To be sure, an oath of office is a qualifying requirement for a public
office; a prerequisite to the full investiture with the office. It is
only when the public officer has satisfied the prerequisite of oath that
his right to enter into the position becomes plenary and complete.33
However, once proclaimed and duly sworn in office, a public officer is
entitled to assume office and to exercise the functions thereof. The
pendency of an election protest is not sufficient basis to enjoin him
from assuming office or from discharging his functions.34 Unless his election is annulled by a final and executory decision,35
or a valid execution of an order unseating him pending appeal is
issued, he has the lawful right to assume and perform the duties of the
office to which he has been elected.
Monday, December 8, 2014
G.R. No. 146875 July 14, 2003 KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA, JORGE BANAL, Chairman of the Special Investigation Committee on Administrative Cases Against Elected Barangay Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City Mayor of Quezon City, petitioners, vs. BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.
lecaroz v. sandiganbayan
To
be sure, an oath of office is a qualifying requirement for a public
office; a prerequisite to the full investiture with the office. 15
Only when the public officer has satisfied the prerequisite of oath
that his right to enter into the position becomes plenary and complete.
Until then, he has none at all. And for as long as he has not qualified,
the holdover officer is the rightful occupant. It is thus clear in the
present case that since Red never qualified for the post, petitioner
Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a
carry over capacity, and was in every aspect a de jure officer, 16 or at least a de facto officer 17
entitled to receive the salaries and all the emoluments appertaining to
the position. As such, he could not be considered an intruder and
liable for encroachment of public office. 18
midterm in election law
MIDTERM
EXAMINATION IN ELECTION LAW
Read
the facts carefully. Answer briefly and concisely the questions that follow.
Always explain or support your answer.
CASE NO. 1: The petitioner, Alfredo Guieb and the private
respondent, Manuel Asuncion, were candidates for the position of Punong
Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan, in the barangay
election of 9 May 1994.
After the canvass of votes in the said barangay, the former was proclaimed as
the winning candidate. The latter then seasonably filed an election protest
with the Municipal Trial Court (MTC) of Sta. Barbara, Pangasinan.
On 27 May 1994, the MTC, per Judge Lilia
C. EspaƱol, rendered a decision confirming the proclamation of the petitioner
and dismissing the protest of the private respondent.
The
private respondent appealed the decision to the Regional Trial Court (RTC) of Dagupan City. The case was assigned to Branch 42
thereof.
In its decision of 31
August 1994, the RTC, per respondent Judge Luis M. Fontanilla, reversed the
decision of the MTC, annulled the proclamation of the petitioner, and declared
the private respondent as the winning candidate with a plurality of four votes
over the petitioner.
After
the petitioner's motion for reconsideration of the decision was denied on 25 November 1994, the
private respondent immediately filed a motion for the issuance of a writ of
execution.
In
its order of 8 December 1994,
5 the RTC declared that the motion should be properly filed with the court of
origin and that the decision of 31
August 1994 had already become final; it then ordered the remand of
the records of the case to the MTC of Sta. Barbara, Pangasinan, for proper
disposition.
On 12 December 1994, the petitioner
filed with this Court a motion for extension of time to file a petition for
review on certiorari. On 29
December 1994, he sent by registered mail his petition, which this
Court received only on 25
January 1995. It turned out, however, that his motion for extension
of time to file a petition had already been denied on 4 January 1995 for his failure to
submit an affidavit of service of that motion. On 8 February 1995, he filed a motion for the
reconsideration of the denial.
Meanwhile, on 20 December 1994, the
private respondent filed with the MTC a motion for the issuance of a writ of
execution. 6
In its order of 19 January 1995, the MTC
deferred action on the said motion and required the petitioner's counsel to
inform the court of the status of his petition with this Court. For failure of
the petitioner's counsel to comply with the said order, the court issued an
order on 7 February 1995 granting the issuance of a writ of execution.
On 13 February 1995,
however, the court received the said counsel's Compliance dated 9 February 1995 9 wherein he
informed the court of the petitioner's motion to reconsider this Court's
resolution denying the motion for extension of time to file his petition.
In the resolution of 8 February 1995, this Court
required the respondent to comment on the petition.
On
16 February 1995,
the petitioner filed with the MTC an Urgent Motion to Stay and/or Suspend
Execution. This motion was, however, denied
on the ground that the writ, having been hand-carried by the private
respondent to the office of the sheriff, must have already been implemented
and, therefore, the motion to stay or suspend the same has become moot and
academic.
On 20 March 1995, the sheriff returned the writ of execution
with the information that in the presence of a barangay kagawad and barangay
residents, he enforced the writ and proclaimed the private respondent as Punong
Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan.
QUESTION 1.On the basis of the above facts,
who should be the rightful punong barangay of Nilombot? Support your answer.
ANSWE NO. 1: Alfredo Guieb is the
rightful punong barangay.The decision in the MTC in favor of Guieb had become
final, considering that his opponent made the wrong appeal to the RTC.( GUIEB vs. FONTANILLA, ET AL. (G.R. No. 118118 August 14, 1995)
CASE NO. 2: Facts: In its Minute Resolution No. 96-3076 of 29 October 1996, the
Commission on Elections (COMELEC) resolved to file an information for violation
of Section 261(i) of the Omnibus Election Code against private respondents
Diosdada Amor, a public school principal, and Esbel Chua and Ruben Magluyoan,
both public school teachers, for having engaged in partisan political
activities. The COMELEC authorized its Regional Director in Region VIII to
handle the prosecution of the cases.
Forthwith,
nine informations for violation of Section 261(i) of the Omnibus Election were
filed with Branch 23 of the Regional Trial Court of Alien, Northern
Samar, and docketed therein as follows:
a) Criminal Cases Nos. A-1439 and
A-1442, against private respondents Diosdada Amor, Esbel Chua, and Ruben
Magluyoan.
b) Criminal Case No. A-1443, against
private respondents Esbel Chua and Ruben Magluyoan.
c) Criminal Cases Nos. A-1444 and
A-1445, against private respondent Esbel Chua only;
d) Criminal Cases Nos. A-1446 to
A-1449, against private respondent Diosdada Amor only.
In
an Order 2 issued on 25 August 1997, respondent Judge Tomas B. Noynay, as
presiding judge of Branch 23, motu proprio ordered the records of the cases to
be withdrawn and directed the COMELEC Law Department to file the cases with the
appropriate Municipal Trial Court on the ground that pursuant to Section 32 of
B.P. Blg. 129 as amended by R.A. No. 7691, the Regional Trial Court has no
jurisdiction over the cases since the maximum imposable penalty in each of the
cases does not exceed six years of imprisonment. Pertinent portions of the
Order read as follows:
It
is worth pointing out that all the accused are uniformly charged for [sic]
Violation of Sec. 261(i) of the Omnibus Election Code, which under Sec. 264 of
the same Code carries a penalty of not less than one (1) year but not more than
six (6) years of imprisonment and not subject to Probation plus
disqualification to hold public office or deprivation of the right of suffrage.
Sec.
31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as Amended
by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32. Jurisdiction
Metropolitan Trial Courts, Municipal Circuit Trial Courts, Municipal Trial
Courts in Criminal Cases Except [in] cases falling within the exclusive
original jurisdiction of the Regional Trial Courts and the Sandiganbayan, the
Municipal Trial Courts, Metropolitan Trial Courts and the Municipal Circuit
Trial Courts shall exercise:
(1) Exclusive original jurisdiction over
all violations of city or municipal ordinance committed within their respective
territorial jurisdiction; and
(2) Exclusive original jurisdiction over
all offenses punishable with an imprisonment of not exceeding six (6) years
irrespective of the amount or fine and regardless of other imposable accessory
and other penalties including the civil liability arising from such offenses or
predicated thereon, irrespective of time [sic], nature, value and amount
thereof, Provided, However, that in offenses including damages to property
through criminal negligence, they shall have exclusive original jurisdiction
thereof.
In light of the
foregoing, this Court has therefore, no jurisdiction over the cases filed
considering that the maximum penalty imposable did not exceed six (6) years.
The
two motions for reconsideration
separately filed by the COMELEC Regional Director of Region VIII and by the
COMELEC itself through its Legal Department having been denied by the public
respondent in the Order of 17
October 1997, the petitioner
filed this special civil action. It contends that public respondent "has
erroneously misconstrued the provisions of Rep. Act No. 7691 in arguing that
the Municipal Trial Court has exclusive original jurisdiction to try and decide
election offenses" because pursuant to Section 268 of the Omnibus Election
Code and this Court's ruling in "Alberto [sic] vs. Judge Juan Lavilles,
Jr.," Regional Trial Courts have the exclusive original jurisdiction over
election offenses.
QUESTION: Which Court, MTC or RTC has
jurisdiction over the said offenses? Explain your ANSWER.
ANSWER NO.2: The RTC has jurisdiction. “We have explicitly
ruled in Morales v. Court of Appeals[i][7] that by virtue
of the exception provided for in the opening sentence of Section 32, the
exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts does not cover those criminal cases
which by specific provisions of law fall within the exclusive original
jurisdiction of Regional Trial Courts and of the Sandiganbayan, regardless of
the penalty prescribed therefor.
Otherwise stated, even if those excepted cases are punishable by
imprisonment of not exceeding six (6) years (i.e., prision
correccional, arresto mayor, or arresto menor), jurisdiction thereon
is retained by the Regional Trial Courts or the Sandiganbayan, as the case may
be.
Among the examples cited in Morales
as falling within the exception provided for in the opening sentence of Section
32 are cases under (1) Section 20 of B.P. Blg. 129; (2) Article 360 of the
Revised Penal Code, as amended; (3) the Decree on Intellectual Property;[ii][8]
and (4) the Dangerous Drugs Act of 1972,[iii][9]
as amended.
Undoubtedly, pursuant to
Section 268 of the Omnibus Election Code, election offenses also fall within
the exception.
As we stated in Morales,
jurisdiction is conferred by the Constitution or by Congress. Outside the cases enumerated in Section 5(2)
of Article VIII of the Constitution, Congress has the plenary power to define,
prescribe, and apportion the jurisdiction of various courts. Congress may thus provide by law that a
certain class of cases should be exclusively heard and determined by one
court. Such law would be a special law
and must be construed as an exception to the general law on jurisdiction of
courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary
Reorganization Act of 1980. R.A. No. 7691 can by no means be considered as a special law on
jurisdiction; it is merely an amendatory law intended to amend specific
sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not have the effect of repealing laws vesting upon
Regional Trial Courts or the Sandiganbayan exclusive original jurisdiction to
hear and decide the cases therein specified.
That Congress never intended that R.A. No. 7691 should repeal such special provisions is indubitably
evident from the fact that it did not touch at all the opening sentence of
Section 32 of B.P. Blg. 129 providing for the exception.
It is obvious that respondent
judge did not read at all the opening sentence of Section 32 of B.P. Blg. 129,
as amended. It is thus an opportune
time, as any, to remind him, as well as other judges, of his duty to be
studious of the principles of law,[iv][10] to
administer his office with due regard to the integrity of the system of the law
itself,[v][11] to be
faithful to the law, and to maintain professional competence.[vi][12]” COMMISSION
ON ELECTIONS, petitioner,vs. HON. TOMAS B. NOYNAY, Acting Presiding Judge,
Regional Trial Court, Branch 23, Allen, Northern Samar, and DIOSDADA F. AMOR,
ESBEL CHUA, and RUBEN MAGLUYOAN, respondents. (G.R. No. 132365 July 9, 1998)
CASE NO. 3: Facts: After the results of the May 8, 1995 elections were
canvassed in 73 precincts in the Municipality of Matnog, Province of Sorsogon,
petitioner Gerry B. Garay, a candidate for vice-mayor, was credited with 5,411
votes and private respondent Jaime Gata, Jr., his rival, 5,391 or a margin of
twenty (20) votes in favor of petitioner. The said results, however, excluded
the votes from precinct 30-A of Barangay Culasi, Matnog, where armed men
forcibly took the ballot box together with the election returns, other election
papers, documents and/or paraphernalia.
Because the votes in
precinct 30-A would obviously affect the standing of the said candidates, the
Municipal Board of Canvassers (MBC) did not proclaim the winner. Failing to
convince said Board to proclaim him by virtue of a certificate of votes issued
by the Board of Election Inspectors (BEI) showing he garnered 116 votes against
68 votes for Garay in said precinct, respondent Gata brought the matter to the
respondent Commission. In his appeal, 3 respondent Gata included a copy of the
Tally Board, duly authenticated by the BEI, showing the same count as the
Certificate of Votes: that is, Gata 116
votes and Garay 68 votes. If these were
added to the already canvassed votes, Gata would win by a 28-vote margin.
In
the meantime, while the said appeal was pending, respondent COMELEC upon recommendation of Comm. Julio
Desamito conducted a special election in
precinct 30-A, 4 on the ground of failure of election due to the loss of the
ballot box and the election documents. Both petitioner Garay and respondent
Gata actively participated in the election which was held on June 7, 1995. Petitioner won handily
in the said election and was thereafter proclaimed Vice-Mayor of Matnog.
The
Comelec First Division denied due course to the appeal because of appellant's
(Gata) failure "to furnish the Commission all pertinent documents
necessary for the latter to rule on the matter." Respondent Gata's motion for
reconsideration of this Comelec action
is still pending before the Comelec First Division. Subsequently, the COMELEC
En Banc issued a Resolution promulgated on August 7, 1995 annulling the special election
and directing the MBC to reconvene and to include "in the canvass, the
votes reflected on the Tally Board submitted by the Board of Election
Inspectors . . . ." As a result, respondent Gata was declared winner. The
Commissioner En Banc said that it was "convinced without taint of any
doubt that the votes shown in the tally board and certificate of votes reflect
the true and genuine will of the electorate. . . ."
QUESTION: 1.Discuss whether the COMELEC EN
BANC is correct in its action.
ANSWER NO 3: Comelec en banc is wrong. After
judicious deliberation and consultation, we hold that the Comelec En Banc gravely
abused its discretion when it decided to set aside and annul the special
election it had earlier called and conducted because of failure of election due
to the forcible taking by armed men of the ballot box together with the
election returns and other election documents and paraphernalia.
The respondent Commission's plea that it is "convinced without
taint of any doubt that the votes shown in the tally board and certificate of
votes reflect the true and genuine will of the electorate" is weak and
unpersuasive because the Certificate of Votes and the Tally Board were already
in the possession of the COMELEC before it decided to call the special election. Note that private respondent Gata presented the Certificate before the
Municipal Board of Canvassers (MBC) during the canvassing. When the latter rejected it, Gata appealed to the COMELEC from the said
ruling, attaching to his appeal a copy of the Tally Board. Nevertheless, the respondent Commission still
decided to hold the special election.
The Certificate of Votes presented by Gata may have been obtained by him pursuant to
Section 16 of R.A. No. 6646 (The Electoral Reform Law of 1987).[vii][7]
Thus, when the said Certificate was rejected by the MBC, it must
have been because Gata
not only failed to comply with the procedure for its identification and offer
as mandated in Section 17 of R.A. No. 6646 which reads:
"SEC. 17.
Certificate of Votes as Evidence. - The provisions of Sections 235 and
236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall
be admissible in evidence to prove tampering, alteration, falsification or any
anomaly committed in the election returns concerned, when duly authenticated by
testimonial or documentary evidence presented to the board of canvassers by at
least two members of the board of election inspectors who issued the
certificate: Provided, That failure to present any certificate of votes shall
not be a bar to the presentation of other evidence to impugn the authenticity
of the election returns."
but also because a
certificate of votes can never be a valid basis for canvass. According to Section 17, a certificate of
votes can only be "evidence to prove tampering, alteration, falsification
or any other anomaly committed in the election returns concerned, when duly
authenticated x x x." A certificate
of votes does not constitute sufficient evidence of the true and genuine
results of the election; only election returns are, pursuant to Sections 231,
233-236, and 238 of B.P. Blg. 881.[viii][8]
In like manner, neither is the tally board sufficient evidence of
the real results of the election.
Moreover, in the instant case, the fact that the tally board made its appearance
only when Gata
attached it to his appeal makes it highly suspect and therefore
unreliable. Such appearance has not been
convincingly explained even by Lyn M. Garil, chairman of the BEI. Her affidavit that the Tally Board
"dropped to the floor" as the armed men left the polling place is
hearsay. Section 217 of B.P. Blg. 881
(The Omnibus Election Code) requires that the tally board or sheet shall,
together with other election documents, be placed inside the ballot box:
"SEC. 217. Delivery of the ballot boxes,
keys and election supplies and documents. - Upon the termination of the
counting of votes, the board of election inspectors shall place in the
compartment for valid ballots, the envelopes for used ballots hereinbefore
referred to, the unused ballots, the tally board or sheet, a copy of the
election returns, and the minutes of its proceedings, and then shall lock the
ballot box with three padlocks and such safety devices as the Commission may
prescribe. Immediately after the box is
locked, the three keys of the pad locks in three separate envelopes and shall
be sealed and signed by all the members of the board of election
inspectors. The authorized
representatives of the Commission shall forthwith take delivery of said
envelopes, signing a receipt therefore, and deliver without delay one envelope
to the provincial treasurer, another to the provincial fiscal and the other to
the provincial election supervisor.
The ballot box, all supplies of the board of
election inspectors and all pertinent papers and documents shall immediately be
delivered by the board of election inspectors and the watchers to the city or
municipal treasurer who shall keep his office open all night on the day of
election if necessary for this purpose, and shall provide necessary facilities
for said delivery at the expense of the city or municipality. The book of voters shall be returned to the
election registrar who shall keep it under his custody. The treasurer and the election registrars, as
the case may be, shall on the day after the election require the members of the
board of election inspectors who failed to send the objects referred to herein
to deliver the same to him immediately and acknowledge receipt thereof in
detail. "(Sec. 161, 1978 EC).
Since the ballot box, and necessarily, all the election documents
contained therein, had been forcibly taken and had never been recovered, then
the tally board must have been likewise lost.
The fact that the Comelec decided to hold the special election
shows that it was not convinced of the authenticity and/or sufficiency of Gata's "certificate
of votes" and "tally board."
The special election was called pursuant to Section 6 of the
Omnibus Election Code, which requires notice and hearing before a special
election may be held. There was no
objection from any candidate or political party to the holding of the special
election (as none had questioned it). In
fact, the main protagonists - the petitioner and private respondent Gata - even actively participated in the said
election. The latter's active
participation therein rendered his appeal from the ruling of the MBC moot and
placed him in estoppel from relying again on his "certificate of
votes" and "tally board." Therefore, the First Division of the
COMELEC should have simply dismissed Gata's
appeal on the ground that it had become moot and academic, instead of
dismissing it on the merits because of Gata's
failure to "furnish the Commission all pertinent documents necessary for
[the Division] to rule on the matter."
