temporary shift of control over the ship from
the master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of the
requisites necessary for the doctrine to apply, i.e., negligence and control, to render the
respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyd’s Register of Shipping confirmed the vessel’s seaworthiness in a Confirmation of
Class issued on February 16, 1988 by finding that "the above named ship (Philippine Roxas)
maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2 and 8 Holds may be empty
(CC) and +LMC" from 31/12/87 up until the time of casualty on or about 12/2/88."[57] The same
would not have been issued had not the vessel been built according to the standards set by
Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the seaworthiness
of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the vessel, wherein
recommendations were made on the top side tank, and it was given sufficient time to be repaired,
it means that the vessel is fit to travel even with those defects on the ship.
"COURT
 What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that
what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third party looking into the
condition of the vessel and as far as their record states, the vessel was class or maintained, and
she is fit to travel during that voyage."
“x x x
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable of
carrying ore bulk cargoes, but she is particularly capable of carrying Ore Cargoes with No. 2 and
No. 8 holds empty.
“x x x
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."[58]
It is not required that the vessel must be perfect. To be seaworthy, a ship must be
reasonably fit to perform the services, and to encounter the ordinary perils of the voyage,
contemplated by the parties to the policy.[59]
As further evidence that the vessel was seaworthy, we quote the deposition of pilot Vasquez:
"Q Was there any instance when your orders or directions were not complied with because of the
inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally.”[60]
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report
wherein he stated that on February 11, 1988, he checked and prepared the main engine,
machineries and all other auxiliaries and found them all to be in good running condition and
ready for maneuvering. That same day the main engine, bridge and engine telegraph and
steering gear motor were also tested.[61] Engineer Mata also prepared the fuel for consumption for
maneuvering and checked the engine generators.[62]
Finally, we find the award of attorney’s fee justified.
Article 2208 of the New Civil Code provides that:

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:
 “x x x

"(11) In any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered.

“x x x”
Due to the unfounded filing of this case, the private respondent was unjustifiably forced to
litigate, thus the award of attorney’s fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the
decision of the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and De leon, Jr., JJ., concur.

Facts: Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President Lines, Inc.,
private respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon the completion of
the loading and when the vessel was ready to leave port, Mr. Ezzar del Valle Solarzano Vasquez, an official
pilot of Venezuela, was designated by the harbour authorities in Puerto Ordaz to navigate the Philippine
Roxas through the Orinoco River. He was asked to pilot the said vessel on February 11, 1988 boarding it
that night at 11:00 p.m. The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the
bridge together with the pilot (Vasquez), the vessel’s third mate (then the officer on watch), and a
helmsman when the vessel left the port at 1:40 a.m. on February 12, 1988. Captain Colon left the bridge
when the vessel was under way. The Philippine Roxas experienced some vibrations when it entered the
San Roque Channel at mile 172. The vessel proceeded on its way, with the pilot assuring the watch officer
that the vibration was a result of the shallowness of the channel. Between mile 158 and 157, the vessel
again experienced some vibrations.These occurred at 4:12 a.m.It was then that the watch officer called the
master to the bridge. The master (captain) checked the position of the vessel and verified that it was in the
centre of the channel. He then went to confirm, or set down, the position of the vessel on the chart. He
ordered Simplicio A. Monis, Chief Officer of the President Roxas, to check all the double bottom tanks. At
around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,thus obstructing the ingress and
egress of vessels. As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner
Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day. Subsequently,
Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court of Manila, Branch III against
Philippine President Lines, Inc. and Pioneer Insurance Company (the underwriter/insurer of Philippine
Roxas) for damages in the form of unearned profits, and interest thereon amounting to US $400,000.00
plus attorney’s fees, costs, and expenses of litigation.

Issue: Whether or not the Venezuelan law should be applied.

Held: No. It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.

Nevertheless, we take note that these written laws were not proven in the manner provided by Section 24
of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial of the Republic of
Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an official publication of the
Republic of Venezuela.

The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by the Ministerio
de Comunicaciones of Venezuela. Only a photocopy of the said rules was likewise presented as evidence.

Both of these documents are considered in Philippine jurisprudence to be public documents for they are
the written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers of Venezuela.

