G.R. Nos.

178831-32

July 30, 2009

JOCELYN SY LIMKAICHONG, Petitioner, vs. COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and RENALD F. VILLANDO, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179120 July 30, 2009

LOUIS C. BIRAOGO, Petitioner, vs. HON. PROSPERO NOGRALES, Speaker of the House of Representatives of the Congress of the Philippines, and JOCELYN SY LIMKAICHONG, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 179132-33 July 30, 2009

OLIVIA P. PARAS, Petitioner, vs. HON. PROSPERO NOGRALES, in his capacity as Speaker of the House of Representatives; HON. ROBERTO NAZARENO, in his capacity as Secretary General of the House of Representatives; HON. RHODORA SEVILLA, in her capacity as Deputy Secretary General for Finance of the House of Representatives; THE COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 179240-41 July 30, 2009

RENALD F. VILLANDO, Petitioner, vs. COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, Respondents. RESOLUTION PERALTA, J.: The instant motion with prayer for oral argument filed by Louis C. Biraogo, petitioner in G.R. No. 179120, seeks a reconsideration of the Courts April 1, 2009 Decision, which granted Jocelyn D. Sy Limkaichongs petition for certiorari in G.R. Nos. 178831-32. The Court dismissed all the other petitions, including Biraogos petition, and reversed the Joint Resolution of the Commission on Elections (COMELEC) Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 disqualifying Limkaichong from running as a congressional candidate in the First District of Negros Oriental due to lack of citizenship requirement. Biraogo prefaced his motion by stating that justice and constitutionalism must remain entrenched in Philippine case law. To achieve this end, he maintained that the Court should reconsider its April 1, 2009 Decision. He also prayed for an oral argument, which he posited, would help the Court in the just and proper disposition of the pending incident.

After an assiduous review of the motion for reconsideration, we resolve that the same should be denied for lack of merit. Most of the arguments advanced by Biraogo are a mere rehash of his previous arguments, which we have all considered and found without merit in the Decision dated April 1, 2009. Nonetheless, in order to lay to rest once and for all Biraogo's misgivings, we shall discuss only the relevant issues and revalidate our Decision by ruling on his motion as follows: The core issue in the consolidated petitions is the qualification of Limkaichong to run for, be elected to, and assume and discharge, the position of Representative for the First District of Negros Oriental. The contention of the parties who sought her disqualification is that she is not a natural-born citizen, hence, she lacks the citizenship requirement in Section 6,1 Article VI of the 1987 Constitution. In the election that ensued, she was voted for by the constituents of Negros Oriental and garnered the highest votes. She was eventually proclaimed as the winner and has since performed her duties and responsibilities as Member of the House of Representatives. Indeed, the citizenship requirement was enshrined in our Constitution in order to ensure that our people and country do not end up being governed by aliens.2 With this principle in mind, we have said in Aquino v. COMELEC3 that if one of the essential qualifications for running for membership in the House of Representatives is lacking, then not even the will of a majority or plurality of the voters would substitute for a requirement mandated by the fundamental law itself. Hence assuming, time constraints notwithstanding, and after proper proceedings before the proper tribunal be had, that Limkaichong would prove to be an alien, the court of justice would tilt against her favor and would not sanction such an imperfection in her qualification to hold office. But, first things first. The proponents against Limkaichong's qualification stated that she is not a natural-born citizen because her parents were Chinese citizens at the time of her birth. They went on to claim that the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects. In our Decision, We held that: However, in assailing the citizenship of the father, the proper proceeding should be in accordance with Section 18 of Commonwealth Act No. 473 which provides that: Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register: 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally; 2. If the person naturalized shall, within five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized

remaining more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same: 3. If the petition was made on an invalid declaration of intention; 4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high school recognized by the Office of Private Education [now Bureau of Private Schools] of the Philippines, where Philippine history, government or civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the Clerk of Court of the Department of Interior [now Office of the President] and the Bureau of Justice [now Office of the Solicitor General]; 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the constitutional or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied) As early as the case of Queto v. Catolico, where the Court of First Instance judge motu propio and not in the proper denaturalization proceedings called to court various grantees of certificates of naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of naturalization due to procedural infirmities, the Court held that: x x x It may be true that, as alleged by said respondents, that the proceedings for naturalization were tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case. The jurisdiction of the court to inquire into and rule upon such infirmities must be properly invoked in accordance with the procedure laid down by law. Such procedure is the cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in the proper proceedings by the Solicitor General or his representatives, or by the proper provincial fiscal." In other words, the initiative must come from these officers, presumably after previous investigation in each particular case. (Emphasis supplied) Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizens descendant. Accordingly, it is not enough that one's qualification, or lack of it, to hold an office requiring one to be a natural-born citizen, be attacked and questioned before any tribunal or government institution. Proper proceedings must be strictly followed by the proper officers under the law. Hence, in seeking Limkaichong's disqualification on

account of her citizenship, the rudiments of fair play and due process must be observed, for in doing so, she is not only deprived of the right to hold office as a Member of the House of Representative but her constituents would also be deprived of a leader in whom they have put their trust on through their votes. The obvious rationale behind the foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for her bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.4 These precepts, notwithstanding, Biraogo remained firm in his belief that this Court erred in its Decision and that the COMELEC Joint Resolution dated May 17, 2007 disqualifying Limkaichong should have been affirmed. He even went to a great extent of giving a dichotomy of the said Joint Resolution by stating that it was composed of two parts, the first part of which is the substantive part, and the second, pertains to the injunctive part. For this purpose, the dispositive portion of the said COMELEC Joint Resolution is reproduced below: WHEREFORE, the Petitions are GRANTED and Jocelyn D. Sy-Limkaichong is declared as DISQUALIFIED from her candidacy for Representative of the First District of Negros Oriental. The Provincial Supervisor of the Commission on Elections of Negros Oriental is hereby directed to strike out the name JOCELYN SY-LIMKAICHONG from the list of eligible candidates for the said position, and the concerned Board of Canvassers is hereby directed to hold and/or suspend the proclamation of JOCELYN SY-LIMKAICHONG as winning candidate, if any, until this decision has become final. SO ORDERED. 5 Biraogo maintained that the Motion for Reconsideration filed by Limkaichong suspended only the execution of the substantive relief or the first part of the above-quoted COMELEC Joint Resolution. However, it did not suspend the execution of the injunctive part and, accordingly, the Provincial Supervisor of the COMELEC should not have proceeded with Limkaichong's proclamation as the winning candidate in the elections. His argument has no leg to stand on. We cannot take a decision or resolution on a piecemeal basis and apply only that part which is seemingly beneficial to one's cause and discard the prejudicial part which, obviously, would just be a hindrance in advancing one's stance or interests. Besides, the COMELEC Joint Resolution which Biraogo dichotomized was effectively suspended when Limkaichong timely filed her Motion for Reconsideration pursuant to Section 13(c),6 Rule 18 and Section 2,7 Rule 19 of the COMELEC Rules of Procedure. Hence, it cannot as yet be implemented for not having attained its finality. Nevertheless, events have already transpired after the COMELEC has rendered its Joint Resolution. Limkaichong was proclaimed by the Provincial Board of Canvassers, she had taken her oath of office, and she was allowed to officially assume the office on July 23,

2007. Accordingly, we ruled in our April 1, 2009 Decision that the House of Representatives Electoral Tribunal (HRET), and no longer the COMELEC, should now assume jurisdiction over the disqualification cases. Pertinently, we held: x x x The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.8 It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 2509 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.10 Section 17, Article VI of the 1987 Constitution provides: 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. xxxx Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that Limkaichongs proclamation was tainted with irregularity, which will effectively prevent the HRET from acquiring jurisdiction. The fact that the proclamation of the winning candidate, as in this case, was alleged to have been tainted with irregularity does not divest the HRET of its jurisdiction.11 The Court has shed light on this in the case of Vinzons-Chato,12 to the effect that: In the present case, it is not disputed that respondent Unico has already been proclaimed and taken his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico's proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's proclamation is null and void does not divest the HRET of its jurisdiction:

x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. Further, for the Court to take cognizance of petitioner Chato's election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET. In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a members qualification to sit in the House of Representatives. The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a petition for quo warranto against a Member of the House of Representatives. In our Decision, we ruled that the ten-day prescriptive period under the 1998 HRET Rules does not apply to disqualification based on citizenship, because qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. 13 Accordingly, the 1987 Constitution requires that Members of the House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding. In fine, we hold that Biraogo had not successfully convinced us to reconsider our Decision and grant his motion for reconsideration. In a last-ditched attempt to muddle the issues, Biraogo observed that the Decision dated April 1, 2009 is a complete turn-around from the ruling embodied in the Decision written by Justice Ruben T. Reyes which, although unpromulgated, was nonetheless signed by fourteen (14) Associate Justices and approved by the Court en banc on July 15, 2008. He decried the absence of an explanation in the Decision dated April 1, 2009 for the said departure or turn-around. Such a position deserves scant consideration. The Court in Belac v. Commision on Elections,14 held that a decision must not only be signed by the Justices who took part in the deliberation, but must also be promulgated to be considered a Decision, to wit: [A] true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to

sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justices themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but in no way is that decision binding unless and until signed and promulgated. We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it. Thus, an unpromulgated decision is no decision at all. At the very least, they are part of the confidential internal deliberations of the Court which must not be released to the public. A decision becomes binding only after it is validly promulgated.15 Until such operative act occurs, there is really no decision to speak of, even if some or all of the Justices have already affixed their signatures thereto. During the intervening period from the time of signing until the promulgation of the decision, any one who took part in the deliberation and had signed the decision may, for a reason, validly withdraw one's vote, thereby preserving one's freedom of action. In sum, we hold that Biraogos Motion for Reconsideration with Prayer for Oral Argument must be denied. This Court did not err in ruling that the proper remedy of those who may assail Limkaichong's disqualification based on citizenship is to file before the HRET the proper petition at any time during her incumbency. WHEREFORE, the Motion for Reconsideration with Prayer for Oral Argument filed by petitioner Louis C. Biraogo in G.R. No. 179120 is DENIED with FINALITY. SO ORDERED.