The COMELEC En Banc committed a more serious error,
amounting to grave abuse of discretion, when it reversed its First Division and
gave due course to the appeal. Worse, it
annulled the special election had declared that Gata's
"certificate of votes" and "tally board" reflected the true
and genuine will of the electorate." The latter declaration effectively
overturned its earlier decision to hold the special election which decision was
obviously based on its finding that the said "certificate of votes"
and "tally board," then already before it, were insufficient or
inadequate to prove that there was failure of election. Moreover, the decision to hold the special
election and long become final; such election having already been held and the
winner proclaimed, the COMELEC therefore had lost its jurisdiction to revoke
and set aside that decision.
Additionally, it might be argued that in upholding the Certificate of
Votes and Tally Board as reflective of the will of the electorate, and
annulling the special elections, the Comelec also in effect declared without
adequate basis, said special elections as not reflective of such popular
mandate.
On the other hand, if the position of the COMELEC were to be
sustained, then we would in effect be ruling that it acted without or in excess
of jurisdiction or with grave abuse of discretion when it called and conducted
the special election, which was not at all raised as an issue in this
case. So too, we would permit the
COMELEC to reverse and set aside a final and already executed decision to hold
the special election; and allow it to decide a controversy - viz., the
appeal from a ruling of the MBC - which had in fact and in law been rendered
moot and academic by the special election.
While it is true that the respondent Commission has the power to
annul special elections or declare a failure of special elections where it is
shown that no voting had taken place or the election therein resulted in a
failure to elect; and the votes not cast would affect the results of
the.election,[ix][9]
nonetheless, in the instant case, the June 17, 1995 electoral exercise was not
a failed election, as voting had taken place and the election did not result in
a failure to elect. In other words, the
people spoke freely and honestly in a contest voluntarily participated in by
both parties herein. Hence, the popular
will as clearly expressed in the votes cast and counted should prevail over
dubious election documents of a previous failed election in the same precinct. Since the validity and binding force of this
special election has not been put at issue and since for all it is worth, such
electoral exercise, both in the casting and canvassing of votes, was conducted
regularly and peacefully, then this Court's duty is to resolve the issue
"in a manner that would give effect to the will of the majority" as
expressed in such special election, for it is merely sound public policy to
cause elective offices to be filled by those who are the unquestioned choice of
the majority.[x][ (GERRY B.
GARAY vs. COMMISSION ON ELECTIONS, ET AL. G.R. No. 121331 August 28, 1996)
CASE NO. 4:FACTS: Petitioner SULTAN
MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were among the
candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992
election. There were sixty-seven (67) precincts in the municipality.
As
was heretofore stated, voter turnout was rather low, particularly in forty-nine
(49) precincts where the average voter turnout was 22.26%, i.e., only 2,330 out
of 9,830 registered voters therein cast their votes. Five (5) of these
precincts did not conduct actual voting at all.
Consequently,
COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts
which failed to function during election day. On 30 July 1992 another special election was held
for a sixth precinct.
In
the interim, petitioner filed a petition seeking the annulment of the special
election conducted on 30 May
1992 alleging various irregularities such as the alteration,
tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the petition
moot since the votes in the subject precincts were already counted.
Other
petitions seeking the declaration of failure of election in some or all
precincts of Lumba-Bayabao were also filed with COMELEC by other mayoralty
candidates, to wit:
1. SPA No. 92-324: On 6 June 1992,
private respondent Datu Gamba Dagalangit filed an urgent petition praying for
the holding of a special election in Precinct No. 22-A alleging therein that
when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition
was granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4
2. SPC No. 92-336: On 16 June 19992,
Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare
failure of election in twenty-nine (29) more precincts as a result of alleged
tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was
dismissed. COMELEC ruled that there must be a situation where there is absolute
inability to vote before a failure of election can be declared. 7 Since voting
was actually conducted in the contested precincts, there was no basis for the
petition.
3. SPA No 92-368: On 20 June 1992,
private respondent filed another petition, this time seeking to exclude from
the counting the ballots cast in six (6) precincts on the ground that the
integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC
considered the petition moot, as the issue raised therein was related to that
of SPA No. 92-311 which on 9
July 1992 was already set aside as moot. 9
4. SPA No. 92-347: On 1 July 1992,
Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which
in the main sought the declaration of failure of election in all sixty-seven
(67) precincts of Lumba-Bayabao, Lanao del Sur, on the ground of massive
disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling that
the allegations therein did not support a case of failure of election.
On 8 July
1992, petitioner filed a motion to intervene in these four
(4) petitions. 12 But COMELEC treated the same as a motion for reconsideration
and promptly denied it considering that under the COMELEC Rules of Procedure
such motion was a prohibited pleading. 13
Thereafter,
a new board of Election Inspectors was formed to conduct the special election
set for 25 July 1992.
Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board
convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was
proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner
instituted the instant proceedings seeking the declaration of failure of
election in forty-nine (49) precincts where less than a quarter of the
electorate were able to cast their votes. He also prayed for the issuance of a
temporary restraining order to enjoin private respondent from assuming office.
On 10 August 1992, petitioner
lodged an election protest with the Regional trial Court of Lanao del Sur
disputing the result not only of some but all the precincts of Lumba-Bayabao,
del Sur.
Respondents,
on the other hand, assert that with the filing of an election protest,
petitioner is already deemed to have abandoned the instant petition.
It
may be noted that when petitioner filed his election protest with the Regional
Trial Court of Lanao del Sur, he informed the trial court of the pendency of
these proceedings. Paragraph 3 of his protest states "[T]hat on August 3, 1992, your
protestant filed a Petition for Certiorari with the Supreme Court . . .
docketed as G.R. No. 106270 assailing the validity of the proclamation of the
herein protestee. . . ." Evidently,
petitioner did not intend to abandon his recourse with this Court. On the
contrary, he intended to pursue it. Where only an election protest ex abundante
ad cautela is filed, the Court retains jurisdiction to hear the petition
seeking to annul an election.
QUESTION:1. Whether
respondent COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction in denying motu proprio and without due notice and hearing the
petitions seeking to declare a failure of election in some or all of the
precincts in Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has
meritorious grounds in support thereto, viz., the massive disenfranchisement of
voters due to alleged terrorism and unlawful clustering of precincts, which
COMELEC should have at least heard before rendering its judgment.
2. Is a low turn out of voters in an election
a ground for a failure of election?
Answer NO. 4: The main issue is whether respondent COMELEC acted with grave abuse
of discretion amounting to lack of jurisdiction in denying motu proprio and
without due notice and hearing the petitions seeking to declare a failure of
election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur. After
all, petitioner argues, he has meritorious grounds in support thereto, viz.,
the massive disenfranchisement of voters due to alleged terrorism and unlawful
clustering of precincts, which COMELEC should have at least heard before
rendering its judgment.
Incidentally, a petition to annul
an election is not a pre-proclamation controversy. Consequently, the
proclamation of a winning candidate together with his subsequent assumption of
office is not an impediment to the prosecution of the case to its logical
conclusion. 17
Under the COMELEC Rules of
Procedure, within twenty-four (24) hours from the filing of a verified petition
to declare a failure to elect, notices to all interested parties indicating
therein the date of hearing should be served through the fastest means
available. 18 The hearing of the case will also be summary in nature. 19
Based on the foregoing, the clear
intent of the law is that a petition of this nature must be acted upon with
dispatch only after hearing thereon shall have been conducted. Since COMELEC
denied the other petitions 20 which sought to include forty-three (43) more
precincts in a special election without conducting any hearing, it would appear
then that there indeed might have been grave abuse of discretion in denying the
petitions.
However, a closer examination of
the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was
lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of
the Philippines, indicates otherwise. It reads
Sec. 2. Failure of election. If, on
account of force majeure, violence, terrorism, fraud or other analogous causes
the election in any precinct has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after
the voting and during the preparation and the transmission of the election returns
or in the custody of canvass thereof, such election results in a failure to
elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and hearing,
call for the holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but
not later than thirty (30) days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Before COMELEC can act on a
verified petition seeking to declare a failure of election, two (2) conditions
must concur: first, no voting has taken place in the precinct or precincts on
the date fixed by law or, even if there was voting, the election nevertheless
results in failure to elect; and, second, the votes not cast would affect the
result of the election. 21
In the case before us, it is
indubitable that the votes not cast will definitely affect the outcome of the
election. But, the first requisite is missing, i.e., that no actual voting took
place, or even if there is, the results thereon will be tantamount to a failure
to elect. Since actual voting and election by the registered voters in the
questioned precincts have taken place, the results thereof cannot be
disregarded and excluded. 22 COMELEC therefore did not commit any abuse of discretion,
much less grave, in denying the petitions outright. There was no basis for the
petitions since the facts alleged therein did not constitute sufficient grounds
to warrant the relief sought. For, the language of the law expressly requires
the concurrence of these conditions to justify the calling of a special
election. 23
Indeed, the fact that a verified
petition is filed does not automatically mean that a hearing on the case will
be held before COMELEC will act on it. The verified petition must still show on
its face that the conditions to declare a failure to elect are present. In the
absence thereof, the petition must be denied outright.
Considering that there is no
concurrence of the two (2) conditions in the petitions seeking to declare
failure of election in forty-three (43) more, precincts, there is no more need
to receive evidence on alleged election irregularities.
Instead, the question of whether
there have been terrorism and other irregularities is better ventilated in an
election contest. These irregularities may not as a rule be invoked to declare
a failure of election and to disenfranchise the electorate through the misdeeds
of a relative few. 24 Otherwise, elections will never be carried out with the
resultant disenfranchisement of innocent voters as losers will always cry fraud
and terrorism.
There can be failure of election
in a political unit only if the will of the majority has been defiled and
cannot be ascertained. But, if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires
that a majority of registered voters must cast their votes. All the law
requires is that a winning candidate must be elected by a plurality of valid
votes, regardless of the actual number of ballots cast. 25 Thus, even if less
than 25% of the electorate in the questioned precincts cast their votes, the
same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
MOHAMAD L. MITMUG vs. COMMISSION ON ELECTIONS, ET AL. (G.R. No. 106270-73 February 10, 1994)
CASE NO. 5: FACTS: RICARDO
"BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in
Calamba, Laguna, during the 8
May 1995 elections. After obtaining a majority of some 24,000
votes Lajara was proclaimed winner by
the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed with the
Commission on Elections (COMELEC) a Petition to Declare Failure of Election and
to Declare Null and Void the Canvass and Proclamation because of alleged
widespread frauds and anomalies in casting and counting of votes, preparation
of election returns, violence, threats, intimidation, vote buying, unregistered
voters voting, and delay in the delivery of election documents and
paraphernalia from the precincts to the Office of the Municipal Treasurer.
Canicosa particularly averred that: (a) the names of the registered voters did
not appear in the list of voters in their precincts; (b) more than one-half of
the legitimate registered voters were not able to vote with strangers voting in
their stead; (c) he was credited with less votes than he actually received; (d)
control data of the election returns was not filed up in some precincts; (e)
ballot boxes brought to the Office of the Municipal Treasurer were unsecured,
i.e., without padlocks nor self-locking metal seals; and, (f) there was delay
in the delivery of election returns. But the COMELEC en banc dismissed the
petition on the ground that the allegations therein did not justify a
declaration of failure of election.
QUESTIONS:
1.Canicosa bewails that
the names of the registered voters in the various precincts did not appear in
their respective lists of voters. What is the proper remedy on this aspect?
2.Canicosa also avers that
more than one-half (1/2) of the legitimate registered voters were not able to
vote, instead, strangers voted in their behalf. Is this a ground for failure of
election?
3.Canicosa complains that
the election returns were delivered late and the ballot boxes brought to the
Office of the Municipal Treasurer unsecured, i.e., without padlocks nor
self-locking metal seals. Is this also a ground for failure of election?
4.Canicosa finally insists
that it was error on the part of COMELEC sitting en banc to rule on his
petition. He maintains that his petition should have first been heard by a
division of COMELEC and later by the COMELEC en banc upon motion for
reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution. Is his
contention correct?
5.In totality, was there a
failure of election, in the case at bar?
ANSWER NO 5: Indeed, the grounds cited by Canicosa do
not warrant a declaration of failure of election. Section 6 of BP Blg. 881, otherwise known as
the Omnibus Election Code, reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of
the election returns or in the custody or canvass thereof, such election
results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after
due notice and hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or
failure to elect.
Clearly, there are only
three (3) instances where a failure of election may be declared, namely: (a) the election in any polling place
has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before
the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous
causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other
analogous causes.
None of the grounds invoked
by Canicosa falls under any of those enumerated.
Canicosa bewails that the
names of the registered voters in the various precincts did not appear in their
respective lists of voters. But this is
not a ground to declare a failure of election.
The filing of a petition for declaration of failure of election
therefore is not the proper remedy. The
day following the last day for registration of voters, the poll clerk delivers
a certified list of voters to the election registrar, election supervisor and
the COMELEC, copies of which are open to public inspection. On the same day, the poll clerk posts
a copy of the list of registered voters in each polling place. Each member of the board of election
inspectors retains a copy of the list which may be inspected by the public in
their residence or in their office during office hours.[xi][2]
Fifteen (15) days before the
regular elections on 8 May
1995 the final list of voters was posted in each precinct pursuant
to Sec. 148 of RA No. 7166. Based on the lists thus posted Canicosa could
have filed a petition for inclusion of registered voters with the regular
courts. The question of inclusion or
exclusion from the list of voters involves the right to vote [xii][3] which
is not within the power and authority of COMELEC to rule upon. The determination of whether one has the
right to vote is a justiciable issue properly cognizable by our regular
courts. Section 138, Art. XII, of the Omnibus
Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases.
- The municipal and metropolitan
trial courts shall have original and exclusive jurisdiction over all matters of
inclusion and exclusion of voters from the list in their respective
municipalities or cities. Decisions of
the municipal or metropolitan trial courts may be appealed directly by the
aggrieved party to the proper regional trial court within five days from
receipts of notice thereof, otherwise said decision of the municipal or
metropolitan trial court shall decide the appeal within ten days from the time the
appeal was received and its decision shall be immediately final and
executory. No motion for reconsideration shall be
entertained by the courts (Sec. 37, PD
1896, as amended).
On the other hand, Canicosa
could have also filed with the COMELEC a
verified complaint seeking the annulment of the book of voters pursuant to Sec.
10, of RA No. 7166:
Sec. 10. Annulment of the
List of Voters. - Any book of voters
the preparation of which has been affected with fraud, bribery, forgery,
impersonation, intimidation, force or any other similar irregularity or which
is statistically improbable may be annulled after due notice and hearing by the
Commission motu propio or after
the filing of a verified complaint: Provided, that no order, ruling or decision annulling a book of voters shall be
executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all
of the 557 precincts as alleged by Canicosa,[xiii][4] then it was
more expedient on his part to avail of the remedies provided by law in order to
maintain the integrity of the election.
Since Canicosa failed to resort to any of the above options, the
permanent list of voters as finally corrected before the election remains conclusive
on the question as to who had the right to vote in that election, although not
in subsequent elections.[xiv][5]
Canicosa also avers that
more than one-half (1/2) of the legitimate registered voters were not able to
vote, instead, strangers voted in their behalf.
Again, this is not a ground which warrants a declaration of failure of
election. Canicosa was allowed to
appoint a watcher in every precinct. The
watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus
Election Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge any
person offering to vote for not being registered, for using the name of another
or suffering from existing disqualification.
In such case, the board of election inspectors shall satisfy itself as
to whether or not the ground for the challenge is true by requiring proof of
registration or identity of the voter x x x x
Sec. 202. Record of
challenges and oaths. - The poll
clerk shall keep a prescribed record of challenges and oaths taken in
connection therewith and the resolution of the board of election inspectors in
each case and, upon the termination of the voting, shall certify that it
contains all the challenges made x x x x
The claim of Canicosa that he was
credited with less votes than he actually received and that the control data of
the election returns was not filled up should have been raised in the first
instance before the board of election inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of
watchers -
Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have the
right to witness and inform themselves of the proceedings of the board of
election inspectors x x x to file a protest against any irregularity or
violation of law which they believe may have been committed by the board of
election inspectors or by any of its members or by any persons, to obtain from
the board of election inspectors a certificate as to the filing of such protest
and/or of the resolution thereon x x x and to be furnished with a certificate
of the number of votes in words and figures cast for each candidate, duly
signed and thumbmarked by the chairman and all the members of the board of
election inspectors x x x x
To safeguard and maintain the
sanctity of election returns, Sec. 212, Art. XVIII, of the Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of
the election returns, each copy thereof shall be sealed in the presence of the
watchers and the public, and placed in the proper envelope, which shall
likewise be sealed and distributed as herein provided.
Furthermore, it is provided in
Sec. 215 of the Omnibus Election Code that -
Sec. 215. Board of election inspectors to issue a
certificate of the number of votes
polled by the candidates for an office to the watchers. - After the announcement of the results of the
election and before leaving the polling place, it shall be the duty of the
board of election inspectors to issue a certificate of the number of votes
received by a candidate upon request of the watchers. All members of the board of election
inspectors shall sign the certificate.
Sec. 16. Certification of
votes. - After the counting of the
votes cast in the precinct and announcement of the results of the election, and
before leaving the polling place, the board of election inspectors shall issue
a certificate of votes upon request of the duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236 of Batas
Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible
in evidence to prove tampering, alteration, falsification or anomaly committed
in the election returns concerned x x x x
From the foregoing
provisions, it is clear that in case of inconsistency as to the number of votes
written in the election returns and the certificate of votes, a petition for
correction of election returns must immediately be filed with COMELEC by all or
a majority of the members of the board of election inspectors or any candidate
affected by the error or mistake. In
order to make out a case for correction of election returns, there must be an
error and at least a majority of the members of the board of election
inspectors agrees that such error existed.
Canicosa never mentioned that he petitioned for the correction of the
election returns before the COMELEC
Canicosa complains that the
election returns were delivered late and the ballot boxes brought to the Office
of the Municipal Treasurer unsecured, i.e., without padlocks nor self-locking
metal seals. These bare allegations cannot
impel us to declare failure of election.
Assuming that the election returns were delivered late, we still cannot
see why we should declare a failure to elect.
The late deliveries did not convert the election held in Calamba into a
mockery or farce to make us conclude that there was indeed a failure of
election.