For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) It
must be attested by the officer having legal custody of the records or by his deputy; and (2) It must be
accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice
consular or consular agent or foreign service officer, and with the seal of his office. The latter requirement
is not a mere technicality but is intended to justify the giving of full faith and credit to the genuineness of
a document in a foreign country.

It is not enough that the Gaceta Oficial, or a book published by the Ministerio de Comunicaciones of
Venezuela, was presented as evidence with Captain Monzon attesting it. It is also required by Section 24
of Rule 132 of the Rules of Court that a certificate that Captain Monzon, who attested the documents, is
the officer who had legal custody of those records made by a secretary of the embassy or legation, consul
general, consul, vice consul or consular agent or by any officer in the foreign service of the Philippines
stationed in Venezuela, and authenticated by the seal of his office accompanying the copy of the public
document. No such certificate could be found in the records of the case. With respect to proof of written
laws, parol proof is objectionable, for the written law itself is the best evidence. According to the weight of
authority, when a foreign statute is involved, the best evidence rule requires that it be proved by a duly
authenticated copy of the statute.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati,
Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in
Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-
183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991
Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in
the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila and registered
in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108
and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers.
Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of
the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the
parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and specific performance and damages
against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A.
Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed
to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to
sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to
Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to private respondent and
informed the sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that
the sellers fulfill their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots, proposing instead either that private respondent
undertake the eviction or that the earnest money be returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction of the squatters, the purchase price of the lots should be
reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it seven days from receipt of the letter to pay the original
purchase price in cash; (8) private respondent sent the earnest money back to the sellers, but later discovered
that on March 30, 1989, petitioner and the PRC, without notice to private respondent, sold the lots to
Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D;
and that the sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the
name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched itself at
the expense of private respondent; (10) private respondent demanded the rescission of the sale to Tropicana
and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to comply with the
terms of the contract to sell and has actually made plans to develop the lots into a townhouse project, but in
view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on
the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition
to the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after
finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question"
(Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner
prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based.
Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration
until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner,
and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to
arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective
memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule
65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss.
The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing before the trial court. But the
general rule admits of exceptions, and one of these is when it is very clear in the records that the trial court has
no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time
and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination
as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit,
he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect
instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of
Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy
asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of
the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor
General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this
Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion
cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and
make their own determination as to the nature of the acts and transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is
not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered
into a commercial transaction for the sale of a parcel of land located in the Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in
order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See,
was considered a subject of International Law. With the loss of the Papal States and the limitation of the
territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became
controversial (Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion
and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to
receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to
International Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the
Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons
— the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty"
must be made in a sense different from that in which it is applied to other states (Fenwick, International Law
124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite
its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head
of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such
as to make it in a sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law
160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is
possible for any entity pursuing objects essentially different from those pursued by states to be invested with
international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not
in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the
international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government
since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence of our admission in the society of
nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International
Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act
may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as "either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that the "commercial character of the activity
shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather
than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is
an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial activities
remotely connected with the discharge of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84
Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees
(Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties
as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and
(2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v.
Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public
is undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States government impliedly
divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity
that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said
claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not
for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna
Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and
entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied
and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by
private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this
case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs.
As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987,
Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of government
that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is
conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the government in conducting the country's
foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we abide by the certification of the Department of
Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal
on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants
Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919
[1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights —
its right to ensure, in the person of its subjects, respect for the rules of international law (The
Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.
Padilla, J., took no part.

Feliciano, J., is on leave.

FACTS: Petition arose from a controversy over a parcel of land. Lot 5-A, registered under the
name Holy See, was contiguous to Lot 5-B and 5-D under the name of Philippine Realty
Corporation (PRC). The land was donated by the Archdiocese of Manila to the Papal Nuncio,
which represents the Holy See, who exercises sovereignty over the Vatican City, Rome, Italy, for
his residence.

Said lots were sold through an agent to Ramon Licup who assigned his rights to respondents
Starbright Sales Enterprises, Inc.

When the squatters refuse to vacate the lots, a dispute arose between the two parties because both
were unsure whose responsibility was it to evict the squatters from said lots. Respondent
Starbright Sales Enterprises Inc. insists that Holy See should clear the property while Holy See
says that respondent corporation should do it or the earnest money will be returned. With this,
Msgr. Cirilios, the agent, subsequently returned the P100,000 earnest money.