G.R. No. 182701

July 23, 2008

EUSEBIO EUGENIO K. LOPEZ, Petitioner, vs. COMMISSION ON ELECTIONS and TESSIE P. VILLANUEVA, Respondents. RESOLUTION REYES, R.T., J.: A Filipino-American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. This is a petition for certiorari under Rule 65, in relation to Rule 64 of the Rules on Civil Procedure assailing the (1) Resolution1 and (2) Omnibus Order2 of the Commission on Elections (COMELEC), Second Division, disqualifying petitioner from running as Barangay Chairman. Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized Barangay and Sangguniang Kabataan Elections held on October 29, 2007. On October 25, 2007, respondent Tessie P. Villanueva filed a petition 3 before the Provincial Election Supervisor of the Province of Iloilo, praying for the disqualification of petitioner on the ground that he is an American citizen, hence, ineligible from running for any public office. In his Answer,4 petitioner argued that he is a dual citizen, a Filipino and at the same time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as the Citizenship Retention and Re-acquisition Act of 2003. 5 He returned to the Philippines and resided in Barangay Bagacay. Thus, he said, he possessed all the qualifications to run for Barangay Chairman. After the votes for Barangay Chairman were canvassed, petitioner emerged as the winner.6 On February 6, 2008, COMELEC issued the assailed Resolution granting the petition for disqualification, disposing as follows: WHEREFORE, premises considered, the instant Petition for Disqualification is GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo. SO ORDERED. 7 In ruling against petitioner, the COMELEC found that he was not able to regain his Filipino citizenship in the manner provided by law. According to the poll body, to be able to qualify as a candidate in the elections, petitioner should have made a personal and sworn renunciation of any and all foreign citizenship. This, petitioner failed to do. His motion for reconsideration having been denied, petitioner resorted to the present petition, imputing grave abuse of discretion on the part of the COMELEC for disqualifying him from running and assuming the office of Barangay Chairman.

We dismiss the petition. Relying on Valles v. Commission on Elections,8 petitioner argues that his filing of a certificate of candidacy operated as an effective renunciation of foreign citizenship. We note, however, that the operative facts that led to this Courts ruling in Valles are substantially different from the present case. In Valles, the candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on foreign soil. 9 Lopez was born of Filipino parents in Australia, a country which follows the principle of jus soli. As a result, she acquired Australian citizenship by operation of Australian law, but she was also considered a Filipino citizen under Philippine law. She did not perform any act to swear allegiance to a country other than the Philippines. In contrast, petitioner was born a Filipino but he deliberately sought American citizenship and renounced his Filipino citizenship. He later on became a dual citizen by re-acquiring Filipino citizenship. More importantly, the Courts 2000 ruling in Valles has been superseded by the enactment of R.A. No. 922510 in 2003. R.A. No. 9225 expressly provides for the conditions before those who re-acquired Filipino citizenship may run for a public office in the Philippines. Section 5 of the said law states: Section 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. (Emphasis added) Petitioner re-acquired his Filipino citizenship under the cited law. This new law explicitly provides that should one seek elective public office, he should first "make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath." Petitioner failed to comply with this requirement. We quote with approval the COMELEC observation on this point: While respondent was able to regain his Filipino Citizenship by virtue of the Dual Citizenship Law when he took his oath of allegiance before the Vice Consul of the Philippine Consulate Generals Office in Los Angeles, California, the same is not enough to allow him to run for a public office. The above-quoted provision of law mandates that a candidate with dual citizenship must make a personal and sworn renunciation of any and

all foreign citizenship before any public officer authorized to administer an oath. There is no evidence presented that will show that respondent complied with the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run for Barangay Chairman of Barangay Bagacay. For the renunciation to be valid, it must be contained in an affidavit duly executed before an officer of law who is authorized to administer an oath. The affiant must state in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be effective. In the instant case, respondent Lopezs failure to renounce his American citizenship as proven by the absence of an affidavit that will prove the contrary leads this Commission to believe that he failed to comply with the positive mandate of law. For failure of respondent to prove that he abandoned his allegiance to the United States, this Commission holds him disqualified from running for an elective position in the Philippines.11 (Emphasis added) While it is true that petitioner won the elections, took his oath and began to discharge the functions of Barangay Chairman, his victory can not cure the defect of his candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.12 In sum, the COMELEC committed no grave abuse of discretion in disqualifying petitioner as candidate for Chairman in the Barangay elections of 2007. WHEREFORE, the petition is DISMISSED. SO ORDERED.

B.M. No. 1678

December 17, 2007

PETITION FOR LEAVE TO RESUME PRACTICE OF LAW, BENJAMIN M.

DACANAY, petitioner. RESOLUTION CORONA, J.: This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to resume the practice of law. Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he migrated to Canada in December 1998 to seek medical attention for his ailments. He subsequently applied for Canadian citizenship to avail of Canadas free medical aid program. His application was approved and he became a Canadian citizen in May 2004. On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and ReAcquisition Act of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he took his oath of allegiance as a Filipino citizen before the Philippine Consulate General in Toronto, Canada. Thereafter, he returned to the Philippines and now intends to resume his law practice. There is a question, however, whether petitioner Benjamin M. Dacanay lost his membership in the Philippine bar when he gave up his Philippine citizenship in May 2004. Thus, this petition. In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138 (Attorneys and Admission to Bar) of the Rules of Court: SECTION 2. Requirements for all applicants for admission to the bar. Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines. Applying the provision, the Office of the Bar Confidant opines that, by virtue of his reacquisition of Philippine citizenship, in 2006, petitioner has again met all the qualifications and has none of the disqualifications for membership in the bar. It recommends that he be allowed to resume the practice of law in the Philippines, conditioned on his retaking the lawyers oath to remind him of his duties and responsibilities as a member of the Philippine bar. We approve the recommendation of the Office of the Bar Confidant with certain modifications. The practice of law is a privilege burdened with conditions.2 It is so delicately affected with public interest that it is both a power and a duty of the State (through this Court) to control and regulate it in order to protect and promote the public welfare.3 Adherence to rigid standards of mental fitness, maintenance of the highest degree of morality, faithful observance of the rules of the legal profession, compliance with the

mandatory continuing legal education requirement and payment of membership fees to the Integrated Bar of the Philippines (IBP) are the conditions required for membership in good standing in the bar and for enjoying the privilege to practice law. Any breach by a lawyer of any of these conditions makes him unworthy of the trust and confidence which the courts and clients repose in him for the continued exercise of his professional privilege.4 Section 1, Rule 138 of the Rules of Court provides: SECTION 1. Who may practice law. Any person heretofore duly admitted as a member of the bar, or thereafter admitted as such in accordance with the provisions of this Rule, and who is in good and regular standing, is entitled to practice law. Pursuant thereto, any person admitted as a member of the Philippine bar in accordance with the statutory requirements and who is in good and regular standing is entitled to practice law. Admission to the bar requires certain qualifications. The Rules of Court mandates that an applicant for admission to the bar be a citizen of the Philippines, at least twenty-one years of age, of good moral character and a resident of the Philippines.5 He must also produce before this Court satisfactory evidence of good moral character and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.6 Moreover, admission to the bar involves various phases such as furnishing satisfactory proof of educational, moral and other qualifications;7 passing the bar examinations;8 taking the lawyers oath9 and signing the roll of attorneys and receiving from the clerk of court of this Court a certificate of the license to practice.10 The second requisite for the practice of law membership in good standing is a continuing requirement. This means continued membership and, concomitantly, payment of annual membership dues in the IBP; 11 payment of the annual professional tax;12 compliance with the mandatory continuing legal education requirement; 13 faithful observance of the rules and ethics of the legal profession and being continually subject to judicial disciplinary control.14 Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in the Philippines? No. The Constitution provides that the practice of all professions in the Philippines shall be limited to Filipino citizens save in cases prescribed by law. 15 Since Filipino citizenship is a requirement for admission to the bar, loss thereof terminates membership in the Philippine bar and, consequently, the privilege to engage in the practice of law. In other words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines. The practice of law is a privilege denied to foreigners.16 The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of another country but subsequently reacquired pursuant to RA 9225. This is because "all Philippine citizens who become citizens of another country shall be deemed not to have

lost their Philippine citizenship under the conditions of [RA 9225]."17 Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with RA 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Under RA 9225, if a person intends to practice the legal profession in the Philippines and he reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper authority for a license or permit to engage in such practice." 18 Stated otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this Court the authority to do so, conditioned on: (a) the updating and payment in full of the annual membership dues in the IBP; (b) the payment of professional tax; (c) the completion of at least 36 credit hours of mandatory continuing legal education; this is specially significant to refresh the applicant/petitioners knowledge of Philippine laws and update him of legal developments and (d) the retaking of the lawyers oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. Compliance with these conditions will restore his good standing as a member of the Philippine bar. WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject to compliance with the conditions stated above and submission of proof of such compliance to the Bar Confidant, after which he may retake his oath as a member of the Philippine bar. SO ORDERED. Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, CarpioMorales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.Quisumbing, J., on leave.