In fine, the grounds cited
by Canicosa in his petition do not fall under any of the instances enumerated
in Sec. 6 of the Omnibus Election
Code. In Mitmug v. Commission on Elections [xv][6] we
ruled that before COMELEC can act on a
verified petition seeking to declare a failure of election, at least two (2)
conditions must concur: (a) no voting has taken place
in the precincts on the date fixed by law, or even if there was voting, the
election nevertheless resulted in failure to elect; and, (b) the votes that
were not cast would affect the result
of the election. From the face of the instant petition, it is
readily apparent than an election took place and that it did not result in a
failure to elect.[xvi][7]
Canicosa finally insists
that it was error on the part of COMELEC sitting en banc
to rule on his petition. He maintains that his petition should have
first been heard by a division of COMELEC and later by the COMELEC en banc
upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the
Constitution.[xvii][8]
But this provision applies
only when the COMELEC acts in the exercise of its adjudicatory or
quasi-judicial functions and not when it merely exercises purely administrative
functions. To reiterate, the grounds
cited by Canicosa in his petition are that:
(a) the names of the registered
voters did not appear in the list of voters in their respective precincts;
(b) more than one-half of the legitimate
registered voters were not able to vote with strangers voting in their stead;
(c) he was credited with less votes than he actually received; (d) the control
data of the election returns was not filled up in some precincts; (e) ballot
boxes brought to the Office of the Municipal Treasurer were unsecured, i. e.,
without padlocks nor self-locking metal seals; and, (f) there was delay in the
delivery of election returns.
Clearly, all these matters
require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the 1987
Constitution grants extensive administrative powers to the
COMELEC with regard to the enforcement and administration of all laws
and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise
known as the Omnibus Election Code, states:
Sec. 52. Powers
and functions of the Commission
on Elections. - In addition to the
powers and functions conferred upon it by the Constitution, the Commission
shall have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly
and honest elections x x x x
Quite obviously, it is only
in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC
is mandated to hear and decide cases first by Division and then, upon motion
for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case, as aforestated, the
issues presented demand only the exercise by the COMELEC of its administrative
functions.
The COMELEC exercises direct
and immediate supervision and control over national and local officials or
employees, including members of any national or local law enforcement agency
and instrumentality of the government required by law to perform duties
relative to the conduct of elections.
Its power of direct supervision and control includes the power to
review, modify or set aside any act of such national and local officials. [xviii][9]
It exercises immediate supervision and control over the members of the
boards of election inspectors and
canvassers. Its statutory power of
supervision and control includes the power to revise, reverse or set
aside the action of the boards, as well as to do what the boards
should have done,
even if questions
relative thereto have not been
elevated to it by an
aggrieved party, for
such power includes the authority to initiate motu proprio or by
itself such steps or actions as
may be required pursuant to law.[xix][10]
Specifically, Canicosa
alleged that he was credited with less votes than he actually received. But he did not raise any objection before the
Municipal Board of Canvassers; instead, he went directly to the COMELEC. He now claims, after the COMELEC en banc dismissed his petition, that it was error on
the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of
this issue in Castromayor v. Commission on Elections [xx][11]
thus should be pinpointed out, in this connection, that what is involved
here is a simple problem of arithmetic.
The Statement of Votes is merely a tabulation per precinct of the votes
obtained by the candidates as reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence, any
question pertaining to the proceedings of the MBC may be raised directly to the
COMELEC en banc in the exercise
of its constitutional function to decide
questions affecting elections.
Moreover, it is expressly
provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party
dissatisfied with the ruling of the board of canvassers shall have a right to appeal to
the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or
Tallying of Results by the Board of Canvassers. - (a) Where it is clearly shown before
proclamation that manifest errors were committed in the tabulation or tallying
or election returns, or certificates of canvass, during the canvassing as where
(1) a copy of the election returns of one precinct or two or more copies of a
certificate of canvass were tabulated more than once, (2) two copies of the
election returns or certificate of canvass were tabulated separately, (3) there
was a mistake in the adding or copying of the figures into
the certificate of
canvass or into
the statement of votes by precinct, or (4) so-called
election returns from non-existent precincts were included in the canvass, the
board may motu proprio, or upon verified petition by any candidate,
political party, organization or
coalition of political
parties, after due
notice and hearing, correct the
errors committed x x x x (h) The appeal shall be heard and decided by the
Commission en banc.
In Tatlonghari v.
Commission on Elections [xxi][12]
it was made to appear in the Certificate of Canvass of Votes and
Proclamation of the Winning Candidates that respondent therein received 4,951 votes
or more than what he actually obtained.
In resolving the case we ruled that the correction of the manifest
mistake in mathematical addition calls for a mere clerical task of the board of
canvassers. The remedy invoked was
purely administrative. In Feliciano v. Lugay [xxii][13] we
categorized the issue concerning registration of voters, which Canicosa cited
as a ground in his petition for declaration of failure of election, as an
administrative question. Likewise,
questions as to whether elections have been held or whether certain returns
were falsified or manufactured and therefore should be excluded from the
canvass do not involve the right to vote.
Such questions are properly within the administrative
jurisdiction of COMELEC, [xxiii][14]
hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its
divisions.
CASE No. 6: Facts:
"It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo were
both candidates in the May
11, 1992 elections for the positions of congressmen and governor,
respectively, of Camiguin. They belonged to opposing political factions and
were in a bitter electoral battle.
"On
April 10, 1992 or about a month before the elections, Cong. Romualdo filed a
petition docketed as Special Civil Action No. 465 before the Regional Trial
Court of Camiguin (Br. 28) presided over by respondent Judge Tabamo against
Gov. Gallardo, the Provincial Treasurer, the Provincial Auditor, the Provincial
Engineer, and the Provincial Budget Officer as respondents. In this petition
Cong. Romualdo sought to prohibit and restrain the respondents from undertaking
and/or pursuing certain public works projects and from disbursing, releasing,
and/or spending public funds for said projects, allegedly because, among other
reasons, said projects were undertaken in violation of the 45-day ban on public
works imposed by the Omnibus Election Code (B.P. Blg. 881); that the public
works projects were commenced without the approved detailed engineering plans
and specification and corresponding program of works; that the expenditures of
the 20% development fund for projects other than for maintenance violated the
Local Government Code; that locally funded projects had been pursued without
the provincial budget having been first approved, and reviewed by the
Department of Budget and Management; and that the illegal prosecution of the
said public works projects requiring massive outlay or public funds during the
election period was done maliciously and intentionally to corrupt voters and
induce them to support the candidacy of Gov. Gallardo and his ticket in the May
11, 1992 elections.
"In
the afternoon of the same day that the petition was filed, Judge Tabamo issued
a temporary restraining order as prayed for by the petitioner Cong. Romualdo,
as follows:
'It
appearing from the verified petition in this case that great and irreparable
damage and/or injury shall be caused to the petitioner as candidate and
taxpayer, such damage or injury taking the form and shape occasioned by the
alleged wanton, excessive, abusive and flagrant waste of public money, before
the matter can be heard on notice, the respondents are hereby Temporarily
Restrained from pursuing or prosecuting the project itemized in Annexes 'A' and
'A-1' of the petition; from releasing, disbursing and/or spending any public
funds for such projects; from issuing, using or availing of treasury warrants
or any device undertaking future delivery of money, goods, or other things of
value chargeable against public funds in connection with the said projects.'
"In
the same Order of April 10,
1993 the judge gave the respondents ten (10) days from receipt of a
copy of the petition to answer the same, and set the prayer for the issuance of
a preliminary injunction for hearing on April 24, 1992 at 8:30
A.M.
"Gov.
Gallardo testified that when he received a copy of the restraining order and
reviewed the petition filed, being a lawyer, he at once saw that the same was
not within the jurisdiction of the Regional Trial Court. He said that the
elections were nearing and all their projects were suspended, the laborers
could not get their salaries, and the judge had set the hearing of the
injunction on April 24, 1992
or very close to the elections of May 11, 1992. Believing that he could not get justice from
the respondent court, he decided to go to the Supreme Court where he filed a
petition for certiorari (docketed as G.R. No. L-104848) questioning the
issuance of the temporary restraining order and the jurisdiction of the court
over Special Civil Action No. 465.
QUESTION: 1. From your
point of view, was the Judge correct in taking cognizance of the case and was
his act of issuing the Temporary Restraining Order correct under the
circumstances? Or would you agree with Gov. Gallardo that the RTC has no
jurisdiction over the case? Reason out your answer.
Answer NO 6:The
Judge was wrong. Needless to say, the acts
sought to be restrained in Special Civil Action No. 465 before the court a quo
are matters falling within the exclusive jurisdiction of the Commission. As a
matter of fact, the specific allegations in the petition therein of violations
of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code
provide a stronger basis and reason for the application of the Zaldivar
doctrine. At most, the facts in the latter case do not illustrate as clearly
the announced doctrine as the facts in this case do. In Zaldivar, no specific
provision of the Revised Election Code then in force was alleged to have been
violated. What was sought to be enjoined was the alleged wielding by Zaldivar,
then a municipal mayor, of the power, by virtue of his office, to appoint
special policemen or agents to terrorize voters into supporting the
congressional candidate of his choice. In holding that the then Court of First
Instance did not have jurisdiction over the case, this Court considered the
constitutional power of the Commission on Elections to have exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections and to exercise all other functions which may be conferred by law. We
likewise relied on the provisions of the Revised Election Code vesting upon the
COMELEC (a) direct and immediate supervision over municipal, city and
provincial officials designated by law to perform duties relative to the
conduct of elections and (b) authority to suspend them from the performance of
such duties for failure to comply with its instructions, orders, decisions or
rulings and recommend to the President their removal if found guilty of
non-feasance, malfeasance or misfeasance in connection with the performance of
their duties relative to the conduct of elections. 20
Under the
present law, however, except in case of urgent need, the appointment or hiring
of new employees or the creation or filling up of new positions in any
government office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, is banned during the
period of forty-five (45) days before a regular election and thirty (30) days
before a special election if made without the prior authority of the Commission
on Elections. A violation thereof constitutes an election offense. 21 Then too,
no less than the present Constitution
and not just the Election Law as was the case at the time of Zaldivar expressly provides that the Commission may
"[R]ecommend to the President the removal of any officer or employee it has deputized,
or the imposition of any other disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or decision." 22
Moreover,
the present Constitution also invests the Commission with the power to
"investigate and, where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting election frauds,
offenses, and malpractices." 23
It may thus
be said without fear of contradiction that this vast array of powers and
functions now enjoyed by the Commission under the present Constitution provides
a stronger foundation for, and adds vigor and vitality to, the Zaldivar
doctrine.
The
rationale of the said doctrine needs to be stressed here so that henceforth, no
judge will lose his bearings when confronted with the same issue. Otherwise, he
should be held to account for either the sheer ignorance of the law or the
callous disregard of pronouncements by this Court to accommodate partisan political
feelings. We declared in the said case:
The
question may be asked: Why should not the judiciary be aco-participant in this
particular instance of enforcing the Election Code as its authority was
invoked? The obvious answer is the literal language of the Constitution which
empowers the Commission on Elections to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of the
elections." Moreover, as was so aptly observed by the then Justice Frankfurter,
although the situation confronting the United States Supreme Court was of a
different character: "Nothing is clearer than that this controversy
concerns matters that brings courts into immediate and active relations with
party contests. From the determination of such issues this Court has
traditionally held aloof. It is hostile to a democratic system to involve the
judiciary in the politics of the people. And it is not less pernicious if such
judicial intervention in an essentially political contest be dressed up in the
abstract phrases of the law." 24 Then, too, reference by analogy may be
made to the principle that sustains Albano v.
Arranz. For even without the express constitutional prescription that only this
Court may review the decisions, orders and rulings of the Commission on
Elections, it is easy to understand why no inference whatsoever with the
performance of the Commission on Elections of its functions should be allowed
unless emanating from this Court. The observation of Acting Chief Justice J.B.L.
Reyes in Albano v. Arranz, 25 while not
precisely in point, indicates the proper approach. Thus: "It is easy to
realize the chaos that would ensue if the Court of First Instance of each and
every province were to arrogate unto itself the power to disregard, suspend, or
contradict any order of the Commission on Elections; that constitutional body
would be speedily reduced to impotence."
This
conclusion finds' support from a consideration of weight and influence. What
happened in this case could be repeated elsewhere. It is not improbable that
courts of first instance would be resorted to by leaders of candidates or
political factions entertaining the belief whether rightly or wrongly that
local officials would employ all the power at their command to assure the
victory of their candidates. Even if greater care and circumspection, than did
exist in this case, would be employed by judges thus appealed to, it is not
unlikely that the shadow of suspicion as to alleged partisanship would fall on
their actuations, whichever way the matter before them is decided. It is
imperative that the faith in the impartiality of the judiciary be preserved
unimpaired. Whenever, therefore, the fear may be plausibly entertained that an
assumption of jurisdiction would lead to a lessening of the undiminished trust
that should be reposed in the courts and the absence of authority discernible
the from the wording of applicable statutory provisions and the trend of
judicial decisions, even if no constitutional mandate as that present in this
case could be relied upon, there should be no hesitancy in declining to act. 26
The
foregoing disquisitions should have rendered unnecessary the resolution of the
remaining collateral issues raised in this petition. In view, however, of their
importance, they will be dealt with in a general way.
It is not
true that, as contended by the petitioners, the jurisdiction of the Regional
Trial Court under the election laws is limited to criminal actions for
violations of the Omnibus Election Code. The Constitution itself grants to it
exclusive original jurisdiction over contests involving elective municipal
officials. 27 Neither can We agree with the petitioners' assertion that the
Special Civil Action filed in the court below involves the prosecution of election
offenses; the said action seeks some reliefs incident to or in connection with
alleged election offenses; specifically, what is sought is the prevention of
the further commission of these offenses which, by their alleged nature, are
continuing.
There is as
well no merit in the petitioners' claim that the private respondent has no
legal standing to initiate the filing of a complaint for a violation of the
Omnibus Election Code. There is nothing in the law to prevent any citizen from
exposing the commission of an election offense and from filing a complaint in
connection therewith. On the contrary, under the COMELEC Rules of Procedure,
initiation of complaints for election offenses may be done motu propio by the
Commission on Elections or upon written complaint by any citizen, candidate or
registered political party or organization under the party-list system or any
of the accredited citizens arms of the Commission. 28 However, such written
complaints should be filed with the "Law Department of the Commission; or
with the offices of the Election Registrars, Provincial Election Supervisors or
Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City
Fiscal." 29 As earlier intimated, the private respondent was not seriously
concerned with the criminal aspect of his alleged grievances. He merely sought
a stoppage of the public works projects because of their alleged adverse effect
on his candidacy. Indeed, while he may have had reason to fear and may have
even done the right thing, he committed a serious procedural misstep and
invoked the wrong authority.
We have,
therefore, no alternative but to grant this petition on the basis Our
resolution of the principal issue. Nevertheless, it must be strongly emphasized
that in so holding that the trial court has no jurisdiction over the subject
matter of Special Civil Action No. 465, We are not to be understood as
approving of the acts complained of by the private respondent. If his charges
for the violation of paragraphs (a), (b), (v) and (w), Section 261 of the
Omnibus Election Code are true, then no one should be spared from the full
force of the law. No government official should flout laws designed to ensure
the holding of free, orderly, honest, peaceful and credible elections or make a
mockery of our electoral processes. The bitter lessons of the past have shown
that only elections of that nature or character can guarantee a peaceful and
orderly change. It is then his duty to respect, preserve and enhance an
institution which is vital in any democratic society. ANTONIO GALLARDO, ET AL. vs.
SINFOROSO V. TABAMO, JR., ET AL. G.R. No. 104848 January 29, 1993
CASE NO. 7. Facts:This
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure
seeks to annul and set aside, for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction, the 17 May 1996
Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213 1
dismissing the petition for disqualification against private respondent Ferdinand
B. Trinidad pursuant to COMELEC Resolution No. 2050 promulgated 3 November
1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990,
and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996
Resolution of the COMELEC 2nd Division.
Petitioner
Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan,
in the 8 May 1995
elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor, was
a candidate for re-election in the same municipality.
On 22 April 1995 Sunga filed
with the COMELEC a letter-complaint 2 for disqualification against Trinidad, accusing him of using three (3) local
government vehicles in his campaign, in violation of Sec. 261, par. (o), Art.
XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another
letter-complaint 3 with the COMELEC charging Trinidad
this time with violation of Sec. 261, par. (e) (referring to threats,
intimidation, terrorism or other forms of coercion) of the Omnibus Election
Code, in addition to the earlier violation imputed to him in the first
letter-complaint. This was followed by an Amended Petition 4 for
disqualification consolidating the charges in the two (2) letters-complaint,
including vote buying, and providing more specific details of the violations
committed by Trinidad. The case was docketed as SPA No. 95-213.
In
a Minute Resolution dated 25
May 1995, 5 the COMELEC 2nd Division referred the complaint to its
Law Department for investigation. Hearings were held wherein Sunga adduced
evidence to prove his accusations. Trinidad,
on the other hand, opted not to submit any evidence at all.
Meanwhile,
the election results showed that Trinidad
garnered the highest number of votes, while Sunga trailed second.
On 10 May 1995 Sunga moved for
the suspension of the proclamation of Trinidad.
However, notwithstanding the motion, Trinidad
was proclaimed the elected mayor, prompting Sunga to file another motion to
suspend the effects of the proclamation. Both motions were not acted upon by
the COMELEC 2nd Division.
On
28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En Banc recommending that
Trinidad be charged in court for violation of the following penal provisions of
the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec.
261, par. (e), on threats, intimidation, terrorism or other forms of coercion;
and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the
government or any of its political subdivisions. The Law Department likewise
recommended to recall and revoke the proclamation of Ferdinand B. Trinidad as
the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly
elected Mayor; and, direct Sunga to take his oath and assume the duties and
functions of the office.
The
COMELEC En Banc approved the findings of the Law Department and directed the
filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations 7 for
various elections offenses were filed in the Regional Trial Court of
Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred
to the COMELEC 2nd Division for hearing.
On 2 May 1996 Sunga filed a
Second Urgent Motion to Suspend the Effects and Annul the Proclamation with
Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the
COMELEC 2nd Division dismissed the petition for disqualification, holding in
its Resolution No. 2050 that
1. Any complaint for disqualification
of a duly registered candidate based upon any of the grounds specifically
enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the
Commission before an election in which respondent is a candidate, shall be
inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed . . . .
In
case such complaint was not resolved before the election, the Commission may
motu propio, or on motion of any of the parties, refer the complaint to the Law
Department of the Commission as the instrument of the latter in the exercise of
its exclusive power to conduct a preliminary investigation of all cases
involving criminal infractions of the electionlaws . . . .