The same lots were then sold to Tropicana Properties and Development Corporation.

Starbright Sales Enterprises, Inc. filed a suit for annulment of the sale, specific performance and
damages against Msgr. Cirilios, PRC as well as Tropicana Properties and Development
Corporation. The Holy See and Msgr. Cirilos moved to dismiss the petition for lack of
jurisdiction based on sovereign immunity from suit. RTC denied the motion on ground that
petitioner already "shed off" its sovereign immunity by entering into a business contract. The
subsequent Motion for Reconsideration was also denied hence this special civil action for
certiorari was forwarded to the Supreme Court.

ISSUE: Whether or not Holy See can invoke sovereign immunity.

HELD: The Court held that Holy See may properly invoke sovereign immunity for its non-
suability. As expressed in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of
International Law are adopted by our Courts and thus shall form part of the laws of the land as a
condition and consequence of our admission in the society of nations.

It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that
diplomatic envoy shall be granted immunity from civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable property. The Department of
Foreign Affairs (DFA) certified that the Embassy of the Holy See is a duly accredited diplomatic
missionary to the Republic of the Philippines and is thus exempted from local jurisdiction and is
entitled to the immunity rights of a diplomatic mission or embassy in this Court.

Furthermore, it shall be understood that in the case at bar, the petitioner has bought and sold
lands in the ordinary course of real estate business, surely, the said transaction can be categorized
as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent
disposal of the lot were made for profit but claimed that it acquired said property for the site of
its mission or the Apostolic Nunciature in the Philippines.

The Holy See is immune from suit because the act of selling the lot of concern is non-propriety
in nature. The lot was acquired through a donation from the Archdiocese of Manila, not for a
commercial purpose, but for the use of petitioner to construct the official place of residence of
the Papal Nuncio thereof. The transfer of the property and its subsequent disposal are likewise
clothed with a governmental (non-proprietal) character as petitioner sold the lot not for profit or
gain rather because it merely cannot evict the squatters living in said property.

In view of the foregoing, the petition is hereby GRANTED and the complaints were dismissed
accordingly.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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 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.

From the foregoing, respondent's defense of an honest mistake or misinterpretation,

therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the
case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is
misplaced. The case only applies to the "inconsequential deviations which cannot affect the
result of the election, or deviations from provisions intended primarily to secure timely and
orderly conduct of elections." The Supreme Court in that case considered the amendment
only as a matter of form. But in the instant case, the amendment cannot be considered as a
matter of form or an inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a substantial matter which
determines her qualification as a candidacy, specially those intended to suppress, accurate
material representation in the original certificate which adversely affects the filer. To admit the
amended certificate is to condone the evils brought by the shifting minds of manipulating
candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order
to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7 months residency the respondent
indicated in her certificate of candidacy can be gleaned from her entry in her Voter's
Registration Record accomplished on January 28, 1995 which reflects that she is a resident of
Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition).
Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro
Manila, dated August 24, 1994, requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot,
Tolosa, Leyte. The dates of these three (3) different documents show the respondent's
consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro
Manila 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.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent
has not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with
"domicile" which imports not only the 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. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-
Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in
1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus,
her animus revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since
childhood is nothing more than to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the
respondent in her affidavit. Except for the time that she studied and worked for some years
after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband
was elected Senator, she lived and resided in San Juan, Metro Manila where she was a
registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered
voter. In 1978, she served as member of the Batasang Pambansa as the representative of the
City of Manila and later on served as the Governor of Metro Manila. She could not have
served these positions if she had not been a resident of the City of Manila. Furthermore, when
she filed her certificate of candidacy for the office of the President in 1992, she claimed to be
a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent
wrote a letter with the election officer of San Juan, Metro Manila requesting for the
cancellation of her registration in the permanent list of voters that she may be re-registered or
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 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.

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
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 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 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 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 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 Viña 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 Viña,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 Malacañang 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 1917 15 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 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
supplied)

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);

(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives 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
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. Niño 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
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 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 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 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 child 21 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 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.