G.R. No. 179848

November 27, 2008

NESTOR A. JACOT, petitioner, vs. ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents. DECISION CHICO-NAZARIO, J.: Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007 of the Commission on Elections (COMELEC) En Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division2 disqualifying him from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on the ground that he failed to make a personal renouncement of his United States (US) citizenship. Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13 December 1989. 3 Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition Act. He filed a request for the administration of his Oath of Allegiance to the Republic of the Philippines with the Philippine Consulate General (PCG) of Los Angeles, California. The Los Angeles PCG issued on 19 June 2006 an Order of Approval4 of petitioners request, and on the same day, petitioner took his Oath of Allegiance to the Republic of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration issued Identification Certificate No. 06-12019 recognizing petitioner as a citizen of the Philippines.6 Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of Vice-Mayor of the Municipality of Catarman, Camiguin. 7 On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification 8 before the COMELEC Provincial Office in Camiguin against petitioner, arguing that the latter failed to renounce his US citizenship, as required under Section 5(2) of Republic Act No. 9225, which reads as follows: Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007, petitioner countered that his Oath of Allegiance to the Republic of the Philippines made before the Los Angeles PCG and the oath contained in his Certificate of Candidacy operated as an effective renunciation of his foreign citizenship. In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the highest number of votes for the position of Vice Mayor. On 12 June 2007, the COMELEC Second Division finally issued its Resolution11 disqualifying the petitioner from running for the position of Vice-Mayor of Catarman, Camiguin, for failure to make the requisite renunciation of his US citizenship. The COMELEC Second Division explained that the reacquisition of Philippine citizenship under Republic Act No. 9225 does not automatically bestow upon any person the privilege to run for any elective public office. It additionally ruled that the filing of a Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The COMELEC Second Division did not consider Valles v. COMELEC12 and Mercado v. Manzano13 applicable to the instant case, since Valles and Mercado were dual citizens since birth, unlike the petitioner who lost his Filipino citizenship by means of naturalization. The COMELEC, thus, decreed in the aforementioned Resolution that: ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin for the May 14, 2007 National and Local Elections. If proclaimed, respondent cannot thus assume the Office of Vice-Mayor of said municipality by virtue of such disqualification.14 Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath of Allegiance to the Republic of the Philippines before the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as an effective renunciation of his US citizenship. Attached to the said Motion was an "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced his US citizenship.15 The COMELEC en banc dismissed petitioners Motion in a Resolution16 dated 28 September 2007 for lack of merit. Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under Rule 65 of the Revised Rules of Court, where he presented for the first time an "Affidavit of Renunciation of Allegiance to the United States and Any and All Foreign Citizenship"17 dated 7 February 2007. He avers that he executed an act of renunciation of his US citizenship, separate from the Oath of Allegiance to the Republic of the Philippines he took before the Los Angeles PCG and his filing of his Certificate of Candidacy, thereby changing his theory of the case during the appeal. He attributes the delay in the presentation of the affidavit to his former counsel, Atty. Marciano Aparte, who allegedly advised him that said piece of evidence was unnecessary but who, nevertheless, made him execute an identical document entitled "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after he had already filed his Certificate of Candidacy.18 Petitioner raises the following issues for resolution of this Court:

I WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE "CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003," SPECIFICALLY SECTION 5(2) AS TO THE REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC OFFICE; II WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS REGARDS THE PAYMENT OF THE NECESSARY MOTION FEES; AND III WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN, CAMIGUIN. 19 The Court determines that the only fundamental issue in this case is whether petitioner is disqualified from running as a candidate in the 14 May 2007 local elections for his failure to make a personal and sworn renunciation of his US citizenship. This Court finds that petitioner should indeed be disqualified. Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the Philippines made before the Los Angeles PCG and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship because these are distinct requirements to be complied with for different purposes. Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are already naturalized citizens of a foreign country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or retain their Philippine citizenship: SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I __________ solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the

duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines, but there is nothing therein on his renunciation of foreign citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein said Filipino has dual citizenship by also reacquiring or retaining his Philippine citizenship, despite his foreign citizenship. The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate of Candidacy which must be executed by any person who wishes to run for public office in Philippine elections. Such an oath reads: I am eligible for the office I seek to be elected. I will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities of the Republic of the Philippines; and that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion. I hereby certify that the facts stated herein are true and correct of my own personal knowledge. Now, Section 5(2) of Republic Act No. 9225 specifically provides that: Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy.20 Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who

have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship: CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath." I think its very good, ha? No problem? REP. JAVIER. I think its already covered by the oath. CHAIRMAN DRILON. Renouncing foreign citizenship. REP. JAVIER. Ah but he has taken his oath already. CHAIRMAN DRILON. Nono, renouncing foreign citizenship. xxxx CHAIRMAN DRILON. Can I go back to No. 2. Whats your problem, Boy? Those seeking elective office in the Philippines. REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano CHAIRMAN DRILON. His American citizenship. REP. JAVIER. To discourage him from running? CHAIRMAN DRILON. No. REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he will have only one. (Emphasis ours.)

There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship. By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship is an additional requisite only for those who have retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective public posts, considering their special circumstance of having more than one citizenship. Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the filing by a person with dual citizenship of a certificate of candidacy, containing an oath of allegiance, was already considered a renunciation of foreign citizenship. The ruling of this Court in Valles and Mercado is not applicable to the present case, which is now specially governed by Republic Act No. 9225, promulgated on 29 August 2003. In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano was sought under another law, Section 40(d) of the Local Government Code, which reads: SECTION 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxxx (d) Those with dual citizenship. The Court in the aforesaid cases sought to define the term "dual citizenship" vis--vis the concept of "dual allegiance." At the time this Court decided the cases of Valles and Mercado on 26 May 1999 and 9 August 2000, respectively, the more explicitly worded requirements of Section 5(2) of Republic Act No. 9225 were not yet enacted by our legislature.23 Lopez v. Commission on Elections24 is the more fitting precedent for this case since they both share the same factual milieu. In Lopez, therein petitioner Lopez was a natural-born Filipino who lost his Philippine citizenship after he became a naturalized US citizen. He later reacquired his Philippine citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local elective position, but failed to make a personal and sworn renunciation of his foreign citizenship. This Court unequivocally declared that despite having garnered the highest number of votes in the election, Lopez is nonetheless

disqualified as a candidate for a local elective position due to his failure to comply with the requirements of Section 5(2) of Republic Act No. 9225. Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an "Affidavit of Renunciation of Allegiance to the United States and Any and All Foreign Citizenship,"25 which he supposedly executed on 7 February 2007, even before he filed his Certificate of Candidacy on 26 March 2007. With the said Affidavit, petitioner puts forward in the Petition at bar a new theory of his casethat he complied with the requirement of making a personal and sworn renunciation of his foreign citizenship before filing his Certificate of Candidacy. This new theory constitutes a radical change from the earlier position he took before the COMELECthat he complied with the requirement of renunciation by his oaths of allegiance to the Republic of the Philippines made before the Los Angeles PCG and in his Certificate of Candidacy, and that there was no more need for a separate act of renunciation. As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. 26 Courts have neither the time nor the resources to accommodate parties who chose to go to trial haphazardly.27 Likewise, this Court does not countenance the late submission of evidence. 28 Petitioner should have offered the Affidavit dated 7 February 2007 during the proceedings before the COMELEC. Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any applicable provisions of these Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character and effect." Section 34 of Rule 132 of the Revised Rules of Court categorically enjoins the admission of evidence not formally presented: SEC. 34. Offer of evidence. - The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and controvert it. To admit this document would be contrary to due process. 29 Additionally, the piecemeal presentation of evidence is not in accord with orderly justice.30 The Court further notes that petitioner had already presented before the COMELEC an identical document, "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" executed on 27 June 2007, subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner attached the said Oath of 27 June 2007 to his Motion for Reconsideration with the COMELEC en banc. The COMELEC en banc eventually refused to reconsider said document for being belatedly

executed. What was extremely perplexing, not to mention suspect, was that petitioner did not submit the Affidavit of 7 February 2007 or mention it at all in the proceedings before the COMELEC, considering that it could have easily won his case if it was actually executed on and in existence before the filing of his Certificate of Candidacy, in compliance with law. The justification offered by petitioner, that his counsel had advised him against presenting this crucial piece of evidence, is lame and unconvincing. If the Affidavit of 7 February 2007 was in existence all along, petitioners counsel, and even petitioner himself, could have easily adduced it to be a crucial piece of evidence to prove compliance with the requirements of Section 5(2) of Republic Act No. 9225. There was no apparent danger for petitioner to submit as much evidence as possible in support of his case, than the risk of presenting too little for which he could lose. And even if it were true, petitioners excuse for the late presentation of the Affidavit of 7 February 2007 will not change the outcome of petitioners case. It is a well-settled rule that a client is bound by his counsels conduct, negligence, and mistakes in handling the case, and the client cannot be heard to complain that the result might have been different had his lawyer proceeded differently.31 The only exceptions to the general rule -- that a client is bound by the mistakes of his counsel -- which this Court finds acceptable are when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the rule results in the outright deprivation of ones property through a technicality.32 These exceptions are not attendant in this case. The Court cannot sustain petitioners averment that his counsel was grossly negligent in deciding against the presentation of the Affidavit of 7 February 2007 during the proceedings before the COMELEC. Mistakes of attorneys as to the competency of a witness; the sufficiency, relevancy or irrelevancy of certain evidence; the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses and to argue the case -- unless they prejudice the client and prevent him from properly presenting his case -- do not constitute gross incompetence or negligence, such that clients may no longer be bound by the acts of their counsel.33 Also belying petitioners claim that his former counsel was grossly negligent was the fact that petitioner continuously used his former counsels theory of the case. Even when the COMELEC already rendered an adverse decision, he persistently argues even to this Court that his oaths of allegiance to the Republic of the Philippines before the Los Angeles PCG and in his Certificate of Candidacy amount to the renunciation of foreign citizenship which the law requires. Having asserted the same defense in the instant Petition, petitioner only demonstrates his continued reliance on and complete belief in the position taken by his former counsel, despite the formers incongruous allegations that the latter has been grossly negligent. Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept, petitioner should have promptly taken action, such as discharging his counsel earlier and/or insisting on the submission of his Affidavit of 7 February 2007 to the COMELEC,