2. Any complaint for disqualification
based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6 of Republic
Act No. 6646 filed after the election against a candidate who has already been
proclaimed as a winner shall be dismissed as a disqualification case. However,
the complaint shall be referred for preliminary investigation to the Law
Department of this Commission.
Where
a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant
may file a petition for suspension of the proclamation of the respondent with
the court before which the criminal case is pending and said court may order
the suspension of the proclamation if the evidence of guilt is strong.
As
interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050
provides for the outright dismissal of the disqualification case in three
cases: (1) The disqualification case was filed before the election but remains
unresolved until after the election; (2) The disqualification case was filed
after the election and before the proclamation of winners; and (3) The
disqualification case was filed after election and after proclamation.
If
the instant case is deemed to have been filed upon receipt by the COMELEC of
the letter-complaint on April
26 1995, it nevertheless remained pending until after the election.
If it is deemed to have been filed upon filing of the amended petition on 11 May 1995, it was clearly
filed after the election. In either case, Resolution No. 2050 mandates the
dismissal of the disqualification case.
His
motion for reconsideration having been denied by the COMELEC En Banc, Sunga
filed the instant petition contending that the COMELEC committed grave abuse of
discretion in dismissing the petition for disqualification in that: first, Sec.
6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even
after the election and proclamation, and the proclamation and assumption of office
by Trinidad did not deprive the COMELEC of its jurisdiction; second COMELEC
Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No. 6646;
third, the fact that COMELEC authorized the filing of four (4) informations
against private respondent for violation of the penal provisions of the Omnibus
Election Code shows more than sufficient and substantial evidence to disqualify
Trinidad, and he should have been so disqualified; and fourth, since Trinidad
was a disqualified candidate, it is as if petitioner was the only candidate
entitled to be proclaimed as the duly elected mayor.
Private
respondent, on the other hand, postulates inter alia that Sunga's
letters-complaint of 22 April 1995 and 7 May 1995 were not petitions for
disqualification because no filing fee was paid by Sunga; the letters-complaint
were never docketed by the COMELEC; and, no summons was ever issued by the
COMELEC and private respondent was not required to answer the
letters-complaint. It was only on 13 May 1995 when petitioner filed the so-called Amended
Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC
correctly dismissed the disqualification case for having been filed only after
the 8 May 1995
elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC
Resolution No. 2050.
COMELEC
filed its Comment on 21
April 1997 relying heavily on Resolution No. 2050 and the Silvestre
v. Duavit ruling in support of the dismissal of the disqualification case. The
COMELEC insisted that the outright dismissal of a disqualification case was
warranted under any of the following circumstances: (a) the disqualification
case was filed before the election but was still pending (unresolved) after the
election; (b) the disqualification case was filed after the election but before
the proclamation of the winner; and, (c) the disqualification case was filed
after the election and after the proclamation of the winner.
QUESTIONS: 1.The issue in this case is
whether the COMELEC committed grave abuse of discretion when it dismissed the
disqualification case against private respondent Trinidad.On the basis of the
facts, didthe COMELEC commit grave abuse of discretion?
2.Trinidad
further avers that the COMELEC was correct in summarily dismissing the disqualification
case because the docket fees were not duly paid. Is the contention correct?
3.Sunga
claims that, in the event of Trinidad’s disqualification, he should be
proclaimed as mayor? Is he correct?
4.In
this case who should be the rightful mayor? Explain.
Answer NO 7: The petition is partly meritorious.
We find private respondent’s
arguments on the propriety of the letters-complaint puerile. COMELEC itself impliedly recognized in its
Resolution that the petition was filed before the 8 May 1995 election in the form of
letters-complaint, thus –
This case originally came to
the attention of this Commission on 26 April 1995 in a form of letter from petitioner accusing
respondent of utilizing government properties in his campaign and praying for
the latter’s immediate disqualification.
Another letter dated 7
May 1995 and addressed to the COMELEC Regional Director of Region
II reiterated petitioner’s prayer while alleging that respondent and his men
committed acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an Amended Petition was filed
with the Clerk of Court of the Commission containing substantially the same
allegations as the previous letters but supported by affidavits and other
documentary evidence.
That the Amended Petition
was filed only on 11 May
1995, or after the elections, is of no
consequence. It was merely a reiteration
of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the
elections. Consequently, the Amended
Petition retroacted to such earlier dates.
An amendment which merely supplements and amplifies facts originally
alleged in the complaint relates back to the date of the commencement of the
action and is not barred by the statute of limitations which expired after the
service of the original complaint.[xxiv][9]
The fact that no docket fee was paid therefor was not a
fatal procedural lapse on the part of petitioner. Sec. 18, Rule 42, of the COMELEC Rules of
Procedure provides, “If the fees above
described are not paid, the Commission may refuse to take action thereon until
they are paid and may dismiss the action or proceeding.” The use of the word “may” indicates that it
is permissive only and operates to confer a discretion on the COMELEC whether
to entertain the petition or not in case of non-payment of legal fees. That the COMELEC acted on and did not
dismiss the petition outright shows that the non-payment of fees was not
considered by it as a legal obstacle to entertaining the same. Be that as it may, the procedural defects
have been cured by the subsequent payment of docket fees, and private
respondent was served with summons, albeit belatedly, and he submitted his
answer to the complaint. Hence, private
respondent has no cause to complain that
no docket fee was paid, no summons served upon him, or that he was not
required to answer.
Neither do we agree with the
conclusions of the COMELEC. We discern
nothing in COMELEC Resolution No. 2050
declaring, ordering or directing the dismissal of a disqualification case filed
before the election but which remained unresolved after the election. What the Resolution mandates in such a case
is for the Commission to refer the complaint to its Law Department for
investigation to determine whether the acts complained of have in fact been
committed by the candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally different from the other two situations
contemplated by Resolution No. 2050,
i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation
of winners, wherein it was specifically directed by the same Resolution to be
dismissed as a disqualification case.
Moreover, Resolution No. 2050 as interpreted in Silvestre v.
Duavit infringes on Sec. 6 of RA No. 6646,[xxv][10] which
provides:
SEC. 6. Effects of
Disqualification Case. - Any
candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest
and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong (underscoring supplied).
Clearly, the legislative
intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is rendered
thereon. The word “shall” signifies that
this requirement of the law is mandatory, operating to impose a positive duty
which must be enforced.[xxvi][11]
The implication is that the COMELEC is left with no
discretion but to proceed with the disqualification case even after the
election. Thus, in providing for the
outright dismissal of the disqualification case which remains unresolved after
the election, Silvestre v. Duavit in
effect disallows what RA No. 6646
imperatively requires. This amounts to a
quasi-judicial legislation by the COMELEC which cannot be countenanced and is
invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial
bodies or administrative agencies must always be in perfect harmony with
statutes and should be for the sole purpose of carrying their general
provisions into effect. By such
interpretative or administrative rulings, of course, the scope of the law
itself cannot be limited. Indeed, a
quasi-judicial body or an administrative agency for that matter cannot amend an
act of Congress. Hence, in case of a
discrepancy between the basic law and an interpretative or administrative
ruling, the basic law prevails.
Besides, the deleterious
effect of the Silvestre ruling is not difficult to foresee. A candidate
guilty of election
offenses would be undeservedly rewarded, instead of
punished, by the dismissal of the disqualification case against him simply
because the investigating body was unable, for any reason caused upon it, to
determine before the election if the offenses were indeed committed by the
candidate sought to be disqualified.
All that the erring aspirant would need to do is to employ delaying
tactics so that the disqualification case based on the commission of election
offenses would not be decided before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the
position of mayor did not divest the COMELEC of authority and jurisdiction to
continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC[xxvii][12] this
Court held -
Time and again this Court
has given its imprimatur on the principle that COMELEC is with authority
to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has
assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where
there has been a valid proclamation. Since
private respondent’s petition before the COMELEC is precisely directed at the
annulment of the canvass and proclamation, we perceive that inquiry into this
issue is within the area allocated by the Constitution and law to COMELEC x x x
x Really, were a victim of a proclamation to be precluded from challenging the
validity thereof after that proclamation and the assumption of office
thereunder, baneful effects may easily supervene.
It must be emphasized that
the purpose of a disqualification proceeding is to prevent the candidate from
running or, if elected, from serving, or
to prosecute him for violation of the election laws. Obviously, the
fact that a candidate
has been proclaimed elected does not signify that his disqualification
is deemed condoned and may no
longer be the subject of a separate investigation.
It is worth to note that an
election offense has criminal as well as electoral aspects. Its criminal aspect involves the
ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually
entails a full-blown hearing and the quantum of proof required to secure a
conviction is beyond reasonable doubt.
Its electoral aspect, on the other hand, is a determination of whether
the offender should be disqualified from office. This is done through an administrative
proceeding which is summary in character and requires only a clear
preponderance of evidence. Thus, under
Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification
"shall be heard summarily after due notice." It is the electoral aspect that we are more
concerned with, under which an erring candidate may be disqualified even
without prior criminal conviction.[xxviii][13]
It is quite puzzling that
the COMELEC never acted on Sunga’s motion to suspend the proclamation of Trinidad. The
last sentence of Sec. 6 of RA No.
6646 categorically declares that the Commission may order the suspension of the
proclamation of a candidate sought to be disqualified whenever the evidence of
his guilt is strong. And there is not a
scintilla of doubt that the evidence of Trinidad’s
guilt was strong as shown in the Report and Recommendation of the COMELEC Law Department –
Parenthetically, there is
merit to petitioner’s petition against the respondent for disqualification for
the alleged commission of election offenses under Sec. 68 of the Omnibus
Election Code, such as use of armed men and act of terrorism, intimidation and
coercion of voters, massive vote-buying and others, duly supported by affidavits
of witnesses and other documents.
Consequently, the petitioner’s evidence supporting the disqualification
of respondent remain unrebutted simply because respondent has expressly waived
his right to present evidence in SPA No. 95-213 in his Manifestation and objection to the
presentation of evidence in SPA No.
95-213 dated 16 June 1995, thus the waiver is the intentional relinquishing of
a known right of respondent TRINIDAD.
In fact, on the basis of
this Report and Recommendation
the COMELEC directed the filing of four (4) criminal informations
against Trinidad before the Regional Trial
Court, an indication that there was indeed prima facie evidence of
violation of election laws.
However, Sunga’s contention
that he is entitled to be proclaimed as the duly elected Mayor of the Municipality of Iguig, Province of Cagayan,
in the event that Trinidad is disqualified
finds no support in
law and jurisprudence. The fact that
the candidate who obtained the highest number of votes is later disqualified
for the office to which he was elected
does not
entitle the candidate who obtained
the second highest number of
votes to be declared the winner of the elective office. The votes cast for a
disqualified person may not be valid to install the winner into office or maintain
him there. But
in the absence
of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes
were cast in the sincere belief that the candidate was qualified, they should
not be treated as stray, void or meaningless.[xxix][14]
Sunga totally miscontrued
the nature of our democratic electoral process as well as the sociological and
psychological elements behind voters’ preferences. Election is the process of
complete ascertainment of the expression
of the popular will. Its ultimate
purpose is to give effect to the will of the electorate by giving them direct
participation in choosing the men and women who will run their government. Thus, it would be extremely repugnant to the
basic concept of the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of votes is proclaimed
winner and imposed as the representative of a constituency, the majority of
whom have positively declared through their ballots that they do not choose
him.[xxx][15]
While Sunga may have
garnered the second highest number of votes, the fact remains that he was not
the choice of the people of Iguig, Cagayan.
“The wreath of victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then as now only authorizes
a declaration of election in
favor of the person who has
obtained a plurality of votes and does not entitle a candidate receiving the
next highest number of votes to be declared elected.”[xxxi][16] In Aquino
v. COMELEC,[xxxii][17]
this Court made the following pronouncement:
To simplistically assume
that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a majority or
plurality of voters. He could not be
considered the first among qualified candidates because in a field which
excludes the disqualified candidate, the conditions would have substantially
changed. We are not prepared to
extrapolate the results under such circumstances.
Also, what Sunga wants us to
do is to disregard the express mandate of Sec. 44, RA No. 7160,[xxxiii][18] which
provides in part -
Sec. 44. Permanent vacancies in the office of the
Governor, Vice-Governor, Mayor, Vice-Mayor.
- (a) If a permanent vacancy
occurs in the office of the Governor or Mayor, the Vice-Governor or Vice-Mayor concerned shall become the Governor or Mayor x x x x
For purposes of this
chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily
resigns or is otherwise permanently incapacitated to discharge the functions of
his office x x x x
This provision is echoed in Art. 83 of the Implementing Rules
and Regulations of the Local Government Code of 1991.
The language of the law is clear,
explicit and unequivocal, thus admits no room for interpretation
but merely application. This is
the basic legal precept. Accordingly, in
the event that Trinidad is adjudged to be
disqualified, a permanent vacancy will be created for failure of the elected
mayor to qualify for the said office. In
such eventuality, the duly elected vice-mayor shall succeed as provided by law.[xxxiv][19] . MANUEL C. SUNGA, petitioner,vs.COMMISSION ON ELECTIONS and FERDINAND
B. TRINIDAD, respondents. EN BANC (G.R. No. 125629 March 25, 1998)
CASE NO. 8: FACTS:This
case involves the power of the Commission on Elections (COMELEC) to annul the
proclamation of a winning candidate for Municipal Councilor in view of an error
in the computation of totals in the Statement of Votes which was made the basis
of the proclamation, and to direct the Municipal Board of Canvassers to
reconvene and proclaim the rightful winner.
On
9 May 1995 the Municipal Board of Canvassers of Tanza, Cavite, issued a
Certificate of Canvass of Votes and Proclamation of the Winning Candidates for
Municipal Offices (Municipal Councilors) as follows: (1) Wilfredo A. NuƱez,
14,888 votes; (2) Yuri A. Pacumio, 13,445 votes; (3) Rogelino A. Dones, 12,428
votes; (4) Francisco C. Pasco, 12,218 votes; (5) Rosauro I. Torres. 12,055
votes; (6) Rosalita C. Cenizal, 12,035 votes; (7) Eliseo R. Arcaira Jr., 11,939
votes; (8) Policarpio A. Bocalan, 11,790 votes. Accordingly, petitioner Atty.
Rosauro I. Torres was proclaimed as the fifth winning candidate for councilor.
1
Two
(2) days after or on 11 May
1995 the same Municipal Board of Canvassers requested the COMELEC
for correction of the number of votes garnered by petitioner who was earlier
proclaimed as the fifth winning candidate for councilor. The letter-request was
signed by Rudolph Melon and Norma Abril as Vice Chairman and Secretary,
respectively. The letter reads :
The undersigned members of the Board of Canvassers, Tanza,
Cavite, respectfully request for the correction of votes garnered by Mr.
Rosauro I. Torres who was proclaimed as the fifth winning candidate for
Councilor instead of Mr. Vicente Rafael A. de Peralta who landed in the number
eight (8th) position. The votes intended for MR. BERNARDO C. DIMAALA in the
sub-total as reflected in the Statement of Votes by precinct was erroneously
added to Mr. Torres for a total of Nine Hundred Thirty Four (934) votes. Mr.
Torres should have been number ten (10) in the winning column and that if
correction shall be made Mr. Torres shall garner a total of Eleven Thousand One
Hundred Twenty One (11,121) votes while Mr. de Peralta garnered a total of
Eleven Thousand Six Hundred Ten (11,610) votes. 2
On 16 May 1995 the COMELEC set
the case for hearing. Summonses with notices of hearing were sent to petitioner
Atty. Rosauro I. Torres and private respondent Vicente Rafael A. de Peralta requiring
them to file their respective answers to the letter of the Municipal Board of
Canvassers.
Petitioner filed his
answer alleging that the subject matter of the letter-petition of the Municipal
Board of Canvassers, which was the correction of votes garnered by him,
properly falls within the jurisdiction of the Regional Trial Court pursuant to
Sec. 251 of the Omnibus Election Code. On the other hand, private respondent
argued for the annulment of the proclamation of petitioner and prayed for his
(private respondent) proclamation as the winning candidate.
On 28 June 1995 respondent
COMELEC issued the assailed En Banc resolution granting the letter-request of
the Municipal Board of Canvassers for the correction of the number of votes
garnered by petitioner. Respondent Comelec also ordered the Municipal Board of
Canvassers to reconvene and proclaim private respondent Vicente Rafael A. de
Peralta as the eighth winning councilor of Tanza, Cavite.
On 5 July 1995 the Municipal
Board of Canvassers issued a corrected Certificate of Canvass of Votes and
Proclamation of the Winning Candidates which included private respondent
Vicente Rafael A. de Peralta as the eighth winning councilor and excluded
petitioner from the new list of winning candidates. 3
Petitioner came up
to this Court alleging that public respondent COMELEC acted without or in
excess of its jurisdiction in granting the request of the Municipal Board of
Canvassers to correct the votes garnered by petitioner and in ordering the
proclamation of private respondent as the eighth winning candidate thereby
ousting petitioner from the new list of winners. Petitioner also argues that
the Municipal Board of Canvassers had no legal personality to file the action
motu proprio before the Comelec for correction; that corrections are allowed
only when there has been no proclamation yet, citing Respicio v. Cusi; and
finally, that once the Municipal Board of Canvassers has declared and
proclaimed the winners in an election its functions are finished and its
existence is terminated.
The
Office of the Solicitor General submits that respondent COMELEC acted beyond
the limits of its power and authority when it ordered the Municipal Board of
Canvassers to reconvene and correct its alleged mistake in counting the votes
cast for candidate Dimaala in favor of petitioner; that by having done so,
respondent COMELEC had exercised original jurisdiction over a municipal
election contest contrary to what the Constitution mandates; that Art. IX-C,
Sec. 2, par 2, of the Constitution provides that the Commission on Elections
shall exercise appellate jurisdiction overall contests involving elective
municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited
jurisdiction.
Respondent COMELEC
filed its own comment alleging that the proclamation of petitioner was flawed
from the beginning for being tainted with clerical error or mathematical
mistake in the addition of votes; that pursuant to the ruling in Villaroya v.
Comelec 5 public respondent has original jurisdiction on all matters relating
to election returns, including the verification of the number of votes received
by opposing candidates in the election returns as compared to the statement of
votes in order to ensure that the true will of the people is known; and, that
according to Tatlonghari v. Comelec, 6 when what is involved is purely
mathematical and/or mechanical error in the operation of the adding machine
committed by the board of canvassers but does not involve any opening of ballot
boxes, examination and appreciation of ballots and/or election returns, all
that is required is to reconvene the
board of canvassers to rectify the error it inadvertently committed. Respondent
COMELEC also contends that since it has the direct control and supervision over
the municipal board of canvassers, the former has authority to direct the
latter to reconvene and continue its assigned task in proclaiming the rightful
winner for municipal councilor.