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:

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) 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 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.

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 Manila. In 1992 respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident
and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter
with the election officer of San Juan, Metro Manila, requesting for 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. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous 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).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor,
Leyte, a Certificate of Candidacy for the position of Representative of the First District of Leyte
wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/

Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa,

Leyte

Post Office Address for election purposes: Brgy. Olot,

Tolosa, Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN I

SEEK TO BE ELECTED IMMEDIATELY PRECEDING
ELECTION: ________ Years SevenMonths

10. I AM NOT A PERMANENT RESIDENT OF, OR

IMMIGRANT TO, A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.

(Sgd.) Imelda
Romualdez-Marcos
(Signature of Candidate)2

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)

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.

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:

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 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 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 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 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 Viña 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 Viña,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 Malacañang 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 1917 15 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 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
supplied)
 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);

(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives 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
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. Niño 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
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 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 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 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 child 21 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 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.

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:

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) 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 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.

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 Manila. In 1992 respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident
and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter
with the election officer of San Juan, Metro Manila, requesting for 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. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous 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).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor,
Leyte, a Certificate of Candidacy for the position of Representative of the First District of Leyte
wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/

Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa,

Leyte

Post Office Address for election purposes: Brgy. Olot,

Tolosa, Leyte
 9. RESIDENCE IN THE CONSTITUENCY WHEREIN I
SEEK TO BE ELECTED IMMEDIATELY PRECEDING
ELECTION: ________ Years SevenMonths

10. I AM NOT A PERMANENT RESIDENT OF, OR

IMMIGRANT TO, A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.

(Sgd.) Imelda
Romualdez-Marcos
(Signature of Candidate)2

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)

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.

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:

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 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 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 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 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.

Facts:
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the
position of Representative of the First District of Leyte in 1995, providing that her
residence in the place was seven (7) months.

On March 23, 1995, Cirilo Roy Montejo, the incumbent Representative of the First
District of Leyte and also a candidate for the same position filed a petition for
cancellation and disqualification with the COMELEC charging Marcos as she did not
comply with the constitutional requirement for residency as she lacked the
Constitution’s one-year residency requirement for candidates for the House of
Representative.

In her Amended Corrected Certificate of Candidacy, the petitioner changed seven

months to since childhood under residency. Thus, the petitioner’s motion for
reconsideration was denied.
On May 11, 1995, the COMELEC issued a Resolution allowing petitioner’s
proclamation showing that she obtained the highest number of votes in the
congressional elections in the First District of Leyte. 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.

In a Supplemental Petition dated 25 May 1995, Marcos claimed that she was the
overwhelming winner of the elections based on the canvass completed by the
Provincial Board of Canvassers.

Issue:
Whether or not Imelda Marcos was a resident of the First District of Leyte to satisfy
the one year residency requirement to be eligible in running as representative.

Held:
Yes. The court is in favor of a conclusion supporting petitioner’s claim of legal
residence or domicile in the First District of Leyte.

Residence is synonymous with domicile which reveals a tendency or mistake the

concept of domicile for actual residence, a conception not intended for the purpose
of determining a candidate’s qualifications for the election to the House of
Representatives as required by the 1987 Constitution.

An individual does not lose her domicile even if she has lived and maintained
residences in different places. In the case at bench, the evidence adduced by
Motejo lacks the degree of persuasiveness as required to convince the court that an
abandonment of domicile of origin in favor of a domicile of choice indeed incurred. It
cannot be correctly argued that Marcos lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos.

It can be concluded that the facts 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.

Having determined that Marcos possessed 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, May11, and May 25 are
set aside. Provincial Board of Canvassers is directed to proclaim Marcos as the duly
elected Representative of the First District of Leyte.
 Republic of the Philippines
SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 124110 April 20, 2001

UNITED AIRLINES, INC., Petitioner

vs.
COURT OF APPEALS, ANICETO FONTANILLA, in his personal capacity and in behalf of his minor
son MYCHAL ANDREW FONTANILLA, Respondents.