instead of waiting until a decision was rendered disqualifying him and a resolution issued dismissing his motion for reconsideration; and, thereupon, he could have heaped the blame on his former counsel. Petitioner could not be so easily allowed to escape the consequences of his former counsels acts, because, otherwise, it would render court proceedings indefinite, tentative, and subject to reopening at any time by the mere subterfuge of replacing counsel. 34 Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De Guzman was unable to present a piece of evidence because his lawyer proceeded to file a demurrer to evidence, despite the Sandiganbayans denial of his prior leave to do so. The wrongful insistence of the lawyer in filing a demurrer to evidence had totally deprived De Guzman of any chance to present documentary evidence in his defense. This was certainly not the case in the Petition at bar. Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by attending the hearings, filing the pleadings, and presenting evidence on petitioners behalf. Moreover, petitioners cause was not defeated by a mere technicality, but because of a mistaken reliance on a doctrine which is not applicable to his case. A case lost due to an untenable legal position does not justify a deviation from the rule that clients are bound by the acts and mistakes of their counsel.36 Petitioner also makes much of the fact that he received the highest number of votes for the position of Vice-Mayor of Catarman during the 2007 local elections. The fact that a candidate, who must comply with the election requirements applicable to dual citizens and failed to do so, received the highest number of votes for an elective position does not dispense with, or amount to a waiver of, such requirement.37 The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed that the candidate was qualified. The rules on citizenship qualifications of a candidate must be strictly applied. If a person seeks to serve the Republic of the Philippines, he must owe his loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.38 The application of the constitutional and statutory provisions on disqualification is not a matter of popularity.39 WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the COMELEC en banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division, is AFFIRMED. Petitioner is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin in the 14 May 2007 National and Local Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said municipality by virtue of such disqualification. Costs against petitioner. SO ORDERED.

G.R. No. 180088

January 19, 2009

MANUEL B. JAPZON, Petitioner, vs. COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.

DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public respondent Commission on Elections (COMELEC) and the Resolution 4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion, amounting to lack or excess of jurisdiction. Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the local elections held on 14 May 2007. On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to disqualify and/or cancel Tys Certificate of Candidacy on the ground of material misrepresentation. Japzon averred in his Petition that Ty was a former naturalborn Filipino, having been born on 9 October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or immigrant of any foreign country. While Ty may have applied for the reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as an American citizen as proven by his travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from running for public office and the cancellation of the latters Certificate of Candidacy. In his Answer6 to Japzons Petition in SPA No. 07-568, Ty admitted that he was a naturalborn Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an Oath of

Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Tys application was approved and he was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007 again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship. Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and renounced his American citizenship, and he had been a resident of the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty sought the dismissal of Japzons Petition in SPA No. 07-568. Pending the submission by the parties of their respective Position Papers in SPA No. 07568, the 14 May 2007 elections were already held. Ty acquired the highest number of votes and was declared Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of Canvassers on 15 May 2007.7 Following the submission of the Position Papers of both parties, the COMELEC First Division rendered its Resolution8 dated 31 July 2007 in favor of Ty. The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit: Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as commissioned or noncommissioned officer in the armed forces in the country of which he was naturalized citizen.9 The COMELEC First Division also held that Ty did not commit material misrepresentation in stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that: Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern

Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.] As held in Coquilla vs. Comelec: "The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides: Requirements of naturalization: Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) year immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added) In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a greencard, which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines. Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on October 26, 2005; and secured a community tax certificate from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14, 2007.10 (Emphasis ours.)

The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads: WHEREFORE, premises considered, the petition is DENIED for lack of merit.11 Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzons Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on the basis of the following ratiocination: We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate for any local post. xxxx It must be noted that absent any showing of irregularity that overturns the prevailing status of a citizen, the presumption of regularity remains. Citizenship is an important aspect of every individuals constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre-determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship. Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to establish the fact. Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues. The arguments made therein have already been dissected and expounded upon extensively by the first Division of the Commission, and there appears to be no reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy would be when there was material misrepresentation meant to mislead the electorate as to the qualifications of the candidate. There was none in this case, thus there is not enough reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty.13 Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant Petition for Certiorari, relying on the following grounds: A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND RESIDENCE. 14 B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15 Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under Republic Act No. 9225. Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for those running for public office cannot be waived or liberally applied in favor of dual citizens. Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local elections. Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a new resolution denying due course to or canceling Tys Certificate of Candidacy; and to declare Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar. As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC already found sufficient evidence to prove that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot evaluate again the very same pieces of evidence without violating the well-entrenched rule that findings of fact of the COMELEC are binding on the Court. Ty disputes Japzons assertion that the COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers that the said Resolutions were based on the evidence presented by the parties and consistent with prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from running in the local elections, Japzon as the second placer in the same elections cannot take his place. The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition considering that Japzon, gathering only the second highest number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality of General

Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said position. And since it took a position adverse to that of the COMELEC, the OSG prays from this Court to allow the COMELEC to file its own Comment on Japzons Petition. The Court, however, no longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda by Japzon, Ty, and the OSG, it already submitted the case for decision. The Court finds no merit in the Petition at bar. There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again. It bears to point out that Republic Act No. 9225 governs the manner in which a naturalborn Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen. Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office. Section 5(2) of Republic Act No. 9225 reads: SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation

of any and all foreign citizenship before any public officer authorized to administer an oath. Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath. That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping solely his Philippine citizenship. The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications required by the Constitution and existing laws. Article X, Section 3 of the Constitution left it to Congress to enact a local government code which shall provide, among other things, for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local Government Code of 1991, Section 39 of which lays down the following qualifications for local elective officials: SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of mayor or vice mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. The challenge against Tys qualification to run as a candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-year residency requirement in the said municipality. The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus

manendi)."18 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a naturalized American citizen, then he must have necessarily abandoned the Municipality of General Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his domicile of choice. As has already been previously discussed by this Court herein, Tys reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his birth. How then could it be established that Ty indeed established a new domicile in the Municipality of General Macarthur, Eastern Samar, Philippines? In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below: Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881). In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to return," stating that his absence from his

residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi. In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a persons legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place. In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, 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. In that case, petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order 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. There must 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. Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement. As espoused by Ty, the issue of whether he complied with the one-year residency requirement for running for public office is a question of fact. Its determination requires the Court to review, examine and evaluate or weigh the probative value of the evidence

presented by the parties before the COMELEC. The COMELEC, taking into consideration the very same pieces of evidence presently before this Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative agencies, such as the COMELEC, which have acquired expertise in their field are binding and conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process, considering that the COMELEC is presumed to be most competent in matters falling within its domain.21 The Court even went further to say that the rule that factual findings of administrative bodies will not be disturbed by courts of justice, except when there is absolutely no evidence or no substantial evidence in support of such findings, should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELECcreated and explicitly made independent by the Constitution itselfon a level higher than statutory administrative organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22 The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court provides that in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.23 The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively, were both supported by substantial evidence and are, thus, binding and conclusive upon this Court. Tys intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar. In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the 14 May 2007 local elections. Japzon maintains that Tys trips abroad during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA

(from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside in the Municipality of General Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this Court, however, view these trips differently. The fact that Ty did come back to the Municipality of General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his animus manendi and animus revertendi. There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections so that he could be considered a resident thereof. To the contrary, the Court has previously ruled that 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.24 The Court also notes, that even with his trips to other countries, Ty was actually present in the Municipality of General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of the fact of residence therein, it does strongly support and is only consistent with Tys avowed intent in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern Samar. Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v. COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could run for an elective post, for as long as he is able to prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. As this Court already found in the present case, Ty has proven by substantial evidence that he had established residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of the Mayor and in which he garnered the most number of votes. Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the victors right to the office, the will of the electorate should be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters. 26 To successfully challenge Tys disqualification, Japzon must clearly demonstrate that Tys ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines. WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED. SO ORDERED.

G.R. No. 176947

February 19, 2009

GAUDENCIO M. CORDORA, Petitioner, vs. COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents. DECISION CARPIO, J.:

The Case This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting (Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the Omnibus Election Code. The Commission on Elections (COMELEC) En Banc dismissed Cordoras complaint in a Resolution1 dated 18 August 2006. The present petition seeks to reverse the 18 August 2006 Resolution as well as the Resolution2 dated 20 February 2007 of the COMELEC En Banc which denied Cordoras motion for reconsideration. The Facts In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false assertions in the following items: That Annex A [Tambuntings Certificate of Candidacy for the 2001 elections] and Annex B [Tambuntings Certificate of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and 12 thereof: 1. No. 6 I am a Natural Born/Filipino Citizen 2. No. 9 No. of years of Residence before May 14, 2001. 36 in the Philippines and 25 in the Constituency where I seek to be elected; 3. No. 12 I am ELIGIBLE for the office I seek to be elected. 3 (Boldface and capitalization in the original) Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements. To disprove Tambuntings claim of being a natural-born Filipino citizen, Cordora presented a certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded: That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under oath, that he is a Filipino (No. 6), No. 9residence requirement which he lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he possesses the above basic requirements under No. 12 that he is indeed eligible for the office to which he seeks to be elected, when in truth and in fact,

the contrary is indubitably established by his own statements before the Philippine Bureau of Immigration x x x.4 (Emphases in the original) Tambunting, on the other hand, maintained that he did not make any misrepresentation in his certificates of candidacy. To refute Cordoras claim that Tambunting is not a naturalborn Filipino, Tambunting presented a copy of his birth certificate which showed that he was born of a Filipino mother and an American father. Tambunting further denied that he was naturalized as an American citizen. The certificate of citizenship conferred by the US government after Tambuntings father petitioned him through INS Form I-130 (Petition for Relative) merely confirmed Tambuntings citizenship which he acquired at birth. Tambuntings possession of an American passport did not mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003. Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the Philippines was shown by his service as councilor of Paraaque. To refute Cordoras claim that the number of years of residency stated in Tambuntings certificates of candidacy is false because Tambunting lost his residency because of his naturalization as an American citizen, Tambunting contended that the residency requirement is not the same as citizenship. The Ruling of the COMELEC Law Department The COMELEC Law Department recommended the dismissal of Cordoras complaint against Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordoras reliance on the certification of the Bureau of Immigration that Tambunting traveled on an American passport is not sufficient to prove that Tambunting is an American citizen. The Ruling of the COMELEC En Banc The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient and convincing evidence. The dispositive portion of the COMELEC En Bancs Resolution reads as follows: WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of evidence to establish probable cause. SO ORDERED. 5 Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which concurred with the findings of the En Banc Resolution. Commissioner Sarmiento

pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting effectively renounced his American citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran for public office. Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordoras motion for reconsideration for lack of merit. The Issue Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that there is no sufficient evidence to support probable cause that may warrant the prosecution of Tambunting for an election offense. Cordoras petition is not an action to disqualify Tambunting because of Tambuntings failure to meet citizenship and residency requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his certificates of candidacy. The Ruling of the Court The petition has no merit. We affirm the ruling of the COMELEC En Banc. Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense There was no grave abuse of discretion in the COMELEC En Bancs ruling that there is no sufficient and convincing evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus Election Code. Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complaint.6 Section 74 of the Omnibus Election Code reads as follows: Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; x x x the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders and decrees promulgated by the duly constituted authorities; that he is not a permanent resident

or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxx The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74, among other sections in the Code, shall constitute an election offense. Tambuntings Dual Citizenship Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his fathers citizenship. Tambunting claims that because of his parents differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen. We agree with Commissioner Sarmientos observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office.7 Requirements for dual citizens from birth who desire to run for public office We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the

principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. xxx [I]n including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen,? No one can renounce. There are such countries in the world.1avvphi1 SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.8 (Emphasis supplied) We have to consider the present case in consonance with our rulings in Mercado v. Manzano,9 Valles v. COMELEC,10 and AASJS v. Datumanong.11 Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individuals active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the

Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship. R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows: I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. Tambuntings residency Cordora concluded that Tambunting failed to meet the residency requirement because of Tambuntings naturalization as an American. Cordoras reasoning fails because Tambunting is not a naturalized American. Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of residing in a fixed place and the intention to return there permanently,16 and is not dependent upon citizenship. In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and residency requirements prescribed by law. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in EO

Case No. 05-17. SO ORDERED.

G.R. No. 88831 November 8, 1990 MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. G.R. No. 84508 November 13, 1990 ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.

Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J.: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987. After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that: The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).

In his dissenting opinion, Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.) In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.) These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... 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. (Sec. 25, 1971, EC). In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case.

In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.) Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.) As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth

Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave. G.R. No. 157013 July 10, 2003 ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and Management, respondents. AUSTRIA-MARTINEZ, J.: Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal,

a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. The Court upholds the right of petitioner to file the present petition. R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes," appropriates funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement of an unconstitutional statute.2 The Court has held that they may assail the validity of a law appropriating public funds3 because expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.4 The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held: Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.6 Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved. The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs. Angara,7 the Court held: In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the

supremacy of the Constitution is upheld." Once a "controversy as to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide." In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution.8 In yet another case, the Court said that: . . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts of these departments, or of any official, betray the peoples will as expressed in the Constitution . . .9 The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves the instant petition10 and determine whether Congress has acted within the limits of the Constitution or if it had gravely abused the discretion entrusted to it.11 The petitioner raises three principal questions: A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution? B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the VicePresident shall be proclaimed as winners by Congress? C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution? The Court will resolve the questions in seriatim. A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines?

Section 5(d) provides: Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: ......... d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support his claim. In that case, the Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise;13 that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote.14 He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. Respondent COMELEC refrained from commenting on this issue.15 In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to constitutional limitations; the legislature intended to enact a valid, sensible, and just law. In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives16 wherein the Court held that the term "residence" has been understood to be synonymous with "domicile" under both Constitutions. He further argues that a person can have only one

"domicile" but he can have two residences, one permanent (the domicile) and the other temporary;17 and that the definition and meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the Courts ruling in Faypon vs. Quirino,19 the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never abandoned their Philippine domicile.20 Taking issue with the petitioners contention that "green card" holders are considered to have abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and permanent residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189.22 The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit: SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right. SEC. 3. Definition of Terms. For purposes of this Act: a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote; . . . (Emphasis supplied) f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied) SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied) in relation to Sections 1 and 2, Article V of the Constitution which read: SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise

disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. . . . . . . . . . (Emphasis supplied) Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they propose to vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.23 Laws that do not conform to the Constitution shall be stricken down for being unconstitutional. Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said: . . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself.24

Thus, presumption of constitutionality of a law must be overcome convincingly: . . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the statute allows it to be done.25 As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon,26 the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest.27 The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates in the constitutional convention.28 R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. It is viewed thus: The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law. Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence. Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of elections. The statutes should be

construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof.29 (Emphasis supplied) Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. 30 However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. In Romualdez-Marcos,31 the Court enunciated: Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic, this court took the concept of domicile to mean an individuals "permanent home," "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: "There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile."

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.32 (Emphasis supplied) Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus: MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world. In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of "residence" in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of "residence" in the Election Law. Allow me to quote:

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

with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters: MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term "absentee voting" also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes. MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad. MR. REGALADO. How about those people who cannot go back to the places where they are registered? MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another place to register and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest.34 (Emphasis supplied) Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified Filipinos abroad is enlightening: MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad? THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same. THE PRESIDENT. Are we leaving it to the legislature to devise the system? FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes. MR. BENGZON. I believe Commissioner Suarez is clarified. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila. MR. TINGSON. Madam President, may I then suggest to the Committee to change the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement? THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would assume that he has the qualifications and none of the disqualifications to vote. MR. TINGSON. That is right. So does the Committee accept? FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"? THE PRESIDENT. Does the Committee accept the amendment? MR. REGALADO. Madam President. THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the phrase "absentee voting" already took that into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly. THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system. MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. THE PRESIDENT. It is just to devise a system by which they can vote. MR. MONSOD. That is right, Madam President.35 (Emphasis supplied) Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning the provision on absentee voting, the Constitutional Commission discussed how the system should work: MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City. In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I just want to make that clear for the record. MR. REGALADO. Madam President. THE PRESIDENT. What does Commissioner Regalado say? MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record. MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,

when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under the system. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines? MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here. FR. BERNAS. So, he does not have to come home. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body. Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I move that we close the period of amendments.36 (Emphasis supplied) It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,37 the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when

Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact. Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says: Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of "residence" is synonymous with "domicile." As the gentleman and I know, Mr. President, "domicile" is the intent to return to ones home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos. If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad." The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And "residents" (sic) is a qualification. I will lose votes here from permanent residents so-called "green-card holders", but the Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a party to something that would affect or impair the Constitution.

Look at what the Constitution says "In the place wherein they propose to vote for at least six months immediately preceding the election." Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking about the Constitution. As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. That is why I am raising this point because I think we have a fundamental difference here. Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence and I think this is so well-entrenched that one need not argue about it "residency" has been interpreted as synonymous with "domicile." But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote.38 (Emphasis supplied) Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit: SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to wit: SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act: a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country" because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to be qualified to vote in a

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

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

constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the result of the elections would be affected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,40 the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical. Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters. Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National Registry of Absentee Voters and

their permanent disqualification to vote in absentia. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective. B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution? Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and party-list representatives. Section 18.5 of the same Act provides: SEC. 18. On-Site Counting and Canvassing. ......... 18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission. (Emphasis supplied) Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president, is unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution: SEC. 4 . . . The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates.

... which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president. The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President.41 Respondent COMELEC has no comment on the matter. Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency. Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president. In addition, the Court notes that Section 18.4 of the law, to wit: 18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . . [Emphasis supplied] clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and Vice-President shall be certified by the board of canvassers to Congress. Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach "on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for the said positions." The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the hands of Congress. C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution? Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit: Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

(Emphasis supplied) He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the legislators. It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C43 of the Constitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interference by any government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion. The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit: SEC. 17. Voting by Mail. 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud; b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and wellsecured. Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee . . . . . . . . . (Emphasis supplied)

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

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to "review, revise, amend and approve the Implementing Rules and Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined by COMELEC. The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be "independent." Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that "[w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government."44 In an earlier case, the Court elucidated: The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.45 (Emphasis supplied) The Court has no general powers of supervision over COMELEC which is an independent body "except those specifically granted by the Constitution," that is, to review its decisions, orders and rulings.46 In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rulemaking authority. By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation.47 Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may

spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC. By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval," and the second sentence of the second paragraph of Section 25 stating that "[i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission," whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC. Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC. During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee. WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL: a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject to the approval of the Joint Congressional Oversight Committee;" b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and approval of the Joint Congressional Oversight Committee;" c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit: "It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission" of the same law; for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC. The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect. SO ORDERED. Davide, Jr., C.J., and Corona, JJ., concur.Quisumbing, J., on leave.Tinga, J., no part. Bellosillo, and Carpio, JJ., see concurring opinion.Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting opinion.Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official leave.Vitug, and Panganiban, JJ., see separate opinion. Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

G.R. No. 162759 August 4, 2006 LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent.