QUESTION: On the basis of the facts at
bar, did the COMELEC commit grave abuse of discretion to merit a reversal of
its decision? Explain and support your answer.
ANSWER NO 8: Petitioner's contentions must fail. The position
of COMELEC is well-taken. Sec. 7, Rule 27, of the COMELEC Rules of Procedure
provides —
Sec. 7. Correction of Errors in Tabulation
or Tallying of Results by the Board of Canvassers. — (a) where it is
clearly shown before proclamation that manifest errors were committed in the
tabulation or tallying of election returns, or certificates of canvass, during
the canvassing as where (1) a copy of the election returns of one precinct or
two or more copies of a certificate of canvass were tabulated more than once,
(2) two copies of the election returns or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding or copying of the figures
into the certificate of canvass or into the statement of votes by precinct, or
(4) so-called election returns from non-existent precincts were included in the
canvass, the board may motu proprio or upon verified petition by any
candidate, political party, organization or coalition of political parties,
after due notice and hearing, correct the errors committed.
In Castromayor v. Comelec[xxxv][7]
we held that although the above provision applies to pre-proclamation
controversies, and even if the proclamation of a winning candidate has already
been made, there is nothing to prevent its application to cases like the one at
bar in which the validity of the proclamation is precisely in question. In Duremdes
v. COMELEC,[xxxvi][8]
this Court sustained the power of the COMELEC En Banc to order a
correction of the Statement of Votes to make it conform to the election returns
in accordance with a procedure similar to the procedure now embodied in Sec. 7,
Rule 27, of the COMELEC Rules of Procedure. Since the Statement of Votes forms
the basis of the Certificate of Canvass and of the proclamation, any error in
the statement ultimately affects the validity of the proclamation.
It may be argued that
because petitioner has already been proclaimed as winning candidate the remedy
of the losing party is an election protest over which the Regional Trial Court
— and not the COMELEC nor the Municipal Board of Canvassers — has original
jurisdiction. However, as this Court already ruled in Duremdes –
It is Duremdes’
further submission that his proclamation could not be declared null and void
because a pre-proclamation controversy is not proper after a proclamation has
been made, the proper recourse being an election protest. This is on the
assumption, however, that there has been a valid proclamation. Where a
proclamation is null and void, the proclamation is no proclamation at all and
the proclaimed candidate's assumption of office cannot deprive the COMELEC of
the power to declare such nullity and annul the proclamation (Aguam v.
COMELEC, L-28955, 28 May 1968, 23 SCRA 883)[xxxvii][9]
The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as reflected in
the election returns. What is involved in the instant case is simple
arithmetic. In making the correction in the computation the Municipal Board of
Canvassers acted in an administrative capacity under the control and
supervision of the COMELEC. Pursuant to its constitutional function to decide
questions affecting elections, the COMELEC En Banc has authority to
resolve any question pertaining to the proceedings of the Municipal Board of
Canvassers.[xxxviii][10] . ATTY. ROSAURO I. TORRES, petitioner,vs.COMMISSION ON
ELECTIONS and VICENTE RAFAEL A. DE PERALTA, respondents. EN BANC G.R. No.
121031March 26, 1997
CASE NO. 9: Facts: Manuel Milla and Regina
Balmores-Laxa were candidates for councillor of Gerona, Tarlac in the May 14, 2001 elections. On May 18, 2001, Manuel Milla
was proclaimed as the 8th wining candidate by the Municipal Board of
Canvassers (BOC) based on the Statement of Votes and the Certificate of
Canvass. One month after his proclamation or on June 18, 2001, Regina filed a
petition with the COMELEC against Manuel and the BOC for correction of entries
in the Statement of Votes based on fraud or irregularities in the canvassing of
votes, specifically the entries for the 4 precincts in the Statement of Votes
did not correspond to the election returns for the respective precincts.
On June 29, 2001, Manuel took his oath of office
and assumed office.
The BOC admits the erroneous
tally, and prays that it it be allowed to reconvene to effect the correction of
entries in the Statement of Votes, inorder to give way for Regina’s winning as the eight councillor of Gerona.
In its Resolution of December
18, 2001, the COMELEC EN BANC, denied the BOC’s motion to reconvene, declared
Manuel’s proclamation as null and void and proclaimed Regina as the eight winning
candidate.
Manuel argued that: 1) the
petition of Regina
was filed beyond the reglementary period of five days from proclamation 2)
pre-proclamation cases should be terminated after proclamation and assumption
of office 3) padding of statement of votes isnot a proper subject of a
pre-proclamation case 4) that the COMELECen banc did not have jurisdiction over
the petition of Regina.
QUESTION: Resolve the issues raised by
Manuel.
Answer NO 9: Petitioner maintains that the COMELEC has no
jurisdiction over the petition as it was filed beyond the reglementary period.
For, so petitioner contends, since the proclamation was made on May 18, 2001, the petition
to correct the Statement of Votes should have been filed within 5 days
thereafter conformably with Section 5, Rule 27 of the COMELEC Rules of
Procedure[1][25]
which reads:
Sec. 5. Pre-proclamation
Controversies Which May Be Filed Directly With the Commission. –
(a) The following pre-proclamation controversies may be filed directly
with the Commission:
1) x x x
2) When the issue involves the correction of manifest errors in the
tabulation or tallying of the results during the canvassing as where (1) a copy
of the election returns or certificate of canvass was tabulated more than once,
(2) two or more copies of the election
returns of one precinct, or two or more copies of certificate of canvass were
tabulated separately, (3) there has been
a mistake in the copying of the figures into the statement of votes or into the
certificate of canvass, or (4) so-called
returns from non-existent precincts were included in the canvass, and such
errors could not have been discovered during the canvassing despite the
exercise of due diligence and proclamation of the winning candidates had
already been made.
b) x x x
If the petition is for
correction, it must be filed not later than five (5) days following the date of
proclamation and must implead all candidates who may be adversely affected
thereby.
x x x (Underscoring supplied)
In holding that it validly
assumed jurisdiction over the petition, the COMELEC asserts that “[a]
proclamation that is based on a clerical or mathematical mistake (or a blatant
padding of votes) is not a valid proclamation [h]ence, the same can be
challenged even after the proclaimed candidate has assumed office.” [2][26]
The Statement of Votes forms
the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately affects
the validity of the proclamation.[3][27]
If a candidate’s
proclamation is based on a Statement of Votes which contains erroneous entries,
it is null and void. It is no
proclamation at all and the proclaimed candidate’s assumption of office cannot
deprive the COMELEC of the power to annul the proclamation.[4][28]
In the case at bar, as the
Statement of Votes contained erroneous entries, the COMELEC rightfully assumed
jurisdiction over respondent’s petition for the correction thereof and
declaration of nullity of petitioner’s proclamation. While our election laws are silent when such
and similar petitions may be filed directly with the COMELEC,[5][29]
the above-quoted Section 5, Rule 27 of the Rules of Procedure sets a
prescriptive period of five (5) days following the date of proclamation. The COMELEC, however, could suspend its own
Rules of Procedure so as not to defeat the will of the electorate.[6][30]
For adherence to technicality that would put a stamp on a palpably void
proclamation, with the inevitable result of frustrating the people’s will,
cannot be countenanced.[7][31]
Petitioner
nevertheless posits that even assuming that the COMELEC may suspend the
application of Section 5, Rule 27 of its Rules of Procedure, it can
no longer exercise jurisdiction after his proclamation, oath and assumption of
office[8][32]
in view of Section 16 of Republic Act 7166[9][33] which states:
Sec. 16. Pre-Proclamation
Cases Involving Provincial, City and Municipal Offices. – Pre-proclamation
cases involving provincial, city and municipal offices shall be allowed and
shall be governed by Sections 17, 18, 19, 20, 21 and 22 hereof. All pre-proclamation cases pending before
the Commission shall be deemed terminated at the beginning of the term of the
office involved and the rulings of the boards of canvassers concerned shall
be deemed affirmed, without prejudice to the filing of a regular election
protest by the aggrieved party. However,
proceedings may continue when on the basis of evidence thus far presented, the
Commission determined that the petition appears meritorious and accordingly
issues an order for the proceeding to continue or when an appropriate order
has been issued by the Supreme Court in a petition for certiorari. (Emphasis
supplied)
By petitioner’s claim, there
is no showing that respondent’s petition falls under the exception in the
above-quoted provision as “the petition has not been determined by the COMELEC
to be meritorious” and “no order has been issued for the proceeding to
continue.”[10][34]
The claim does not lie. The COMELEC
issued Resolution No. 4493 on June
29, 2001 declaring the termination of all pre-proclamation cases except
those included in the list annexed thereto which list included SPC No.
01-311, respondent’s petition before the COMELEC subject of the present
petition.
Petitioner
additionally claims that the COMELEC, in assuming original jurisdiction over a
case involving municipal officials, acted beyond the limits of its power under
the Constitution, particularly Section 2, paragraph 2 of Article IX-C[11][35]
which provides:
Sec. 2. The Commission on
Elections shall exercise the following powers and functions:
(1)…
(2) Exercise exclusive
original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city
officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction.
Decisions, final orders, or
rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory and not appealable .
(3)… (Emphasis and
underscoring supplied)
Petitioner’s above-claim
does not likewise lie. By his admission,
the petition filed by respondent before the COMELEC involves a pre-proclamation
controversy, not an election contest and indeed it is not, for while the
petition alleged fraud and statistical improbability, the remedy sought was
merely for correction of erroneous entries in the Statement of Votes which were
based on the election returns.
As the petition then of
respondent involves a pre-proclamation controversy, following Sec. 3 of Art.
IX-C of the 1987 Constitution which provides:
Sec. 3. The Commission on Elections may sit en
banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies.
All such election
cases shall be heard and decided in division, provided
that motions for reconsideration of decisions shall be decided by the
Commission en banc.
(Emphasis and underscoring supplied)
it should have first been heard and decided by a division of the
COMELEC,37 and then by the En Banc if a motion for
reconsideration of the decision of the division were filed.
Since, as reflected above, the
COMELEC sitting en banc acted on respondent’s petition which was not
first passed upon by a division, it acted without jurisdiction, or with grave
abuse of discretion.[12][36] The
assailed Resolution of the COMELEC dated December 18, 2001 is thus null and void and it
is in this light that the present petition is GRANTED. This leaves it unnecessary to pass on
petitioner’s second assigned error. Manuel Milla v. Regina
BALMORES-LAXA, (G.R. No. 151216, July18, 2003)
CASE NO. 10: Facts:
Atty. Romulo Macalintal files a petition for certiorari and prohibition before
the Supreme Court seeking a declaration that certain provisions of Republic Act
No. 9189 (The Overseas Absentee Voting Act of 2003) suffer from constittuiona
infirmity. He raises the following questions:
1) Does
Sec. 5(d) of said Act 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 Art. V of the Constitution?
2) Does Sec. 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for national offices (i.e. senators,
pres. and vice pres.) and party list representatives violate the constitutional
mandate under Art. VII, SEC. 4 of the Constitution that the winning candidates
for Pres. and Vice Pres. shall be proclaimed as winners by Congress?
3) May Congress, through the Joint Congressional
Oversight Committee created in Sec. 25 of said Act, exercise the power to
review, revise, amend and approve the Implementing Rules and Regulations that
the COMELEC shall promulgate without violating the independence of theCOMELEC
under Section 1, Art. IX-A of the 1987 Constitution?
Resolve the questions posed by
Macalintal.
ANSWER NO 10: 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.[13][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.[14][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.[15][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,[16][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.[17][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.[18][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.[19][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.[20][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,[21][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 individual’s “permanent
home,” “a place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense that
they disclose intent.” 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 person’s intent be to remain, it becomes
his domicile; if his intent is to leave as soon as his purpose is established
it is residence. 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.[22][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. . .
. . . . . . .
[23][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 country’s
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.[24][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 Monsod’s
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.[25][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 one’s 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.
[26][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,[27][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
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.
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
well-debated 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.
[28][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:
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 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
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. [29][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.
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 petitioner’s
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.
Petitioner’s 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 TaƱada vs. Tuvera,[30][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.
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.[31][41]
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.[32][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-C[33][43]
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-Ć -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 well-secured.
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-Ć -vis the independence of the COMELEC, as
a constitutional body.
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.”[34][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.
[35][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.[36][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 rule-making 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.[37][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.[38][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.(Romulo
Macalintal v. Comelec, G.R. No. 157013, July 10, 2003)
CASE NO. 11. Facts:
Rosalina Lopez was born in Australia
in 1943 to a Filipino father and anAustralia mother. She is married to a
Filipino.In 1988 she registered herself with the Bureau of Immigration as an
Autralian national and was issued an Alien Certificate of Residence .She was
issued an Australian Passport. On January 15, 1992 she renounced her Australian citizenship.
Question: Did Lopez’
application for ACR and ICR and her being a holder of an Australian passport
constitute her renunciation of Phil. Citizenship?
Answer NO 11: Valles v.
COMELEC, 337 SCRA 543 Ruling: No.
Under CA No. 63, renunciation of citizenship must be express. Her application
for ACR and ICR did not amount to express renunciation or repudiation of her
citizenship.
CASE NO. 12. Rico
Balde was born in 1934 in Chicago,
USA, as a
legitimate son of a Filipino father and an American mother (hence was
admittedly both a Filipino and an American). He was continuously a resident in
the Philippines.
In 1958 at the age of 24 and in 1979 at the age of 45, he applied with the
Bureau of Immigration for an ALIEN CERTIFICATE OF REGISTRATION (ACR) and
IMMIGRANT CERTIFICATE OF RESIDENCE (ICR) and was granted. He had been
participating in elections in the Philippines as a voter, however,
and was issued a Phil. Passport in 1987.
Question: By registering
twice with the BID (Bureau of Immigration and Deportation) as an alien, did he
lose his Filipino citizenship?
Answer: NO 12. AZNAR v.
COMELEC , 185 scra 708 Ruling: No.
Under COMMONWEALTH ACT No. 63, there are three modes to lose Filipino
citizenship, which are relevant to him, namely: by naturalization, by express
renunciation and by subscribing to an oath of allegiance to a foreign country.
His application for an ACR and ICR is not one of them to make him lose his
Phil. Citizenship. The mere fact that he was a holder of a certificate stating
that he is an American did not mean that he is no longer a Filipino. An
application for an ACR is not tantamount to a renunciation of Philippine
citizenship.
CASE NO. 13: FACTS:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were
candidates for vice mayor of the City of Makati
in the May 11, 1998
elections. The other one was Gabriel V. Daza III. The results of the election
were as follows:
Eduardo B. Manzano=103,853; Ernesto S. Mercado=100,894;
Gabriel V. Daza III=54,275.
The
proclamation of private respondent was suspended in view of a pending petition
for disqualification filed by a certain Ernesto Mamaril who alleged that
private respondent was not a citizen of the Philippines but of the United States.
In
its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted
the petition of Mamaril and ordered the cancellation of the certificate of
candidacy of private respondent on the ground that he is a dual citizen and,
under §40(d) of the Local Government Code, persons with dual citizenship are
disqualified from running for any elective position. The COMELEC's Second
Division said:
“What
is presented before the Commission is a petition for disqualification of
Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City
in the May 11, 1998
elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.
In
his answer to the petition filed on April 27, 1998, the respondent admitted that he is
registered as a foreigner with the Bureau of Immigration under Alien
Certificate of Registration No. B-31632 and alleged that he is a Filipino
citizen because he was born in 1955 of a Filipino father and a Filipino mother.
He was born in the United
States, San Francisco, California,
September 14, 1955,
and is considered in American citizen under US Laws. But notwithstanding his
registration as an American citizen, he did not lose his Filipino citizenship.
Judging
from the foregoing facts, it would appear that respondent Manzano is born a
Filipino and a US
citizen. In other words, he holds dual citizenship.
The
question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for
the office he seeks to be elected?
Under
Section 40(d) of the Local Government Code, those holding dual citizenship are
disqualified from running for any elective local position.
WHEREFORE,
the Commission hereby declares the respondent Eduardo Barrios Manzano
DISQUALIFIED as candidate for Vice-Mayor of Makati City.”
QUESTION: Is the COMELEC ruling correct?
Explain.
Answer NO 13: COMELEC IS
WRONG.ERNESTO S. MERCADO, petitioner,vs.EDUARDO BARRIOS MANZANO and the
COMMISSION ON ELECTIONS, respondents. G.R. No. 135083 May 26, 1999
The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A.
No. 7160), which
declares as “disqualified from running for any elective local position: . . .
(d) Those with dual citizenship.” This
provision is incorporated in the Charter of the City of Makati.[xxxix][8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General,
who sides with him in this case, contends that through §40(d) of the Local
Government Code, Congress has “command[ed] in explicit terms the ineligibility
of persons possessing dual allegiance to hold local elective office.”
To begin with, dual citizenship is different from dual
allegiance. The former arises when, as a
result of the concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by the said states.[xl][9]
For instance, such a situation may
arise when a person whose parents are citizens of a state which adheres to the
principle of jus sanguinis is born in a state which follows the doctrine
of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered
a citizen of both states. Considering
the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual
citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and
alien fathers if by the laws of their fathers’ country such children are
citizens of that country;
(3) Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may
be other situations in which a citizen of the Philippines may, without performing any act, be also a
citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation
in which a person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual’s volition.
With respect to dual allegiance, Article IV, §5 of the
Constitution provides: “Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.”
This provision was included in the 1987 Constitution at the instance of
Commissioner Blas F. Ople who explained its necessity as follows:[xli][10]
. . . I want to draw
attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas
Committee according to which a dual allegiance - and I reiterate a dual allegiance - is larger and more threatening than that of mere double
citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of
mixed marriages or of birth on foreign soil.
And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take
constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the
triennial elections
of the Federation of Filipino-Chinese Chambers of Commerce which consists of
about 600 chapters all over the country.
There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the
Filipino-Chinese community is represented in the Legislative Yuan of the
Republic of China in Taiwan. And until recently, the sponsor might recall,
in Mainland China in the People’s Republic of China, they have the Associated Legislative
Council for overseas Chinese wherein all of Southeast Asia including some
European and Latin countries were represented, which was dissolved after
several years because of diplomatic friction.
At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this
unsettled kind of allegiance of Filipinos, of citizens who are already
Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner Villacorta,
who were concerned about the lack of guarantees of thorough assimilation, and
especially Commissioner Concepcion who has always been worried about minority
claims on our natural resources.