KAPUNAN, J.:

On March 1, 1989, private respondent Aniceto Fontanilla purchased from petitioner United Airlines, through the
Philippine Travel Bureau in Manila three (3) "Visit the U.S.A." tickets for himself, his wife and his minor son
Mychal for the following routes:

a. San Francisco to Washinton (15 April 1989);

b. Washington to Chicago (25 April 1989);

c. Chicago to Los Angeles (29 April 1989);

d. Los Angeles to San Francisco (01 may 1989 for petitioner’s wife and 05 May 1989 for petitioner and
his son). 1

All flights had been confirmed previously by United Airlines. 2

The Fontanillas proceeded to the United States as planned, where they used the first coupon from San
Francisco to Washington. On April 24, 1989, Aniceto Fontanilla bought two (2) additional coupons each for
himself, his wife and his son from petitioner at its office in Washington Dulles Airport. After paying the penalty
for rewriting their tickets, the Fontanillas were issued tickets with corresponding boarding passes with the
words "CHECK-IN REQUIRED," for United Airlines Flight No. 1108, set to leave from Los Angeles to San
Francisco at 10:30 a.m. on May 5, 1989.3

The cause of the non-boarding of the Fontanillas on United Airlines Flight No. 1108 makes up the bone of
contention of this controversy.1âw phi 1.nêt

Private respondents’ version is as follows:

Aniceto Fontanilla and his son Mychal claim that on May 5, 1989, upon their arrival at the los Angeles Airport
for their flight, they proceeded to united Airlines counter where they were attended by an employee wearing a
nameplate bearing the name "LINDA." Linda examined their tickets, punched something into her computer and
then told them that boarding would be in fifteen minutes.4

When the flight was called, the Fontanillas proceeded to the plane. To their surprise, the stewardess at the gate
did not allow them to board the plane, as they had no assigned seat numbers. They were then directed to go
back to the "check-in" counter where Linda subsequently informed them that the flight had been overbooked
and asked them to wait.5

The Fontanillas tried to explain to Linda the special circumstances of their visit. However, Linda told them in
arrogant manner, "So what, I can not do anything about it."6
Subsequently, three other passengers with Caucasian features were graciously allowed to baord, after the
Fontanillas were told that the flight had been overbooked.7

The plane then took off with the Fontanillas’ baggage in tow, leaving them behind.8

The Fontanillas then complained to Linda, who in turn gave them an ugly stare and rudely uttered, "it’s not my
fault. It’s the fault of the company. Just sit down and wait."9 When Mr. Fontanilla reminded Linda of the
inconvenience being caused to them, she bluntly retorted, "Who do you think you are? You lousy Flips are
good for nothing beggars. You always ask for American aid." After which she remarked "Don’t worry about your
baggage. Anyway there is nothing in there. What are you doing here anyway? I will report you to immigration.
You Filipinos should go home."10 Such rude statements were made in front of other people in the airport causing
the Fontanillas to suffer shame, humiliation and embarrassment. The chastening situation even caused the
younger Fontanilla to break into tears.11

After some time, Linda, without any explanation, offered the Fontanillas $50.00 each. She simply said "Take it
or leave it." This, the Fontanillas declined.12

The Fontanillas then proceeded to the United Airlines customer service counter to plead their case. The male
employee at the counter reacted by shouting that he was ready for it and left without saying anything. 13

The Fontanillas were not booked on the next flight, which departed for San Francisco at 11:00 a.m. It was only
at 12:00 noon that they were able to leave Los Angeles on United Airlines Flight No. 803.

Petitioner United Airlines has a different version of what occurred at the Los Angeles Airport on May 5, 1989.

According to United Airlines, the Fontanillas did not initially go to the check-in counter to get their seat
assignments for UA Flight 1108. They instead proceeded to join the queue boarding the aircraft without first
securing their seat assignments as required in their ticket and boarding passes. Having no seat assignments,
the stewardess at the door of the plane instructed them to go to the check-in counter. When the Fontanillas
proceeded to the check-in counter, Linda Allen, the United Airlines Customer Representative at the counter
informed them that the flight was overbooked. She booked them on the next available flight and offered them
denied boarding compensation. Allen vehemently denies uttering the derogatory and racist words attributed to
her by the Fontanillas.14

The incident prompted the Fontanillas to file Civil Case No. 89-4268 for damages before the Regional Trial
Court of Makati. After trial on the merits, the trial court rendered a decision, the dispositive portion of which
reads as follows:

WHEREFORE, judgment is rendered dismissing the complaint. The counterclaim is likewise

dismissed as it appears that plaintiffs were not actuated by legal malice when they filed the
instant complaint.15

On appeal, the Court of Appeals ruled in favor of the Fontanillas. The appellate court found that there was an
admission on the part of United Airlines that the Fontanillas did in fact observe the check-in requirement. It
ruled further that even assuming there was a failure to observe the check-in requirement, United Airlines failed
to comply with the procedure laid down in cases where a passenger is denied boarding. The appellate court
likewise gave credence to the claim of Aniceto Fontanilla that the employees of United Airlines were
discourteous and arbitrary and, worse, discriminatory. In light of such treatment, the Fontanillas were entitled to
moral damages. The dispositive portion of the decision of the respondent Court of Appeals dated 29
September 1995, states as follows:

WHEREFORE, in view of the foregoing, judgment appealed herefrom is hereby REVERSED

and SET ASIDE, and a new judgment is entered ordering defendant-appellee to pay plaintiff-
appellant the following:
 a. P200,000.00 as moral damages;
b. P200,000.00 as exemplary damages;
c. P50,000.00 as attorney’s fees;

No pronouncement as to costs.

SO ORDERED.16

Petitioner United Airlines now comes to this Court raising the following assignments of errors;

RESPONDENT COURT OF APPEALS GRVAELY ERRED IN RULING

THAT THE TRIAL COURT WAS WRONG IN FAILING TO CONSIDER THE
ALLEGED ADMISSION THAT PRIVATE RESPONDENT OBSERVED THE
CHECK-IN REQUIREMENT.

II

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN RULING

THAT PRIVATE RESPONDENT’S FAILURE TO CHECK-IN WILL NOT
DEFEAT HIS CLAIMS BECAUSE THE DENIED BOARDING RULES WERE
NOT COMPLIED WITH.

III

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN RULING

THAT PRIVATE RESPONDENT IS ENTITLED TO MORAL DAMAGES OF
P200,000.

IV

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN RULING

THAT PRIVATE RESPONDENT IS ENTITLED TO EXEMPLARY DAMAGES
OF P200,000.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN RULING

THAT PRIVATE RESPONDENT IS ENTITLED TO ATTORNEY’S FEES OF
P50,000.17

On the first issue raised by the petitioner, the respondent Court of Appeals ruled that when Rule 9, Section 1 of
the Rules of Court,18 there was an implied admission in petitioner’s answer in the allegations in the complaint
that private respondent and his son observed the "check-in requirement at the Los Angeles Airport." Thus:
 A perusal of the above pleadings filed before the trial court disclosed that there exist a blatant
admission on the part of the defendant-appellee that the plaintiffs-appellants indeed observed
the "check-in" requirement at the Los Angeles Airport on May 5, 1989. In view of defendant-
appellee’s admission of plaintiffs-appellants’ material averment in the complaint. We find no
reason why the trial court should rule against such admission.19

We disagree with the above conclusion reached by respondent Court of Appeals. Paragraph 7 of private
respondents’ complaint states:

7. On May 5, 1989 at 9:45 a.m., plaintiff and his son checked in at defendant’s designated
counter at the airport in Los Angeles for their scheduled flight to San Francisco on defendant’s
Flight No. 1108.20

Responding to the above allegations, petitioner averred in paragraph 4 of its answer, thus:

4. Admits the allegation set forth in paragraph 7 of the complaint except to deny that plaintiff
and his son checked in at 9:45 a.m., for lack of knowledge or information at this point in time
as to the truth thereof.21

The rule authorizing an answer that the defendant has no knowledge or information sufficient to form a belief as
to the truth of an averment giving such answer is asserted is so plainly and necessarily within the defendant’s
knowledge that his averment of ignorance must be palpably untrue.22 Whether or not private respondents
checked in at petitioner’s designated counter at the airport at 9:45 a.m. on May 5, 1989 must necessarily be
within petitioner’s knowledge.

While there was no specific denial as to the fact of compliance with the "check-in" requirement by private
respondents, petitioner presented evidence to support its contention that there indeed was no compliance.