DECISION GARCIA, J.: In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee voters under the aegis of R.A. 9189. The facts: Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003 2, they have yet no right to vote in such elections owing to their lack of the oneyear residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine posts abroad not to discontinue their campaign for voters registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future elections. Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs. COMELEC 3 on the residency requirement, the COMELEC wrote in response: Although R.A. 9225 enjoys the presumption of constitutionality , it is the Commission's position that those who have availed of the law cannot exercise the right of suffrage given under the OAVL for the reason that the OAVL was not enacted for them. Hence, as Filipinos who have merely re-acquired their citizenship on 18 September 2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters who have to meet the requirements of residency, among others under Section 1, Article 5 of the Constitution. 4 Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-Lewis et al., 5 filed on April 1, 2004 this petition for certiorari and mandamus. A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a Comment, 6 therein praying for the denial of the petition. As may be expected, petitioners were not able to register let alone vote in said elections. On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein stating that "all qualified overseas Filipinos, including dual citizens

who care to exercise the right of suffrage, may do so" , observing, however, that the conclusion of the 2004 elections had rendered the petition moot and academic. 7 The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and academic, but insofar only as petitioners participation in such political exercise is concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing "duals" to participate and vote as absentee voter in future elections, however, remains unresolved. Observing the petitioners and the COMELECs respective formulations of the issues, the same may be reduced into the question of whether or not petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189. The Court resolves the poser in the affirmative, and thereby accords merit to the petition. In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage is, therefore, indicated. We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows: SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. xxx. SEC 2. The Congress shall provide a system for absentee voting by qualified Filipinos abroad. In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may vote, implying that a non-resident may, as an exception to the residency prescription in the preceding section, be allowed to vote. In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in its Section 4 who can vote under it and in the following section who cannot, as follows: Section 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. Section 5. Disqualifications. The following shall be disqualified from voting under this Act: (a) Those who have lost their Filipino citizenship in accordance with Philippine laws; (b) Those who have expressly renounced their Philippine citizenship and who have

pledged allegiance to a foreign country; (c) Those who have [been] convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, .; (d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. (e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority . (Words in bracket added.) Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another country opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional challenge on the ground that, as narrated in Macalintal, it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. [The challenger] cites Caasi vs. Court of Appeals 9 to support his claim [where] the Court held that a "green card" holder immigrant to the [US] is deemed to have abandoned his domicile and residence in the Philippines. [The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. 10 (Words in bracket added.) As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the strength of the following premises: As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognized as such in the host country" because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin. However, same Section allows an immigrant and

permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise." 11 Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the relevant portion of which reads: SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: xxx xxx xxx Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship ; 3) xxx xxx xxx. (4) xxx xxx xxx; (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically the right of suffrage, pursuant to Section 5 thereof. Opposing the petitioners bid, however, respondent COMELEC invites attention to the same Section 5 (1) providing that "duals" can enjoy their right to vote, as an adjunct to political rights, only if they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on what at first blush is the clashing provisions of the aforecited provision of the Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting rights, 12 COMELEC argues: 4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES 4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The duals, upon renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to the homeland as a consequence. Having subsequently acquired a second citizenship (i.e., Filipino) then, duals must, for purposes of voting, first of all, decisively and definitely establish their domicile through positive acts; 13 The Court disagrees. As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all

overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal: It is clear from these discussions of the Constitutional Commission that [it] intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, , the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact. Let me read Section 1, Article V, of the Constitution . xxx xxx xxx Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of "residence" is synonymous with "domicile." As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos.

If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad." The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And "residents" (sic) is a qualification. xxx xxx xxx Look at what the Constitution says "In the place wherein they propose to vote for at least six months immediately preceding the election." Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros . We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. . As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. xxx xxx xxx Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence "residency" has been interpreted as synonymous with "domicile." But the third more practical reason, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote. 14 (Emphasis and words in bracket added; citations omitted) Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting.

According to the poll body: 1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225; 15 Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise: "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote; "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections; While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads: SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. It is very likely that a considerable number of those unmarried children below eighteen (18) years of age had never set foot in the Philippines. Now then, if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation. WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act of 2003. SO ORDERED.

G.R. No. 180051

December 24, 2008

NARDO M. VELASCO, petitioner, vs.COMMISSION ON ELECTIONS and MOZART P. PANLAQUI, respondents. DECISION BRION, J.: This petition for certiorari - filed by Nardo M. Velasco (Velasco) under Rule 64, in relation with Rule 65, of the Revised Rules of Court - seeks to set aside and annul [1] the Resolution dated July 6, 2007 of the Second Division of the Commission on Elections (COMELEC) and [2] the Resolution dated October 15, 2007 of the COMELEC en banc, in SPA Case No. 07-148 entitled Mozart P. Panlaqui v. Nardo M. Velasco. The assailed resolutions denied due course to the Certificate of Candidacy (COC) Velasco had filed for the position of Mayor of the Municipality of Sasmuan, Pampanga. THE ANTECEDENTS Velasco was born in San Antonio, Sasmuan, Pampanga on June 22, 1952 to Arsenio Velasco and Lucia Mangalindan. He married Evelyn D. Castillo on June 29, 1975 at the Roman Catholic Church of Sasmuan. In 1983, he moved to and worked in the United States of America where he subsequently became a citizen. Sometime in 2006, Velasco applied for dual citizenship under Republic Act No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition Act of 2003. His application was approved on July 31, 2006. On the same day, he took his oath of allegiance to the Republic of the Philippines before the Philippine Consulate General in San Francisco. He returned to the Philippines on September 14, 2006 and has not left since, except for a 3-day Hongkong trip from September 26, 2006 to September 29, 2009. Soon thereafter or on October 13, 2006, Velasco applied for registration as a voter of Sasmuan, Pampanga. The Election Registration Board (ERB) denied his application. Thereupon, Velasco filed a petition for the inclusion of his name in the list of voters with the Municipal Trial Court of Sasmuan (MTC). The MTC, finding no evidence of Velasco's change of domicile, granted Velasco's petition on February 9, 2007; it reversed the ERB's decision and ordered Velasco's inclusion in the List of Voters of Sasmuan.

On March 1, 2007, Branch 52 of the Regional Trial Court of Guagua, Pampanga (RTC) reversed and set aside, on appeal, the MTC decision. The RTC reasoned out that Velasco lost his domicile of origin [Sasmuan, Pampanga] when he became a US citizen; under Philippine immigration laws, he could only stay in the Philippines as a visitor or as a resident alien. Velasco, according to the RTC, only regained or reacquired his Philippine residency on July 31, 2006 when he reacquired his Filipino citizenship. The RTC based this conclusion on our ruling in Caasi v. Court of Appeals1 that naturalization in a foreign country results in the abandonment of domicile in the Philippines. Thus, the RTC found that Velasco failed to comply with the residency requirement under the Constitution, making him ineligible to vote in the May 14, 2007 elections. Velasco appealed the RTC decision to the Court of Appeals (CA) via a petition for review under Rule 42 of the Rules of Court; the appeal was docketed as CA-G.R. SP No. 98259. It was against this factual backdrop that Velasco filed on March 28, 2007 his COC for the position of Mayor of Sasmuan. Velasco's COC contains, among others, the required information that he is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga. He executed on even date an Affidavit renouncing, abandoning, and relinquishing his American citizenship. The next day, private respondent Mozart Panlaqui (Panlaqui), who also filed his COC for the position of Mayor of Sasmuan, filed a Petition to Deny Due Course To and/or To Cancel Velasco's COC, claiming that: (1) contrary to Velasco's claim, he is not a registered voter of Precinct No. 103-A, as his name is not included in the list of voters; (2) the RTC has rendered a decision denying Velasco's petition for inclusion as voter; (3) Velasco does not possess the constitutional requirement of legal residency (i.e., one year residency in the Philippines immediately preceding the election as provided under Section 1, Article V of the Constitution) to register as voter; he arrived in the Philippines only last September 14, 2006; and (4) Velasco is not eligible to run for office since he is not a qualified voter. Panlaqui asked for the annulment, revocation and cancellation of, or denial of due course to, Velasco's COC that allegedly contained obvious and gross material misrepresentation. The case was docketed as SPA Case No. 07-148. In his Answer, Velasco denied the allegations of Panlaqui's petition and claimed in defense that: (1) he possesses all the qualifications of a voter of Sasmuan, as he is a domiciliary and permanent resident of the Philippines and Sasmuan since birth; that, when he took his oath of allegiance on July 31, 2006, he is considered not to have lost his Philippine citizenship and therefore continues to enjoy full civic and political rights under the Constitution and the statutes; (2) the appeal or review of the RTC decision is pending resolution with the Court of Appeals; (3) he did not act with malice, bad faith and gross misrepresentation when he stated that he is a registered voter of Precinct No. 103-A of Sasmuan in his COC, as the MTC decision has not been reversed with finality; (4) he has renounced his American citizenship on March 29, 2007 or prior to the filing of his COC, making him eligible to seek elective public office pursuant to Republic Act No. 9255; and (5) he possesses all the qualifications of a voter of Sasmuan and of a candidate for Municipal Mayor, Sasmuan being his domicile of origin and permanent residence. He claimed that he is qualified to vote and seek public office until a final judgment is rendered