Dual allegiance can actually siphon scarce national capital
to Taiwan,
Singapore,
China
or Malaysia,
and this is already happening. Some of
the great commercial places in downtown Taipei
are Filipino-owned, owned by Filipino-Chinese ¾ it is of common knowledge in Manila. It can mean a tragic capital outflow when we
have to endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask ¾ that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship
which will read as follows: DUAL
ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these
citizens with dual allegiance, thus:[xlii][11]
. . . A significant
number of Commissioners expressed their concern about dual citizenship in the
sense that it implies a double allegiance under a double sovereignty which some
of us who spoke then in a freewheeling debate thought would be repugnant to the
sovereignty which pervades the Constitution and to citizenship itself which
implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of
course, the obligation to rise to the defense of the State when it is
threatened, and back of this, Commissioner Bernas, is, of course, the concern
for national security. In the course of
those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the
People’s Republic of
China was made in 1975, a good number of these naturalized Filipinos still
routinely go to Taipei every October 10; and it is asserted that some of them
do renew their oath of allegiance to a foreign government maybe just to enter
into the spirit of the occasion when the anniversary of the Sun Yat-Sen
Republic is commemorated. And so, I have
detected a genuine and deep concern about double citizenship, with its
attendant risk of double allegiance which is repugnant to our sovereignty and
national security. I appreciate what the
Committee said that this could be left to the determination of a future
legislature. But considering the scale
of the problem, the real impact on the security of this country, arising from,
let us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the proper
time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including §5 in Article IV on citizenship, the
concern of the Constitutional Commission
was not with dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase “dual
citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring
to “dual allegiance.” Consequently,
persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to
the termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence of
conflicting laws of different states. As
Joaquin G. Bernas,
one of the most perceptive members of the Constitutional Commission, pointed out: “[D]ual citizenship
is just a reality imposed on us because we have no control of the laws on citizenship of other
countries. We recognize a child of a
Filipino mother. But whether or not she
is considered a citizen of another country is something completely beyond our
control.”[xliii][12]
By electing Philippine citizenship, such candidates at the
same time forswear allegiance to the other country of which they are also
citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of
its laws, such an individual has not effectively renounced his foreign
citizenship. That is of no moment as the following discussion on
§40(d) between Senators Enrile and Pimentel clearly shows:[xliv][13]
SENATOR ENRILE. Mr. President, I would like to ask
clarification of line 41, page 17: “Any person with dual citizenship” is
disqualified to run for any elective local position. Under the present Constitution, Mr.
President, someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born
citizen, upon reaching the age of majority, must elect or give up Philippine
citizenship.
On the assumption that this person would carry two passports,
one belonging to the country of his or her father and one belonging to the
Republic of the Philippines,
may such a situation
disqualify the person to run for a local government position?
SENATOR PIMENTEL. To
my mind, Mr. President, it only means that at the moment when he would want to
run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE.
Suppose he carries only a Philippine passport but the country of origin
or the country of the father claims that person, nevertheless, as a
citizen? No one can renounce. There are such countries in the world.
SENATOR PIMENTEL.
Well, the very fact that he is running for public office would, in
effect, be an election for him of his desire to be considered as a Filipino
citizen.
SENATOR ENRILE. But,
precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother
is a citizen of the Philippines
is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL.
Yes. What we are saying, Mr.
President, is: Under the Gentleman’s example, if he does not renounce his other citizenship, then
he is opening himself to question. So,
if he is really interested to run, the first thing he should do is to say in
the Certificate of Candidacy that: “I am a Filipino citizen, and I have only
one citizenship.”
SENATOR ENRILE. But we
are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that
is the citizenship invested upon him or her in the Constitution of the
Republic.
SENATOR PIMENTEL. That
is true, Mr. President. But if he
exercises acts that will prove that he also acknowledges other citizenships,
then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for
naturalization must renounce “all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty”[xlv][14] of which at
the time he is a subject or citizen before he can be issued a certificate of
naturalization as a citizen of the Philippines. In Parado v. Republic,[xlvi][15]
it was held:
[W]hen a
person applying for citizenship by naturalization takes an oath that he
renounces his loyalty to any other country or government and solemnly declares
that he owes his allegiance to the Republic of the Philippines, the condition imposed
by law is satisfied and complied with.
The determination whether such renunciation is valid or fully complies
with the provisions of our Naturalization Law lies within the province and is
an exclusive prerogative of our courts.
The latter should apply the law duly enacted by the legislative department
of the Republic. No foreign law may or should interfere with its operation and
application. If the requirement of the
Chinese Law of Nationality were to be read into our Naturalization Law, we
would be applying not what our legislative department has deemed it wise to
require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all
cost. It would be a brazen encroachment
upon the sovereign will and power of the people of this Republic.
The record shows that private respondent was born in San Francisco, California
on September 4, 1955,
of Filipino parents. Since the
Philippines adheres to the principle of jus sanguinis, while the United
States follows the doctrine of jus soli, the parties agree that, at
birth at least, he was a national both of the Philippines and of the United
States. However, the COMELEC en banc
held that, by participating in Philippine elections in 1992, 1995, and 1998, private
respondent “effectively renounced his U.S.
citizenship under American law,” so that now he is solely a Philippine
national.
Petitioner challenges this ruling. He argues that merely taking part in
Philippine elections
is not sufficient evidence of renunciation and that, in any event, as the
alleged renunciation was made when private respondent was already 37 years old,
it was ineffective as it should have been made when he reached the age of
majority.
In holding that by voting in Philippine elections private respondent renounced his
American citizenship, the COMELEC must have in mind §349 of the Immigration and
Nationality Act of the United States, which provided that “A person who is a
national of the United States, whether by birth or naturalization, shall lose
his nationality by: . . . (e) Voting
in a political election in a foreign state or participating in an election or
plebiscite to determine the sovereignty over foreign territory.” To be sure this provision was declared
unconstitutional by the U.S.
Supreme Court in Afroyim v. Rusk[xlvii][16] as beyond
the power given to the U.S.
Congress to regulate foreign relations.
However, by filing a certificate of candidacy when he ran for his
present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship.
Private respondent’s
certificate of candidacy, filed on March 27, 1998, contained the following statements made
under oath:
6. I AM A FILIPINO
CITIZEN (STATE IF “NATURAL-BORN” OR “NATURALIZED”) NATURAL-BORN
. . . .
10. I AM A REGISTERED
VOTER OF PRECINCT NO.
747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY
OF MAKATI,
PROVINCE OF NCR .
11. I AM NOT A PERMANENT
RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR
THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE
FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND
DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT
MENTAL RESERVATION OR PURPOSE OF EVASION.
I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY
OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to
renounce his American citizenship, effectively removing any disqualification he
might have as a dual citizen. Thus, in Frivaldo
v. COMELEC it was held:[xlviii][17]
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of
the Local Government Code would disqualify him “from running for any elective
local position?” We answer this question
in the negative, as there is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of allegiance and even before that,
when he ran for governor in 1988. In his
Comment, Frivaldo wrote that he “had long renounced and had long abandoned his
American citizenship-long before May 8, 1995. At best, Frivaldo was stateless in the
interim-when he abandoned and renounced his US citizenship
but before he was repatriated to his Filipino citizenship.”
On this point, we quote from the assailed Resolution dated December 19, 1995:
“By the laws of the United States, petitioner Frivaldo lost
his American citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government.”
These factual findings that Frivaldo has lost his foreign
nationality long before the elections
of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings
of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioner’s contention that the oath of allegiance
contained in private respondent’s certificate of candidacy is insufficient to constitute
renunciation of his American citizenship.
Equally without merit is petitioner’s contention that, to be effective, such renunciation
should have been made upon private respondent reaching the age of majority
since no law requires the election of Philippine citizenship to be made upon
majority age.
Finally, much is made of the fact that private respondent
admitted that he is registered as an American citizen in the Bureau of
Immigration and Deportation and that he holds an American passport which he
used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of
candidacy on March 21, 1998,
he had dual citizenship. The acts
attributed to him can be considered simply as the assertion of his American
nationality before the termination of his American citizenship. What this Court said in Aznar v. COMELEC[xlix][18]
applies mutatis mutandis to private respondent in the case at bar:
. . . Considering the fact that admittedly OsmeƱa was both a
Filipino and an American, the mere fact that he has a Certificate stating he is
an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American
does not mean that he is not still a Filipino, possessed as he is, of both
nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to tell,
there is even no implied renunciation of said citizenship. When We consider that the renunciation needed
to lose Philippine citizenship must be “express,” it stands to reason that
there can be no such loss of Philippine citizenship when there is no
renunciation, either “express” or “implied.”
To recapitulate, by declaring in his certificate of candidacy
that he is a Filipino citizen; that he is not a permanent resident or immigrant
of another country; that he will defend and support the Constitution of the
Philippines and bear true faith and allegiance thereto and that he does so
without mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and
anything which he may have said before as a dual citizen.
On the other hand, private respondent’s oath of allegiance to
the Philippines, when considered with the fact that he has spent his youth and
adulthood, received his education, practiced his profession as an artist, and
taken part in past elections in this country, leaves no doubt of his election
of Philippine citizenship.
His declarations will be taken upon the faith that he will
fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring
the loss of his Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago,[l][19]
we sustained the denial of entry into the country of petitioner on the ground
that, after taking his oath as a naturalized citizen, he applied for the
renewal of his Portuguese passport and declared in commercial documents
executed abroad that he was a Portuguese national. A similar sanction can be taken against any
one who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine
citizenship
CASE
NO. 14.FACTS: The facts are as follows:
Pursuant to Art. X, §18 of the 1987 Constitution, Congress
passed R.A. No. 6734, the Organic Act for the Autonomous Region in Muslim
Mindanao, calling for a plebiscite to be held in the provinces of Basilan,
Cotobato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan,
South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and
Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General
Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga. In the ensuing
plebiscite held on November
16, 1989, four provinces voted in favor of creating an autonomous
region. These are the provinces of Lanao del Sur, Maguindanao, Sulu and
Tawi-Tawi. In accordance with the constitutional provision, these provinces
became the Autonomous Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not
voting in favor of the Autonomous Region, Art. XIX, § 13 of R.A. No. 6734
provides,
That only the provinces and cities voting favorably in such
plebiscites shall be included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions. Provided,
however, that the President may, by administrative determination, merge the
existing regions.
Pursuant to the authority granted by this provision, then
President Corazon C. Aquino issued on October 12, 1990 Executive Order No. 429, "providing
for the Reorganization of the Administrative Regions in Mindanao."
Under this Order, as amended by E.O. No. 439
(1) Misamis
Occidental, at present part of Region X, will become part of Region IX.
(2) Oroquieta City, Tangub City
and Ozamiz City, at present parts of Region X will
become parts of Region IX.
(3) South
Cotobato, at present a part of Region XI, will become part of Region XII.
(4) General Santos City,
at present part of Region XI, will become part of Region XII.
(5) Lanao
del Norte, at present part of Region XII, will become part of Region IX.
(6) Iligan City
and Marawi City, at present part of Region XII,
will become part of Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time
of the filing of their petition, members of Congress representing various
legislative districts in South Cotobato, Zamboanga del Norte, Basilan, Lanao
del Norte and Zamboanga City. On November 12, 1990, they wrote then President Aquino
protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick
certain provinces and cities within the existing regions some of which did not even take part in the
plebiscite as in the case of the province of Misamis Occidental and the cities
of Oroquieta, Tangub and Ozamiz and
restructure them to new administrative regions. On the other hand, the law
(Sec. 13, Art. XIX, R.A. 6734) is specific to the point, that is, that
"the provinces and cities which in the plebiscite do not vote for
inclusion in the Autonomous Region shall remain in the existing administrative
regions."
The transfer of the provinces of Misamis Occidental from
Region X to Region IX; Lanao del Norte from Region XII to Region IX, and South
Cotobato from Region XI to Region XII are alterations of the existing
structures of governmental units, in other words, reorganization. This can be
gleaned from Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize the
administrative regions in Mindanao to guarantee the effective delivery of field
services of government agencies taking into consideration the formation of the
Autonomous Region in Muslim Mindanao.
With due respect to
Her Excellency, we submit that while the authority necessarily includes the
authority to merge, the authority to merge does not include the authority to
reorganize. Therefore, the President's authority under RA 6734 to "merge
existing regions" cannot be construed to include the authority to
reorganize them. To do so will violate the rules of statutory construction.
The transfer of
regional centers under Executive Order 429 is actually a restructuring
(reorganization) of administrative regions. While this reorganization, as in
Executive Order 429, does not affect the apportionment of congressional
representatives, the same is not valid under the penultimate paragraph of Sec.
13, Art. XIX of R.A. 6734 and Ordinance appended to the 1986 Constitution
apportioning the seats of the House of Representatives of Congress of the Philippines to
the different legislative districts in provinces and cities.
As their protest
went unheeded, while Inauguration Ceremonies of the New Administrative Region
IX were scheduled on January
26, 1991, petitioners brought this suit for certiorari and
prohibition.
On the other hand,
the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of Zamboanga City, who is suing in the capacity of
taxpayer and citizen of the Republic of the Philippines.
Petitioners in both
cases contend that Art. XIX, §13 of R.A. No. 6734 is unconstitutional because
(1) it unduly delegates legislative power to the President by authorizing him
to "merge [by administrative determination] the existing regions" or
at any rate provides no standard for the exercise of the power delegated and
(2) the power granted is not expressed in the title of the law.
In addition,
petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the
ground that the power granted by Art. XIX, §13 to the President is only to
"merge regions IX and XII" but not to reorganize the entire
administrative regions in Mindanao and certainly not to transfer the regional
center of Region IX from Zamboanga City to Pagadian City.
QUESTIONS: 1. Given the
set of facts, is it within the power of the President to merge administrative
regions, transfer regional seats? Explain.
2.Discuss the validity/invalidity of
the issues raised by petitioner Jaldon.
Answer no. 14: JAMES L.
CHIONGBIAN, ET AL. vs. OSCAR M. ORBOS, ET AL. (G.R. No. 96754 June 22, 1995) It
is within the political prerogatives of the president to merge administrative
regions.Jaldon therefore is wrong. POLITICAL
LAW; LOCAL GOVERNMENT; AUTONOMOUS REGIONS; POWER TO MERGE ADMINISTRATIVE
AGENCIES; TRADITIONALLY LODGED WITH THE PRESIDENT TO FACILITATE THE EXERCISE OF
THE POWER OF GENERAL SUPREVISION. — On September 9, 1968, R.A. No.
5435 was passed "authorizing the President of the Philippines,
with the help of a Commission on Reorganization, to reorganize the different
executive departments, bureaus, offices, agencies and instrumentalities of the
government, including banking or financial institutions and corporations owned
or controlled by it." The purpose was to promote "simplicity, economy
and efficiency in the government." The Commission on Reorganization
created under the law was required to submit an integrated reorganization plan
not later than December 31,
1969 to the President who was in turn required to submit the plan
to Congress within forty days after the opening of its next regular session.
The law provided that any reorganization plan submitted would become effective
only upon the approval of Congress. Accordingly, the Reorganization Commission
prepared an Integrated Reorganization Plan which divided the country into
eleven administrative regions. By P.D.
No. 1, the Plan was approved and made part of the law of the land on September
24, 1972. P.D. No. 1 was twice amended in 1975, first by P.D.No. 742 which
"restructur[ed] the regional organization of Mindanao,
Basilan, Sulu and Tawi-Tawi" and later by P.D. No. 773 which further
"restructur[ed] the regional organization of Mindanao
and divid[ed] Region IX into two sub-regions." In 1978, P.D. No. 1555
transferred the regional center of Region IX from Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of administrative regions have been
by the President pursuant to authority granted to him by law. In conferring on
the President the power "to merge [by administrative determination] the
existing regions" following the establishment of the Autonomous Region in
Muslim Mindanao, Congress merely followed the pattern set in previous
legislation dating back to the initial organization of administrative regions
in 1972. The choice of the President as delegate is logical because the
division of the country into regions is intended to facilitate not only the
administration of local governments but also the direction of executive
departments which the law requires should have regional offices. As this Court
observed in Abbas, "while the power to merge administrative regions is not
expressly provided for in the Constitution, it is a power which has
traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X, §4 of the
Constitution]." The regions themselves are not territorial and political
divisions like provinces, cities, municipalities and barangays but are
"mere groupings of contiguous provinces for administrative
purposes." The power conferred on
the President is similar to the power to adjust municipal boundaries which has
been described in Pelaez v. Auditor
General (122 Phil. 965, 973-4 [1965]) as "administrative in nature."
There is, therefore, no abdication by Congress of its legislative power in
conferring on the President the power to merge administrative regions.
PROVISION THAT PROVINCES AND
CITIES WHICH DO NOT VOTE FOR INCLUSION THEREIN SHALL REMAIN IN THE EXISTING
ADMINISTRATIVE REGIONS; QUALIFIED. — While Art. XIX, §13 provides that
"The provinces and cities which do not vote for inclusion in the Autonomous
Region shall remain in the existing administrative regions," this
provision is subject to the qualification that "the President may by
administrative determination merge the existing regions." This means that
while non-assenting provinces and cities are to remain in the regions as
designated upon the creation of the Autonomous Region, they may nevertheless be
regrouped with contiguous provinces forming other regions as the exigency of
administration may require. The regrouping is done only on paper. It involves
no more than a redefinition of the lines separating administrative regions for
the purpose of facilitating the administrative supervision of local government
units by the President and insuring the efficient delivery of essential
services. There will be no "transfer" of local governments from one
region to another except as they may thus be regrouped so that a province like
Lanao del Norte, which is at present part of Region XII, will become part of
Region IX. The regrouping of contiguous provinces is not even analogous to a
redistricting or to the division or merger of local governments, which all have
political consequences on the right of people residing in those political units
to vote and to be voted for. It cannot be overemphasized that administrative
regions are mere groupings of contiguous provinces for administrative purposes,
not for political representation. Petitioners nonetheless insist that only
those regions, in which the provinces and cities which voted for inclusion in
the Autonomous Region are located, can be "merged" by the President.