Private respondents then are said to have waived the rule on admission. It not only presented evidence to
support its contention that there was compliance with the check-in requirement, it even allowed petitioner to
present rebutal evidence. In the case of Yu Chuck vs. "Kong Li Po," we ruled that:

The object of the rule is to relieve a party of the trouble and expense in proving in the first
instance an alleged fact, the existence or non-existence of which is necessarily within the
knowledge of the adverse party, and of the necessity (to his opponent’s case) of establishing
which such adverse party is notified by his opponent’s pleadings.

The plaintiff may, of course, waive the rule and that is what must be considered to have done
(sic) by introducing evidence as to the execution of the document and failing to object to the
defendant’s evidence in refutation; all this evidence is now competent and the case must be
decided thereupon.23

The determination of the other issues raised is dependent on whether or not there was a breach of contract in
bad faith on the part of the petitioner in not allowing the Fontanillas to board United Airlines Flight 1108.

It must be remembered that the general rule in civil cases is that the party having the burden of proof of an
essential fact must produce a preponderance of evidence thereon.24 Although the evidence adduced by the
plaintiff is stronger than that presented by the defendant, a judgment cannot be entered in favor of the former, if
his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own
evidence and not upon the weakness of the defendant’s.25 Proceeding from this, and considering the
contradictory findings of facts by the Regional Trial Court and the Court of Appeals, the question before this
Court is whether or not private respondents were able to prove with adequate evidence his allegations of
breach of contract in bad faith.
We rule in the negative.

Time and again, the Court has pronounced that appellate courts should not, unless for strong and cogent
reasons, reverse the findings of facts of trial courts. This is so because trial judges are in better position to
examine real evidence and at a vantage point to observe the actuation and the demeanor of the
witnesses.26 While not the sole indicator of the credibility of a witness, it is of such weight that it has been said to
be the touchstone of credibility.27

Aniceto Fontanilla’s assertion that upon arrival at the airport at 9:45 a.m., he immediately proceeded to the
check-in counter, and that Linda Allen punched in something into the computer is specious and not supported
by the evidence on record. In support of their allegations, private respondents submitted a copy of the boarding
pass. Explicitly printed on the boarding pass are the words "Check-In Required." Curiously, the said pass did
not indicate any seat number. If indeed the Fontanillas checked in at the designated time as they claimed, why
then were they not assigned seat numbers? Absent any showing that Linda was so motivated, we do not buy
into private respondents’ claim that Linda intentionally deceived him, and made him the laughing stock among
the passengers.28Hence, as correctly observed by the trial court:

Plaintiffs fail to realize that their failure to check in, as expressly required in their boarding
passes, is they very reason why they were not given their respective seat numbers, which
resulted in their being denied boarding.29

Neither do we agree with the conclusion reached by the appellate court that private respondents’ failure to
comply with the check-in requirement will not defeat his claim as the denied boarding rules were not complied
with. Notably, the appellate court relied on the Code of Federal Regulation Part on Oversales which states:

250.6 Exceptions to eligibility for denied boarding compensation.

A passenger denied board involuntarily from an oversold flight shall not be eligible for denied
board compensation if:

a. The passenger does not comply with the carrier’s contract of carriage or tariff
provisions regarding ticketing, reconfirmation, check-in, and acceptability for
transformation.

The appellate court, however, erred in applying the laws of the United States as, in the case at bar, Philippine
law is the applicable law. Although, the contract of carriage was to be performed in the United States, the
tickets were purchased through petitioner’s agent in Manila. It is true that the tickets were "rewritten" in
Washington, D.C. however, such fact did not change the nature of the original contract of carriage entered into
by the parties in Manila.

In the case of Zalanea vs. Court of Appeals,30 this Court applied the doctrine of lex loci contractus. According to
the doctrine, as a general rule, the law of the place where a contract is made or entered into governs with
respect to its nature and validity, obligation and interpretation. This has been said to be the rule even though
the place where the contract was made is different from the place where it is to be performed, and particularly
so, if the place of the making and the place of performance are the same. Hence, the court should apply the
law of the place where the airline ticket was issued, when the passengers are residents and nationals of the
forum and the ticket is issued in such State by the defendant airline.