saying otherwise; hence, he did not commit any misrepresentation and Panlaqui's petition should be dismissed. Velasco garnered 7,822 votes [the most number] for the position of Mayor of Sasmuan in the May 14, 2007 election. As the COMELEC failed to resolve Panlaqui's petition prior to the election, Velasco was proclaimed Mayor of Sasmuan on May 16, 2007. He took his oath of office and assumed the powers and functions of the office on June 30, 2007. On July 6, 2007, the Second Division of the COMELEC issued a Resolution - the first of the interrelated resolutions assailed in the present petition - canceling Velasco's COC and declaring his proclamation as Mayor of Sasmuan null and void. Citing Section 138 of the Omnibus Election Code (OEC)2 which declared the decision of the RTC in the voters inclusion/exclusion proceedings final and executory, the Second Division of the COMELEC found Velasco guilty of material misrepresentation when he claimed in his COC filed on March 28, 2007 that he is a registered voter of Sasmuan, Pampanga. This defect, according to the Second Division, effectively voided Velasco's COC. Velasco moved to reconsider the Second Division's Resolution, but the COMELEC en banc in a Resolution dated October 15, 2007 (also assailed in this petition) denied the motion. The COMELEC en banc essentially affirmed the Second Division's ruling. Additionally, the COMELEC pointed out that in the absence of a writ or order issued by the CA (where the appeal from the RTC decision in the inclusion/exclusion case was then pending) enjoining the enforcement of the RTC decision, it had to apply Section 138 of the OEC. Velasco responded to this development by filing the present petition with this Court. THE PETITION, COMMENTS AND RELATED DEVELOPMENTS The petition is based on the following grounds/arguments: 1. Respondent Comelec committed grave abuse of discretion when it decided the issue on petitioner's right to vote despite its apparent lack of jurisdiction on this issue and the pendency of such prejudicial issue before the CA. 2. Respondent Comelec committed grave abuse of discretion when it ruled that the March 1, 2008 decision of the RTC of Guagua, Pampanga reversing the earlier decision of the MTC of Sasmuan, Pampanga is already final and executory. 3. Respondent COMELEC committed grave abuse of discretion when it annulled the proclamation of the petitioner without notice and hearing. 4. Respondent Comelec committed grave abuse of discretion when it ruled that petitioner committed material misrepresentation in his COC by merely relying on private respondent's baseless allegations in the petition to deny due course to petitioner's COC wit_hout taking into consideration that petitioner possesses all the qualifications and none of the disqualification of a voter. In his comment, Panlaqui asserts that: (1) Velasco committed forum shopping, as another case involving the same issues is on appeal and pending resolution with the CA; and (2) in

light of this appeal, not all the requisites for a petition for certiorari are present; in the alternative and assuming certiorari to be proper, the COMELEC did not commit grave abuse of discretion, as the RTC decision is final, executory, and non-appealable. The Office of the Solicitor General (OSG) filed a Comment in behalf of the COMELEC. The OSG argues that the COMELEC did not commit grave abuse of discretion. The COMELEC has jurisdiction - under Section 78 of Batas Pambansa Blg. 881, as amended, or the OEC - over petitions to deny due course and/or cancel a COC (COCdenial/cancellation). There was likewise no denial of due process; Velasco filed an Answer to Panlaqui's petition and was fully heard before the COMELEC denied due course to his COC. The OSG also argues that Velasco's immigration to the United States and subsequent acquisition of US citizenship constituted an abandonment of his Philippine domicile and residence. Finally, the OSG claims that Velasco committed misrepresentation in declaring his residence at Sasmuan in his COC - a ground for the cancellation of COC under Section 78 of the OEC. The real issue, according to the OSG, is not Velasco's right to vote, but the misrepresentation he committed when he filed his COC. On March 5, 2008, the COMELEC issued a writ of execution to implement the assailed resolutions. The CA, on the other hand, rendered on March 13, 2008 its decision in CAGR SP No. 98259 granting Velasco's appeal, thereby reversing and setting aside the RTC decision. The appellate court ruled that, contrary to the RTC's finding, Velasco effectively reacquired his residence when he decided to relocate in the Philippines for good in 2003; from 2003-2006, Velasco stayed in the Philippines for a total of almost two (2) years for the last three (3) years immediately preceding the May 14, 2007 election; from the totality of these acts, Velasco revealed his intention to reacquire his rights as a Filipino citizen. Citing Macalintal v. Commission on Elections,3 the CA considered Velasco a qualified voter. On Velasco's motion, we issued a status quo ante order enjoining the COMELEC from implementing the assailed resolutions. In an interesting twist, the CA issued on August 19, 2008 an Amended Decision - in response to a motion for reconsideration of its earlier decision - dismissing Velasco's Rule 42 petition for lack of jurisdiction. It reversed its earlier ruling that it has jurisdiction to entertain the appeal, explicitly stating that the jurisprudence it cited to support its appellate jurisdiction in voters' inclusion/exclusion proceeding is no longer good law because of the amendments to the election law on which its cited jurisprudence was based. It declared that "Section 138 of the OEC being explicit that the decision on appeal by the RTC in inclusion and exclusion cases is immediately final and executory appears to be a clear mandate for this Court (the CA) not to entertain instant petition for lack of jurisdiction." Based on these submissions, we are called upon to resolve the following issues: (1) whether Velasco forum-shopped; and (2) whether the COMELEC gravely abused its discretion in canceling Velasco's COC. THE COURT'S RULING

We find the petition devoid of merit. Grave Abuse of Discretion. The well-settled rule is that this Court will not interfere with a COMELEC decision unless the COMELEC is shown to have committed grave abuse of discretion. 4 Correctly understood, grave abuse of discretion is such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law."5 Velasco imputes grave abuse of discretion on the COMELEC for canceling his COC on the sole ground that he committed false representation when he claimed that he is a registered voter of Precinct No. 103-A. This imputation directly poses to us the question: was the COMELEC ruling capriciously, whimsically, and arbitrarily made? In answering this question, we recognize at the outset that together with the cancellation of the COC that is directly before us, we have to consider the effect and impact of the inclusion/exclusion proceedings that Velasco brought before the MTC which, on appeal to the RTC, ultimately led to the denial of his listing as a voter in Sasmuan. While this inclusion/exclusion case is not before us, it was the ruling in this proceeding that the COMELEC cited as ground for the cancellation of Velasco's COC after Velasco claimed that he is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga. The COC Denial/Cancellation Proceedings. Section 74, in relation with Section 78 of the OEC governs the cancellation of, and grant or denial of due course to, COCs. The combined application of these sections requires that the facts stated in the COC by the would-be candidate be true, as any false representation of a material fact is a ground for the COC's cancellation or the withholding of due course. To quote these provisions: SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxxx

SEC. 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. The false representation that these provisions mention must necessarily pertain to a material fact, not to a mere innocuous mistake. This is emphasized by the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, cannot serve; in both cases, he or she can be prosecuted for violation of the election laws. Obviously, these facts are those that refer to a candidate's qualification for elective office, such as his or her citizenship and residence.6 The candidate's status as a registered voter similarly falls under this classification as it is a requirement that, by law (the Local Government Code), must be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins, will work for and represent the local government under which he is running. Separately from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with the intention to deceive the electorate as to the would-be candidate's qualifications for public office.7 The Voters' Inclusion/Exclusion Proceedings. The process of voters' inclusion/exclusion, as part of the voters' registration process, is provided and defined under Sections 138, 139 and 143 of the OEC. These sections provide: Sec. 138. Jurisdiction in inclusion and exclusion cases. - The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters from the list in their respective cities or municipalities. Decisions of the Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional Trial Courts within five (5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The regional trial court shall decide the appeal within ten (10) days from the time it is received and the decision shall become final and executory. No motion for reconsideration shall be entertained [As amended by Section 33 of Republic Act No. 8189 (RA 8189)]. Sec. 139. Petition for inclusion of voters in the list. - Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except one hundred five (105) days prior to a regular election or seventy-five (75) days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within fifteen (15) days after its filing.

If the decision is for the inclusion of voters in the permanent list of voters, the Board shall place the application for registration previously disapproved in the corresponding book of voters and indicate in the application for registration the date of the order of inclusion and the court which issued the same [As amended by Section 34 of RA 8189]. Section 143. Common rules governing judicial proceedings in the matter of inclusion, exclusion and correction of names of voters. (a) Petition for inclusion, exclusion, or correction of names of voters shall be filed during office hours; (b) Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon the filing of the petition. Service of such notice may be made by sending a copy thereof by personal delivery or by leaving it in the possession of a person of sufficient discretion in the residence of the challenged voter, or by registered mail. Should the foregoing procedures be not practicable, the notice shall be posted in the bulletin board of the city or municipal hall and in two (2) other conspicuous places within the city or municipality; xxx (c) A petition shall refer only one to one (1) precinct and implead the Board as respondents;. (d) No costs shall be assessed against any party in these proceedings. However, if the court should find that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses. (e) Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence. (f) The decision shall be based on the evidence presented and in no case rendered upon a stipulation of facts. x x x (g) The petition shall be heard and decided within ten (10) days from the date of its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days from receipt of the appeal. In all, cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall be immediately final and executory. [As amended by Section 32 of RA 8189] Inclusion/exclusion proceedings essentially involve the simple issue of whether a petitioner shall be included in or excluded from the list of voters based on the qualifications required by law and the facts presented to show possession of these qualifications. The Proceedings Compared.