To be sure Art. XIX, §13 is not so limited. But the more fundamental reason is
that the President's power cannot be so limited without neglecting the
necessities of administration. It is noteworthy that the petitioners do not
claim that the reorganization of the regions in E.O. No. 429 is irrational. The
fact is that, as they themselves admit, the reorganization of administrative
regions in E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity
and geographical features; (a) transportation and communication facilities; (3)
cultural and language groupings; (4) land area and population; (5) existing
regional centers adopted by several agencies; (6) socio-economic development
programs in the regions and (7) number of provinces and cities. What has been
said above applies to the change of the regional center from Zamboanga City
to Pagadian City. Petitioners contend that the
determination of provincial capitals has always been by act of Congress. But
as, this Court said in Abbas,
administrative regions are mere "groupings of contiguous provinces
for administrative purposes. . . [They] are not territorial and political
subdivisions like provinces, cities, municipalities and barangays." There
is, therefore, no basis for contending that only Congress can change or
determine regional centers. To the contrary, the examples of P.D. Nos. 1, 742,
773 and 1555 suggest that the power to reorganize administrative regions
carries with it the power to determine the regional center. It may be that the
transfer of the regional center in Region IX from Zamboanga City
to Pagadian City may entail the expenditure of large
sums of money for the construction of buildings and other infrastructures to
house regional offices. That contention is addressed to the wisdom of the
transfer rather than to its legality and it is settled that courts are not the
arbiters of the wisdom or expediency of legislation. In any event this is a
question that we will consider only if fully briefed and upon a more adequate
record than that presented by petitioners.
CASE No 15.Facts:
Juan Calderon was born on 20 August 1939.His grandfather was Pedro Calderon, a
Spanish national, who died in the Philippines on September 11, 1954.His father
was Andoy Calderon who married on September 16, 1940 Jean Stuart, an American
national. The records futher showed that Andoy got married to Juana Calingasan
on August 12, 1938.
Questions: 1. Juan Calderon would like to run as
Vice-President of the Philippines
in the next election. Is he qualified to run? Explain.
2.Granting that he filed his certificate of candidacy as Vice-President,
can his opponent file an election protest
against him before the
Presidential Electoral Tribunal? Explain.
ANSWER no. 15:
He is qualified considering that he is a Filipino citizen,his citizenship
derived from his grandfather who was considered by law as Filipino citizen
under the Jones Law of 1902. ON the
other hand, the election protest should be dismissed because of lack of
jurisdiction. The PET has jurisdiction only until one of the candidates is
already proclaimes president.In this case, no one is yet proclaimed.(TECSON V.
COMELEC, 161434, March 3,
2004)
CASE NO. 16.Facts:
Manuel S. Pineda was employed with the Philippine National Oil Co.-Energy
Development Corp. (PNOC-EDC), as subsidiary of the Philippine National Oil Co.,
from September 17, 1981, when he was hired as clerk, to January 26, 1989, when
his employment was terminated. The events leading to his dismissal from his job
are not disputed.
In
November, 1987, while holding the position of Geothermal Construction
Secretary, Engineering and Construction Department, at Tongonan Geothermal
Project, Ormoc City, Pineda decided to run for
councilor of the Municipality
of Kananga, Leyte, in the local elections scheduled in January, 1988,
and filed the corresponding certificate of candidacy for the position.
Objection to Pineda's being a candidate while retaining his job in the PNOC-EDC
was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte.
The mayor communicated with the PNOC-EDC
thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal
Project to express the view that Pineda
could not actively participate in politics unless he officially resigned from
PNOC-EDC. 1 Nothing seems to have resulted from this protest.
The
local elections in Leyte, scheduled for
January 1988, were reset to and held on February 1, 1988. Pineda was among the official candidates
voted for, and eventually proclaimed elected to, the office of councilor. Some
vacillation appears to have been evinced by Pineda at about this time. On
February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to
withdraw from the political contest on account of what he considered to be
election irregularities; and on March
19, 1988, he wrote to the Secretary of Justice seeking legal opinion on the
question, among others, of whether or not he was "considered automatically
resigned upon . . . filing of . . . (his) certificate of candidacy," and
whether or not, in case he was elected, he could "remain appointed to any
corporate offspring of a government-owned or controlled corporation." Nevertheless, Pineda took his oath of office
in June, 1988 as councilor-elect of the Municipality of Kananga,
Leyte.
And despite so qualifying as councilor, and assuming his duties as such,
he continued working for PNOC-EDC as the latter's Geothermal Construction
Secretary, Engineering and Construction Department, at Tongonan Geothermal
Project, Ormoc City.
QUESTIONS:
1. Does the Civil Service Commission cover Pineda’s appointment? Explain.
2.Is he
considered resigned from his employment with the PNOC when he filed his
certificatet of candidacy? Explain.
ANSWER no. 16: PNOC ENERGY DEV'T. CORP., ET AL. vs. NAT'L
LABOR RELATIONS COMMISSION, ET AL. G.R. No. 100947 May 31,
1993 1. CONSTITUTIONAL LAW; CIVIL SERVICE;
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITHOUT ORIGINAL CHARTERS, NOT
EMBRACED THEREIN. — Section 2 (1), Article IX of the 1987 Constitution provides
as follows: "The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned
or controlled corporations with original charters." Implicit in the
provision is that government-owned or controlled corporations without original
charters — i.e., organized under the general law, the Corporation Code - are
not comprehended within the Civil Service, and their employees are not subject
to Civil Service Law. So has this Court construed the provision. (NASECO, et.
al. v. NLRC, et al., 166 SCRA 122, Lumanta, et. al. v. NLRC, et al., 170 SCRA
79, PNOC-EDC v. Leogardo, et. al., 175 SCRA 29).
2. ID.;
OMNIBUS ELECTION CODE; CANDIDATES HOLDING APPOINTIVE OFFICE OR POSITION
CONSIDERED IPSO FACTO RESIGNED UPON FILING OF CERTIFICATE OF CANDIDACY; APPLIES
TO OFFICERS AND EMPLOYEES IN GOVERNMENT-OWNED AND CONTROLLED CORPORATION WITH
OR WITHOUT ORIGINAL CHARTERS. — When the Congress of the Philippines reviewed
the Omnibus Election Code of 1985, in connection with its deliberations on and
subsequent enactment of related and repealing legislation — i.e., Republic Acts
Numbered 7166: "An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and
for Other Purposes" (effective November 26, 1991), 6646: "An Act
Introducing Additional Reforms in the Electoral System and for Other
Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the
Local Elections, etc." (effective November 6, 1987), it was no doubt aware
that in light of Section 2(1), Article IX of the 1987 Constitution: (a)
government-owned or controlled corporations were of two (2) categories — those
with original charters, and those organized under the general law — and (b)
employees of these corporations were of two (2) kinds — those covered by the
Civil Service Law, rules and regulations because employed in corporations
having original charters, and those not subject to Civil Service Law but to the
Labor Code because employed in said corporations organized under the general
law, or the Corporation Code. Yet Congress made no effort to distinguish
between these two classes of government-owned or controlled corporations or
their employees in the Omnibus Election Code or subsequent related statutes,
particularly as regards the rule that an any employee "in government-owned
or controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy." What all this
imports is that Section 66 of the Omnibus Election Code applies to officers and
employees in government-owned or controlled corporations, even those organized
under the general laws on incorporation and therefore not having an original or
legislative charter, and even if they do not fall under the Civil Service Law
but under the Labor Code. In other words, Section 66 constitutes just cause for
termination of employment in addition to those set forth in the Labor Code, as
amended.
Case No. 17.
Petitioner Luis Malaluan and private respondent Joseph
Evangelista were both mayoralty candidates in the Municipality of Kidapawan,
North Cotabato, in the Synchronized National and Local Elections held on May
11, 1992. Private respondent Joseph
Evangelista was proclaimed by the Municipal Board of Canvassers as the duly
elected Mayor for having garnered 10,498 votes as against petitioner’s 9,792
votes. Evangelista was, thus, said to
have a winning margin of 706 votes. But,
on May 22, 1992,
petitioner filed an election protest with the Regional Trial Court contesting
64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the
duly elected municipal mayor of Kidapawan, North Cotabato
with a plurality of 154 votes. Acting without
precedent, the court found private respondent liable not only for Malaluan’s
protest expenses but also for moral and exemplary damages and attorney’s fees.
On February 3, 1994,
private respondent appealed the trial court decision to the COMELEC.
Rule on the propriety of awarding moral and exemplary
damages and attorney’s fees.
Answer no 17: NOT PROPER. What looms large as the issue in
this case is whether or not the COMELEC gravely abused its discretion in
awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that “actual or
compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance
with law.”[li][13] COMELEC Rules of Procedure provide that
“in all election contests the Court may adjudicate damages and attorney’s fees
as it may deem just and as established by the evidence if the aggrieved party
has included such claims in his pleadings.”[lii][14] This appears to require only that the
judicial award of damages be just and that the same be borne out by the
pleadings and evidence. The overriding
requirement for a valid and proper award of damages, it must be remembered, is
that the same is in accordance with law, specifically, the provisions of the
Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that “except as
provided by law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.” The Civil Cod.e
further prescribes the proper setting for allowance of actual or compensatory
damages in the following provisions:
“ART. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be those that are the
natural and probable consequences of the breach of the obligation, and which
the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages which may be reasonably attributed
to the non-performance of the obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall
be liable for all damages which are the natural and probable consequences of
the act or omission complained of. It is not necessary that such damages have
been foreseen or could have reasonably been foreseen by the defendant.”
Considering that actual or compensatory damages are
appropriate only in breaches of obligations in cases of contracts and
quasi-contracts and on the - occasion of crimes and quasi-delicts where the
defendant may be held liable for all damages the proximate cause of which is
the act or omission complained of, the monetary claim of a party in an election
case must necessarily be hinged on either a contract or a quasi-contract or a
tortious act or omission or a crime, in order to effectively recover actual or
compensatory damages.[liii][15] In the absence of any or all of these,
“the claimant must be able to point out a specific provision of law authorizing
a money claim for election protest expenses against the losing party.”[liv][16] For instance, the claimant may cite any
of the following provisions of the Civil Code under the chapter on human
relations, which provisions create obligations not by contract, crime or
negligence, but directly by law:
“ART. 19. Every person must in the exercise of his rights and
in the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
xxx xxx xxx
In any of the cases referred to in this article, whether or
not the defendant’s act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate and distinct civil
action for damages, and for other relief. x x x”[lv][17]
Claimed as part of the damages to which private respondent is
allegedly entitled to, is P169,456.00 constituting salary and other emoluments
from March, 1994 to April, 1995 that would have accrued to him had there not
been an execution of the trial court’s decision pending appeal therefrom in the
COMELEC.
The long-standing rule in this jurisdiction is that
notwithstanding his subsequent ouster as a result of an election protest, an
elective official who has been proclaimed by the COMELEC as winner in an
electoral contest and who assumed office and entered into the performance of
the duties of that office, is entitled to the compensation, emoluments and
allowances legally provided for the position.[lvi][18] We ratiocinated in the case of Rodriguez vs. Tan that:
“This is as it should be.
This is in keeping with the ordinary course of events. This is simple
justice. The emolument must go to the
person who rendered the service unless the contrary is provided. There is no averment in the complaint that he
is linked with any irregularity vitiating his election. This is the policy and the rule that has been
followed consistently in this jurisdiction in connection with positions held by
persons who had been elected thereto but were later ousted as a result of an
election protest. The right of the
persons elected to compensation during their incumbency has always been
recognized. We cannot recall of any precedent wherein the contrary rule has
been upheld.”[lvii][19]
In his concurring opinion in the same case,
however, Justice Padilla equally stressed that, while the general rule is that
the ousted elective official is not obliged to reimburse the emoluments of
office that he had received before his ouster, he would be liable for damages
in case he would be found responsible for any unlawful or tortious acts in
relation to his proclamation. We quote
the pertinent portion of that opinion for emphasis:
“Nevertheless, if the defendant, directly or indirectly, had
committed unlawful or tortious acts which led to and resulted in his
proclamation as senator-elect, when in truth and in fact he was not so elected,
he would be answerable for damages. In that event the salary, fees and
emoluments received by or paid to him during his illegal incumbency would be a
proper item of recoverable damage.“[lviii][20]
The criterion for ajustifiable award of
election protest expenses and salaries and emoluments, thus, remains to be the
existence of a pertinent breach of obligations arising from contracts or
quasi-contracts, tortious acts, crimes or a specific legal provision
authorizing the money claim in the context of election cases. Absent any of these, we could not even begin
to contemplate liability for damages in election cases, except insofar as
attorney’s fees are concerned, since the Civil Code enumerates the specific
instances when the same may be awarded by the court.
“ART. 2208. In the absence of stipulation, attorney’s fees
and expenses of litigation, other than judicial costs, cannot be recovered,
except:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution against the
plaintiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and
evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just
and demandable claim;
(6) In actions for legal support;
(7) In actions for the
recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for
indemnity under workmen’s compensation and employer’s liability laws;
(9) In a separate civil
action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and
equitable that attorney’s fees and expenses of litigation should be recovered.”[lix][21]
Given the aforecited laws, and jurisprudence on the matter at
issue, let us now look into the basis of respondent COMELEC for awarding actual
damages to private respondent in the form of reimbursement for attorney’s fees,
actual expenses for xerox copies, and salary and other emoluments that should
have accrued to him from March, 1994 to April, 1995 had the RTC not issued an
order for execution pending appeal.
The First Division of the COMELEC ruled on private
respondent’s claim for actual or compensatory damages in this wise:
“x x x under the present legal setting, it is more difficult
than in the past to secure an award of actual or compensatory damages either
against the protestant or the protestee because of the requirements of the law.
In the instant case, however, We are disposed to conclude
that the election protest filed by the protestant is clearly unfounded. As borne out by the results of the
appreciation of ballots conducted by this Commission, apparently the protest
was filed in bad faith without sufficient cause or has been filed for the sole
purpose of molesting the protestee-appellant for which he incurred
expenses. The erroneous ruling of the
Court which invalidated ballots which were clearly valid added more injury to
the protestee-appellant. This would have
been bearable since he was able to perfect his appeal to this Commission. The final blow, however, came when the Court
ordered the execution of judgment pending appeal which, from all indications,
did not comply with the requirements of Section 2, Rule 39 of the Rules of
Court. There was no good and special
reason at all to justify the execution ofjudgment pending appeal because the
protestee’s winning margin was 149 votes while that of the protestant - after
the Court declared him a winner - was only a margin of 154 votes. Clearly, the
order of execution of judgment pending appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the
following:
‘1. Actual damages representing attorney’s fees for the new
counsel who handled the Appeal and the Petition for Certiorari before the Court
of Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellant’s Brief and
the annexes (14 copies at P 1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x -
P3,919.20
4. Actual damages for loss of salary and other emoluments
since March 1994 as per attached Certification issued by the Municipal Account
of Kidapawan x x x - P96,832.00 (up to October 1994 only)’
Under Article 2208 of the New Civil Code attorney’s fees and
expenses of litigation can be recovered (as actual damages) in the case of
clearly unfounded civil action or proceeding.
And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and
allowances (as damages) from elected officials who were later ousted, under the
theory that persons elected has (sic) a right to compensation during their
incumbency, the instant case is different.
The protestee-appellant was the one elected. He was ousted not by final judgment but by an
order of execution pending appeal which was groundless and issued with grave
abuse of discretion. Protestant-appellee
occupied the position in an illegal manner as a usurper and, not having been
elected to the office, but merely installed through a baseless court order, he
certainly had no right to the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorney’s
fees (P3 72,500.00), actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments from March 1994
to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled
P557,110.00. To (sic) this amount,
however, P3 00,000.00 representing that portion of attorney’s fees denominated
as ‘success fee’ must be deducted this being premised on a contingent event the
happening of which was uncertain from the beginning. Moral damages and exemplary damages claimed
are, of course, disallowed not falling within the purview of Section 259 of the
Omnibus Election Code.
It goes without saying that if the protestant-appellee fails
to pay the actual damages of P257,110.00, the amount will be assessed, levied
and collected from the bond of P500,000.00 which he put up before the Court as
a condition for the issuance of the order of execution of judgment pending
appeal.”[lx][22]
Petitioner filed a motion for reconsideration of the
aforecited decision on March
29, 1995. The COMELEC en banc, however, did not find any new matter substantial in
nature, persuasive in character or sufficiently provocative to compel
reconsideration of said decision and accordingly affirmed in toto the said decision.
Hence, this petition raises, among others, the issue now solely
remaining and in need of final adjudication in view of the mootness of the
other issues anent petitioner’s right to the contested office the term for
which has already expired.
We have painstakingly gone over the records of this case and
we can attribute to petitioner no breach of contract or quasi-contract; or
tortious act nor crime that may make him liable for actual damages. Neither has private respondent been “able to
point out to a specific provision of law authorizing a money claim for election
protest expenses against the losing party. “[lxi][23]
We find respondent COMELEC’s reasoning in awarding the
damages in question to be fatally flawed.
The COMELEC found the election protest filed by the petitioner to be
clearly unfounded because its own appreciation of the contested ballots yielded
results contrary to those of the trial court.
Assuming, ex gratia argumentis, that
this is a reasonable observation not without basis, it is nonetheless
fallacious to conclude a malicious intention on the part of petitioner to
molest private respondent on the basis of what respondent COMELEC perceived as
an erroneous ruling of the trial court.
In other words, the actuations of the trial court, after the filing of a
case before it, are its own, and any alleged error on its part does not, in the
absence of clear proof, make the suit “clearly unfounded” for which the
complainant ought to be penalized.
Insofar as the award of protest expenses and attorney’s fees are
concerned, therefore we find them to have been awarded by respondent COMELEC
without basis, the election protest not having been a clearly unfounded one
under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of
judgment pending appeal to be defective because of alleged non-compliance with
the requirement that there be a good and special reason[lxii][24] to justify execution pending appeal. We, however, find that the trial court acted
judiciously in the exercise of its prerogatives under the law in issuing the
order granting execution pending appeal.
First, it should be noted that the applicability of the provisions of
the Rules of Court, relating to execution pending appeal, has ceased to be
debatable after we definitively ruled in Garcia vs. de Jesus[lxiii][25] that “Section 2, Rule 39 of the Rules of
Court, which allows Regional Trial Courts to order executions pending appeal
upon good reasons stated in a special order, may be made to apply by analogy or
suppletorily to election contests decided by them.”[lxiv][26] It is not disputed that petitioner filed
a bond in the amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that “as much recognition
should be given to the value of the decision of a judicial body as a basis for
the right to assume office as that given by law to the proclamation made by the
Board of Canvassers.”[lxv][27]
“x x x Why should the proclamation by the board of canvassers
suffice as basis of the right to assume office, subject to future contingencies
attendant to a protest, and not the decision of a court of justice? Indeed x x x the board of canvassers is
composed of persons who are less technically prepared to make an accurate
appreciation of the ballots, apart from their being more apt to yield
extraneous considerations x x x the board must act summarily, practically
raising (sic) against time, while, on the other hand, the judge has the benefit
of all the evidence the parties can offer and of admittedly better technical
preparation and background, apart from his being allowed ample time for
conscientious study and mature deliberation before rendering judgment x x x.”[lxvi][28]
Without evaluating the merits of the trial court’s actual
appreciation of the ballots contested in the election protest, we note on the
face of its decision that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus see no reason to disregard the
presumption of regularity in the performance of official duty on the part of
the trial court judge. Capping this
combination of circumstances which impel the grant of immediate execution is
the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North
Cotabato. The appeal before
the COMELEC would undoubtedly cause the political vacuum in said municipality
to persist, and so the trial court reasonably perceived execution pending
appeal to be warranted and justified.