The law of the forum on the subject matter is Economic Regulations No. 7 as amended by Boarding Priority
and Denied Board Compensation of the Civil Aeronautics Board which provides that the check-in requirement
be complied with before a passenger may claim against a carrier for being denied boarding:
 Sec. 5. Amount of Denied Boarding Compensation Subject to the exceptions provided
hereinafter under Section 6, carriers shall pay to passengers holding confirmed reserved
space and who have presented themselves at the proper place and time and fully complied
with the carrier’s check-in and reconfirmation procedures and who are acceptable for carriage
under the Carrier’s tariff but who have been denied boarding for lack of space, a
compensation at the rate of: xxx

Private respondents’ narration that they were subjected to harsh and derogatory remarks seems incredulous.
However, this Court will not attempt to surmise what really happened, suffice to say, private respondent was
not able to prove his cause of action, for as the trial court correctly observed:

xxx plaintiffs claim to have been discriminated against and insulted in the presence of several
people. Unfortunately, plaintiffs limited their evidence to the testimony of Aniceto Fontanilla,
without any corroboration by the people who saw or heard the discriminatory remarks and
insults; while such limited testimony could possibly be true, it does not enable the Court to
reach the conclusion that plaintiffs have, by a preponderance of evidence, proven that they
are entitled to P1,650,000.00 damages from defendant.31

As to the award of moral and exemplary damages, we find error in the award of such by the Court of Appeals.
For the plaintiff to be entitled to an award of moral damages arising from a breach of contract of carriage, the
carrier must have acted with fraud or bad faith. The appellate court predicated its award on our pronouncement
in the case of Zalanea vs. Court of Appeals, supra, where we stated:

Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling
passengers concerned to an award of moral damages. In Alitalia Airways vs. Court of
Appeals, where passengers with confirmed booking were refused carriage on the last minute,
this Court held that when an airline issues a ticket to a passenger confirmed on a particular
flight, on a certain date, a contract of carriage arises, and the passenger has every right to
except that he would fly on that flight and on that date. If he does not, then the carrier opens
itself to a suit for breach of contract of carriage. Where an airline had deliberately overbooked,
it took the risk of having to deprive some passengers of their seats in case all of them would
show up for check in. For the indignity and inconvenience of being refused a confirmed seat
on the last minute, said passenger is entitled to moral damages. (Emphasis supplied).

However, the Court’s ruling in said case should be read in consonance with existing laws, particularly,
Economic Regulations No. 7, as amended, of the Civil Aeronautics Board:

Sec. 3. Scope. – This regulation shall apply to every Philippine and foreign air carrier with
respect to its operation of flights or portions of flights originating from or terminating at, or
serving a point within the territory of the Republic of the Philippines insofar as it denies
boarding to a passenger on a flight, or portion of a flight inside or outside the Philippines, for
which he holds confirmed reserved space. Furthermore, this Regulation is designed to cover
only honest mistakes on the part of the carriers and excludes deliberate and willful acts of
non-accommodation. Provided, however, that overbooking not exceeding 10% of the seating
capacity of the aircraft shall not be considered as a deliberate and willful act of non-
accommodation.

What this Court considers as bad faith is the willful and deliberate overbooking on the part of the airline carrier.
The above-mentioned law clearly states that when the overbooking does not exceed ten percent (10%), it is not
considered as deliberate and therefore does not amount to bad faith. While there may have been overbooking
in this case, private respondents were not able to prove that the overbooking on United Airlines Flight 1108
exceeded ten percent.

As earlier stated, the Court is of the opinion that the private respondents were not able to prove that they were
subjected to coarse and harsh treatment by the ground crew of united Airlines. Neither were they able to show
that there was bad faith on part of the carrier airline. Hence, the award of moral and exemplary damages by the
Court of Appeals is improper. Corollarily, the award of attorney’s fees is, likewise, denied for lack of any legal
and factual basis.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G.R. CV No. 37044 is
hereby REVERSED and SET ASIDE. The decision of the Regional Trial Court of Makati City in Civil Case No.
89-4268 dated April 8, 1991 is hereby REINSTATED.

SO ORDERED.

Davide Jr., Puno, Pardo, Ynares-Santiago. JJ., concur.

dsadasda