In terms of purpose, voters' inclusion/exclusion and COC denial/cancellation are different proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the other refers to the application to be a candidate. Because of their differing purposes, they also involve different issues and entail different reliefs although the facts on which they rest may have commonalities where they may be said to converge or interface. One such commonality is on the matter of residence. Section 9 of Republic Act 8189, otherwise known as the Voters' Registration Act (VRA), requires that voters "shall have resided in the Philippines for at least one (1) year, and in the place wherein they propose to vote, at least six (6) months immediately preceding the election." The OEC, on the other hand, requires under its Section 74 that the would-be candidate state material facts such as, among others, his residence. Under the combined application of Section 65 of the OEC and Section 39 of the Local Government Code (LGC), a local official must - among others - have the same residency requirement as required under the VRA. Another point of convergence is on the candidate's status as a registered voter; a candidate for a local government position must be a registered voter in the barangay, municipality, province, or city where he or she intends to run for office. The remedies available in the two proceedings likewise differ. Velasco's remedy from the adverse decision in his petition for inclusion as voter is as provided under Section 138 of the OEC quoted above. From the MTC, the recourse is to the RTC whose decision is final and executory, correctible by the Court of Appeals only by a writ of certiorari based on grave abuse of discretion amounting to lack of jurisdiction. On the other hand, the approval of a certificate of candidacy or its denial is a matter directly cognizable by the COMELEC, with the decision of its Division reviewable by the COMELEC en banc whose decision is in turn reviewable by this Court under Rule 64 of the Rules of Court and Section 7, of Article IX-A of the 1987 Constitution. No Grave Abuse of Discretion. In the present case, the ERB denied Velasco's registration as a voter, which denial the RTC subsequently supported. As already mentioned, this denial by the RTC is, by law, final and executory. Since Velasco's knowledge of the RTC decision at the time he filed his COC is not disputed, the COMELEC concluded that he committed a material misrepresentation when he stated under oath in his COC that he is a registered voter of Sasmuan. Under these facts and legal situation, we cannot hold that the COMELEC's conclusion is legally erroneous, much less that it is tainted by grave abuse of discretion. It is a matter of record, appearing in a final RTC judgment no less, that Velasco was not a registered voter of Sasmuan at the time he filed his COC. His claim in this regard was therefore false and was a material misrepresentation. Other than his active misrepresentation, Velasco likewise was inexplicably silent about, and thus knowingly omitted any mention of, the denial of his registration. As the COMELEC did, we can only conclude that he deliberately concealed the existence of the final and executory RTC ruling when he filed his COC. He could not disclose this fact as the unavoidable consequence of disclosure was to render him unqualified to be a candidate.8

That the COMELEC relied on the RTC ruling in canceling the COC of Velasco cannot likewise be a legal error as Section 138 of the OEC is clear and categorical in its terms: "Decisions of the Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to the Regional Trial Courts within five (5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The regional trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be final and executory." We note that when Velasco sought recourse with the Court of Appeals, he did so by way of appeal under Rule 42 of the Rules of Court - a recourse that was not available to him because an RTC ruling in an inclusion/exclusion is final and executory. This led the appellate court to recognize in its Amended Decision of August 19, 2008, albeit on motion for reconsideration, that it had no jurisdiction to entertain Velasco's appeal. The Right to Vote The above discussions, particularly on the distinctions between inclusion/exclusion proceedings and COC denial/cancellation proceedings, refute and belie Velasco's position that the COMELEC improperly ruled on his right to vote when it cancelled his COC. The tribunals given authority by law and who actually ruled on whether Velasco should have the right to vote in Sasmuan, Pampanga were the ERB, the MTC, and subsequently, the RTC. The COMELEC did not so rule; it merely recognized the RTC's final and executory ruling on the matter. This conclusion is not a hairsplitting sophistry, but one based on clear distinctions drawn by the law. As above pointed out, inclusion/exclusion and COC denial/cancellation proceedings, while they may ultimately have common factual bases, are still proceedings poles apart in terms of the issues, reliefs, and remedies involved. That at some point they may converge (as in this case, where the COC denial/cancellation proceeding relied on and used the results of the voters' inclusion/exclusion proceeding) does not erase the distinctions between them. In the context of this case, it does not mean that the COMELEC - commonly with the ERB, the MTC and the RTC -ruled on Velasco's right to vote because the COMELEC relied on the latter's ruling. In Domino v. COMELEC9 - where this Court faced the contention that the decision of the first level court in an exclusion proceeding on the issue of residence is final and conclusive on the COMELEC hearing a COC denial/cancellation proceeding under Section 78 of the OED - we ruled that the factual findings of the trial court and its resultant conclusions in the inclusion/exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive on and do not rise to the level of a res judicata ruling with respect to the COMELEC.10 The reason is that inclusion/exclusion proceedings, while judicial in character, are summary proceedings.11 We further added that a decision in an inclusion/exclusion proceeding does not operate as a bar to any future action in any other election that a party may take concerning his right to be registered as a voter.12 Otherwise stated, a ruling on the right to vote by the trial court for a specific election is binding on the COMELEC. By clear implication, the COMELEC itself does not rule on the right to vote by recognizing in a Sec. 78 COC denial/cancellation proceeding the final and executory ruling by a court, as mandated by law, in an inclusion/exclusion

proceeding. Velasco's Qualifications/Disqualifications as a Voter Whether Velasco possesses all the qualifications and none of the disqualifications to register as a voter of Sasmuan, Pampanga is a matter that is not directly before us as his inclusion as a Sasmuan voter is not before us. As the COMELEC did, we rely on the final and executory RTC ruling excluding Velasco from the Sasmuan voters' list. We observe, however, that at the time he filed his application for registration with the COMELEC local office on October 13, 2006, Velasco was a dual citizen. The records show that Velasco renounced his American citizenship only on March 28, 2007, 13 although he secured his dual citizenship status as early as July 31, 2006 at the Philippine Consulate in San Francisco, California.14 Under his dual citizenship status, he possessed the right to vote in Philippine elections through the absentee voting scheme under Republic Act No. 9189 (the Oversees Absentee Voting Law or the OAVL)15 as we ruled in Nicolas-Lewis v. COMELEC.16 In Macalintal v. COMELEC,17 we significantly said that absentee voters are exempted from the constitutional residency requirement for regular Philippine voters. Thus, the residency requirements we cited above under the VRA and the LGC do not apply to Velasco, assuming he registered as a dual citizen/absentee voter. By law, however, the right of dual citizens who vote as absentee voters pertains only to the election of national officials, specifically: the president, the vice-president, the senators, and party-list representatives.18 Thus, Velasco was not eligible to vote as an absentee voter in the local election of 2007. In fact, the records do not show that Velasco ever registered as an absentee voter for the 2007 election.19 On the other hand, Velasco could not have registered as a regular voter because he did not possess the residency requirement of one-year stay in the Philippines and six-months stay in the municipality where he proposed to vote at the time of the election. The records show that he arrived in the Philippines only on September 14, 2006 and applied for registration on October 13 of that year20 for the election to be held in May of the following year (2007). To hark back and compare his case to a similar case, Coquilla v. COMELEC,21 Velasco, before acquiring his dual citizenship status, was an American citizen who had lost his residency and domiciliary status in the Philippines; whose sojourn in the Philippines was via a visitor's visa; and who never established permanent residence in the Philippines. Like Coquilla before him, Velasco could not have therefore validly registered as a regular voter eight months before the May 2007 local elections. The Due Process Issue. Finally, we see no merit in Velasco's argument that the COMELEC annulled his proclamation as Mayor without due process. The nullification of his proclamation as a winning candidate was an outcome - a necessary legal consequence - of the cancellation of his COC pursuant to Section 78 of the OEC. A COC cancellation proceeding essentially partakes of the nature of a disqualification case.22 In the present case, Velasco filed an Answer to Panlaqui's petition to cancel or deny due course to his (Velasco's) COC; hence, he was afforded the opportunity to be heard in the cancellation of his COC.

Under the combined application of Sections 623 and 724 of Republic Act No. 6646,25 candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. If the disqualification or COC cancellation/denial case is not resolved before election day, the proceedings shall continue even after the election and the proclamation of the winner.26 In the meanwhile, the candidate may be voted for and be proclaimed if he or she wins, but the COMELEC's jurisdiction to deny due course and cancel his or her COC continues. This rule applies even if the candidate facing disqualification is voted for and receives the highest number of votes,27 and even if the candidate is proclaimed and has taken his oath of office. 28 The only exception to this rule is in the case of congressional or senatorial candidates with unresolved disqualification or COC denial/cancellation cases after the elections. Pursuant to Section 17 of Article VI of the Constitution, the COMELEC ipso jure loses jurisdiction over these unfinished cases in favor of the respective Senate or the House of Representatives electoral tribunals after the candidates take their oath of office.29 Under these circumstances, Velasco's claim of denial of due process is misplaced since he was given the opportunity to be heard in a proceeding that would result in the annulment of his proclamation; due process was duly served because its essence is the opportunity to be heard and this was fully given to Velasco.30 In sum, the COMELEC resolutions canceling Velasco's COC are procedurally and substantively correct, thus negating the grave abuse of discretion that Velasco alleges. As our final point, we are aware that Velasco won the May 14, 2007 mayoralty election in Sasmuan. We recognize, too, that we have ruled in the past that a candidate's victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidate's certificate of candidacy. We said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC.31 The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate's eligibility and fitness for office. The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious, candidates

may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements. In the process, the rule of law suffers; the clear and unequivocal legal command, framed by a Congress representing the national will, is rendered inutile because the people of a given locality has decided to vote a candidate into office despite his or her lack of the qualifications Congress has determined to be necessary. In the present case, Velasco is not only going around the law by his claim that he is registered voter when he is not, as has been determined by a court in a final judgment. Equally important is that he has made a material misrepresentation under oath in his COC regarding his qualification. For these violations, he must pay the ultimate price - the nullification of his election victory. He may also have to account in a criminal court for making a false statement under oath, but this is a matter for the proper authorities to decide upon. We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will. The balance must always tilt in favor of upholding and enforcing the law. To rule otherwise is to slowly gnaw at the rule of law. WHEREFORE, we DISMISS the petition for lack of merit. The Status Quo Order we issued is hereby ordered IMMEDIATELY LIFTED. We DECLARE that there is no more legal impediment or obstacle to the implementation of the assailed COMELEC resolutions. No costs. SO ORDERED.