Anyway, the bond posted by petitioner could cover any damages suffered
by any aggrieved party. It is true that
mere posting of a bond is not enough reason to justify execution pending appeal,
but the nexus of circumstances aforechronicled considered together and in
relation to one another, is the dominant consideration for the execution
pending appeal.[lxvii][29]
Finally, we deem the award of salaries and other emoluments
to be improper and lacking legal sanction.
Respondent COMELEC ruled that inapplicable in the instant case is the
ruling in Rodriguez vs. Tan[lxviii][30] because while in that case the official
ousted was the one proclaimed by the COMELEC, in the instant case, petitioner
was proclaimed winner only by the trial court and assumed office by virtue of
an order granting execution pending appeal.
Again, respondent COMELEC sweepingly concluded, in justifying the award
of damages, that since petitioner was adjudged the winner in the elections only
by the trial court and assumed the functions of the office on the strength
merely of an order granting execution pending appeal, the petitioner occupied
the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a
usurper is one who undertakes to act officially without any color of right,[lxix][31] the petitioner exercised the duties of an
elective office under color of election thereto.[lxx][32] It matters not that it was the trial
court and not the COMELEC that declared petitioner as the winner, because both,
at different stages of the electoral process, have the power to so proclaim
winners in electoral contests. At the
risk of sounding repetitive, if only to emphasize this point, we must reiterate
that the decision of a judicial body is no less a basis than the proclamation
made by the COMELEC-convened Board of Canvassers for a winning candidate’s
right to assume office, for both are undisputedly legally sanctioned. We deem
petitioner, therefore, to be a “de facto officer
who, in good faith, has haa possession of the office and had discharged the
duties pertaining thereto”[lxxi][33] and is thus “legally entitled to the
emoluments of the office.”[lxxii][34]
To recapitulate, Section 259 of the Omnibus Election Code
only provides for the granting in election cases of actual and compensatory
damages in accordance with law. The
victorious party in an election case cannot be indemnified for expenses which
he has incurred in an electoral contest in the absence of a wrongful act or omission
or breach of obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by
private respondent due to the execution ofjudgment pending appeal, that damage
may be said to be equivalent to damnum
absque injuria, which is, damage without injury, or damage or injury
inflicted without injustice, or loss or damage without violation of a legal
right, or a wrong done to a man for which the law provides no remedy.[lxxiii][35]
MALALUAN V. COMELEC, 120193, MARCH 6, 1996
CASE No. 18. Petitioner
was proclaimed Mayor of Gloria, Oriental Mindoro
during the May 8, 1995
elections.
In the same elections, private respondent was proclaimed
Vice-Mayor of the same municipality.
On May 19, 1995,
petitioner’s rival candidate, the late Nicolas M. Jamilla, filed an election
protest[lxxiv][1] before the Regional Trial Court of
Pinamalayan, Oriental Mindoro.[lxxv][2]
During the pendency of said contest, Jamilla died.[lxxvi][3] Four days after such death or on December 19, 1995, the
trial court dismissed the election protest ruling as it did that “[a]s this
case is personal, the death of the protestant extinguishes the case
itself. The issue or issues brought out
in this protest have become moot and academic.”[lxxvii][4]
On January 9,
1995, private respondent learned about the dismissal of the protest
from one Atty. Gaudencio S. Sadicon, who, as
the late Jamilla’s counsel, was the one who informed the trial court of his
client’s demise.
On January 15,
1996, private respondent filed his Omnibus Petition/Motion (For
Intervention and/or Substitution with Motion for Reconsideration).[lxxviii][5] Opposition thereto was filed by petitioner
on January 30, 1996.[lxxix][6]
In an Order dated February 14, 1996,[lxxx][7] the trial court denied private respondent’s
Omnibus Petition/Motion and stubbornly held that an election protest being
personal to the protestant, is ipso facto terminated by the latter’s
death
Question: Is the ruling of the RTC
correct?
Answer no 18: It is true that a public office is personal to
the public officer and is not a property transmissible to his heirs upon death.[lxxxi][9]
Thus, applying the doctrine of actio personalis moritur cum persona,
upon the death of the incumbent, no heir of his may be allowed to continue
holding his office in his place.
But while the right to a
public office is personal and exclusive to the public officer, an election
protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority
to continue the protest proceedings.
An election contest, after
all, involves not merely conflicting private aspirations but is imbued with
paramount public interests. As we have
held in the case of Vda. de De Mesa v. Mencias:[lxxxii][10]
“x x x. It is axiomatic that an election contest,
involving as it does not only the adjudication and settlement of the private
interests of the rival candidates but also the paramount need of dispelling
once and for all the uncertainty that beclouds the real choice of the
electorate with respect to who shall discharge the prerogatives of the offices
within their gift, is a proceeding imbued with public interest which raises it
onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public
policy impose upon courts the imperative duty to ascertain by all means within
their command who is the real candidate elected in as expeditious a manner as
possible, without being fettered by technicalities and procedural barriers to
the end that the will of the people may not be frustrated (Ibasco vs.
Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De
Luna, G.R. L-13242, July 31, 1958). So
inextricably intertwined are the interests of the contestants and those of the
public that there can be no gainsaying the logic of the proposition that even
the voluntary cessation in office of the protestee not only does not ipso
facto divest him of the character of an adversary in the contest inasmuch
as he retains a party interest to keep his political opponent out of the office
and maintain therein his successor, but also does not in any manner impair or
detract from the jurisdiction of the court to pursue the proceeding to its
final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597;
Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
Upon the same principle, the
death of the protestee De Mesa did not abate the proceedings in the election
protest filed against him, and it may stated as a rule that an election contest
survives and must be prosecuted to final judgment despite the death of the
protestee.”[lxxxiii][11]
The death of the protestant,
as in this case, neither constitutes a ground for the dismissal of the contest
nor ousts the trial court of its jurisdiction to decide the election
contest. Apropos is the following pronouncement
of this court in the case of Lomugdang v. Javier:[lxxxiv][12]
“Determination of what
candidate has been in fact elected is a matter clothed with public interest,
wherefore, public policy demands that an election contest, duly commenced, be
not abated by the death of the contestant.
We have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias,
G.R. No. L-24583, October 29, 1966, in the same spirit that led this Court to
hold that the ineligibility of the protestant is not a defense (Caesar vs.
Garrido, 53 Phil. 57), and that the protestee’s cessation in office is not a
ground for the dismissal of the contest nor detract the Courts jurisdiction to
decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs.
Hernandez, 62 Phil. 584).”[lxxxv][13]
The asseveration of
petitioner that private respondent is not a real party in interest entitled to
be substituted in the election protest in place of the late Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de Mesa
and Lomugdang that:
“x x x the Vice Mayor elect
has the status of a real party in interest in the continuation of the
proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee
is unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant
if the one duly elected can not assume the post.”[lxxxvi][14]
To finally dispose of this
case, we rule that the filing by private respondent of his Omnibus
Petition/Motion on January
15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla’s counsel informed the trial court of Jamilla’s death, was in compliance with
Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not
generally applicable to election cases, may however be applied by analogy or in
a suppletory character,[lxxxvii][15]
private respondent was correct to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have
been recently reiterated in the 1991 case of De la Victoria vs. COMELEC.[lxxxviii][16]
If only petitioner’s diligence in updating himself with case law is as spirited
as his persistence in pursuing his legal asseverations up to the highest court
of the land, no doubt further derailment of the election protest proceedings
could have been avoided. CASTRO V. COMELEC ,
125249, FEB 1997
CASE NO. 19. Petitioner
Arsenio A. Latasa, was elected mayor of the Municipality of Digos,
Davao del Sur
in the elections of 1992, 1995, and 1998.
During petitioner’s third term, the Municipality of Digos
was declared a component city, to be known as the City of Digos.
A plebiscite conducted on September 8, 2000 ratified Republic Act No.
8798 entitled, “An Act Converting the Municipality of Digos, Davao del Sur
Province into a Component City to be known as the City of Digos” or the
Charter of the City of Digos. This
event also marked the end of petitioner’s tenure as mayor of the Municipality of Digos.
However, under Section 53, Article IX of the Charter, petitioner was
mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001,
petitioner filed his certificate of candidacy for city mayor for the May 14, 2001
elections. He stated therein that he is
eligible therefor, and likewise disclosed that he had already served for three
consecutive terms as mayor of the Municipality of Digos and is now running for
the first time for the position of city mayor.
Question: Is Latasa eligible to run as city mayor?
ANSWER no 19: As seen in the aforementioned provisions,
this Court notes that the delineation of the metes and bounds of the City of Digos did not change even
by an inch the land area previously covered by the Municipality of Digos. This Court also notes that the elective
officials of the Municipality
of Digos continued to
exercise their powers and functions until elections were held for the new city officials.
True, the new city acquired a new corporate existence
separate and distinct from that of the municipality. This does not mean, however, that for the
purpose of applying the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different local government post as
that of the office of the city mayor. As
stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the
municipality. Consequently, the
inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of
voters who elected petitioner Latasa to
be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom
he held power and authority as their chief executive for nine years.
This Court must distinguish
the present case from previous cases ruled upon this Court involving the same
Constitutional provision.
In Borja, Jr. v. COMELEC,[39][18]
the issue therein was whether a vice-mayor who became the mayor by operation of
law and who served the remainder of the mayor’s term should be considered to
have served a term in that office for the purpose of the three-term limit under
the Constitution. Private respondent in
that case was first elected as vice-mayor, but upon the death of the incumbent
mayor, he occupied the latter’s post for the unexpired term. He was, thereafter, elected for two more terms. This Court therein held that when private
respondent occupied the post of the mayor upon the incumbent’s death and served
for the remainder of the term, he cannot be construed as having served a full
term as contemplated under the subject constitutional provision. The term served must be one “for which [the
official concerned] was elected.”
It must also be noted that
in Borja, the private respondent therein, before he assumed the position
of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties
of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief
executive over his local government unit.
In the present case, petitioner, upon ratification of the law converting
the municipality to a city, continued to hold office as chief executive of the
same territorial jurisdiction. There
were changes in the political and economic rights of Digos as local government
unit, but no substantial change occurred as to petitioner’s authority as chief
executive over the inhabitants of Digos.
In Lonzanida v. COMELEC,[40][19]
petitioner was elected and served two consecutive terms as mayor from 1988 to
1995. He then ran again for the same
position in the May 1995 elections, won and discharged his duties as
mayor. However, his opponent contested
his proclamation and filed an election protest before the Regional Trial Court,
which ruled that there was a failure of elections and declared the position of
mayor vacant. The COMELEC affirmed this
ruling and petitioner acceded to the order to vacate the post. During the May 1998 elections, petitioner
therein again filed his certificate of candidacy for mayor. A petition to disqualify him was filed on the
ground that he had already served three consecutive terms. This Court ruled, however, that petitioner
therein cannot be considered as having been duly elected to the post in the May
1995 elections, and that said petitioner did not fully serve the 1995-1998
mayoral term by reason of involuntary relinquishment of office.
In the present case,
petitioner Latasa was,
without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having
involuntarily relinquished his office by reason of the conversion of Digos from
municipality to city? This Court
believes that he did involuntarily relinquish his office as municipal mayor
since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his
office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner
therein, for even just a short period of time, stepped down from office,
petitioner Latasa
never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties
and responsibilities as chief executive of Digos.
In Adormeo
v. COMELEC,[41][20] this Court was confronted with the issue of
whether or not an assumption to office through a recall election should be
considered as one term in applying the three-term limit rule. Private respondent, in that case, was elected
and served for two consecutive terms as mayor.
He then ran for his third term in the May 1998 elections, but lost to
his opponent. In June 1998, his opponent
faced recall proceedings and in the recall elections of May 2000, private
respondent won and served for the unexpired term. For the May 2001 elections, private
respondent filed his certificate of candidacy for the office of mayor. This was questioned on the ground that he had
already served as mayor for three consecutive terms. This Court held therein that private
respondent cannot be construed as having been elected and served for three
consecutive terms. His loss in the May
1998 elections was considered by this Court as an interruption in the
continuity of his service as mayor. For
nearly two years, private respondent therein lived as a private citizen. The same, however, cannot be said of
petitioner Latasa in
the present case.
Finally, in Socrates
v. COMELEC,[42][21] the principal issue was whether or not
private respondent Edward M. Hagedorn was qualified to run during the recall
elections. Therein respondent Hagedorn
had already served for three consecutive terms as mayor from 1992 until 2001 and
did not run in the immediately following regular elections. On July 2, 2002, the barangay officials of Puerto Princesa
convened themselves into a Preparatory Recall Assembly to initiate the recall
of the incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate
of candidacy for mayor in the recall election.
A petition for his disqualification was filed on the ground that he
cannot run for the said post during the recall elections for he was disqualified
from running for a fourth consecutive term.
This Court, however, ruled in favor of respondent Hagedorn, holding that
the principle behind the three-term limit rule is to prevent consecutiveness of
the service of terms, and that there was in his case a break in such
consecutiveness after the end of his third term and before the recall election.
It is evident that in the
abovementioned cases, there exists a rest period or a break in the service of
the local elective official. In Lonzanida,
petitioner therein was a private citizen a few months before the next mayoral
elections. Similarly, in Adormeo
and Socrates, the private respondents therein lived as private citizens
for two years and fifteen months respectively.
Indeed, the law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular
local government unit.
This Court reiterates that
the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor
after having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another
three consecutive terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be
avoided by the Constitution, if not abhorred by it.
Finally, respondent Sunga
claims that applying the principle in Labo v. COMELEC,[43][22] he should be deemed the mayoralty candidate
with the highest number of votes. On the
contrary, this Court held in Labo that the disqualification of a winning
candidate does not necessarily entitle the candidate with the highest number of
votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that
the rule would have been different if the electorate, fully aware in fact and
in law of a candidate’s disqualification so as to bring such awareness within
the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes
by notoriously misapplying their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the next higher number of votes
may be deemed elected. The same,
however, cannot be said of the present case.
This Court has consistently ruled
that the fact that a plurality or a majority of the votes are cast for an
ineligible candidate at a popular election, or that a candidate is later
declared to be disqualified to hold office, does not entitle the candidate who
garnered the second highest number of votes to be declared elected. The same merely results in making the winning
candidate’s election a nullity.[44][23] In the present case, moreover, 13,650 votes
were cast for private respondent Sunga as against the 25,335 votes cast for
petitioner Latasa.[45][24] The second placer is obviously not the choice
of the people in that particular election.
In any event, a permanent vacancy in the contested office is thereby
created which should be filled by succession.[46][25] LATASA V. COMELEC, 154829, DEC. 10, 2003
CASE NO. 20. Distinguish
domicile from residence within the framework of election law.
Answer no 20: DOMINO V. COMELEC, 134015, JULY 19, 1999 It
is doctrinally settled that the term “residence,” as used in the law
prescribing the qualifications for suffrage and for elective office, means the
same thing as “domicile,” which imports not only an intention to reside in a
fixed place but also personal presence in that place, coupled with conduct
indicative of such intention.[lxxxix][21] “Domicile” denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to return.[xc][22] “Domicile” is a question of intention and circumstances. In the consideration of circumstances, three
rules must be borne in mind, namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a time.[xci][23]
Records
show that petitioner’s domicile of origin was Candon, Ilocos Sur[xcii][24] and that sometime in 1991, he acquired a new domicile of
choice at 24 Bonifacio St.
Ayala Heights, Old Balara, Quezon City,
as shown by his certificate of candidacy for the position of representative of
the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had
effectively abandoned his “residence” in Quezon
City and has established a new “domicile” of choice at
the Province of Sarangani.
A
person’s “domicile” once established is considered to continue and will not be
deemed lost until a new one is established.[xciii][25] To successfully effect a change of domicile one must
demonstrate an actual removal or an actual change of domicile; a bona fide
intention of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the purpose.[xciv][26] In other words, there must basically be animus manendi
coupled with animus non revertendi.
The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual.[xcv][27]
It
is the contention of petitioner that his actual physical presence in Alabel,
Sarangani since December 1996 was sufficiently established by the lease of a
house and lot located therein in January 1997 and by the affidavits and
certifications under oath of the residents of that place that they have seen
petitioner and his family residing in their locality.
While
this may be so, actual and physical is not in itself sufficient to show that
from said date he had transferred his residence in that place. To establish a new domicile of choice,
personal presence in the place must be coupled with conduct indicative of that
intention. While “residence” simply
requires bodily presence in a given place, “domicile” requires not only such
bodily presence in that place but also a declared and probable intent to make
it one’s fixed and permanent place of abode, one’s home.[xcvi][28]
As
a general rule, the principal elements of domicile, physical presence in the
locality involved and intention to adopt it as a domicile, must concur in order
to establish a new domicile. No change
of domicile will result if either of these elements is absent. Intention to acquire a domicile without
actual residence in the locality does not result in acquisition of domicile,
nor does the fact of physical presence without intention.[xcvii][29]
The
lease contract entered into sometime in
January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO’s intention to reside in Sarangani but
it does not engender the kind of permanency required to prove abandonment of
one’s original domicile. The mere
absence of individual from his permanent residence, no matter how long, without
the intention to abandon it does not result in loss or change of domicile.[xcviii][30] Thus the date of the contract of lease of a house and lot
located in the province
of Sarangani, i.e.,
15 January 1997,
cannot be used, in the absence of other circumstances, as the reckoning period
of the one-year residence requirement.
Further,
Domino’s lack of intention to abandon
his residence in Quezon City
is further strengthened by his act of registering as voter in one of the
precincts in Quezon City. While voting is not conclusive of residence,
it does give rise to a strong presumption of residence especially in this case
where DOMINO registered in his former
barangay. Exercising the right of
election franchise is a deliberate public assertion of the fact of residence,
and is said to have decided preponderance is a doubtful case upon the place the
elector claims as, or believes to be, his residence.[xcix][31] The fact that a party continuously voted in a particular
locality is a strong factor in assisting to determine the status of his
domicile.[c][32]
His
claim that his registration in Quezon
City was erroneous and was caused by events over which
he had no control cannot be sustained.
The general registration of voters for purposes of the May 1998
elections was scheduled for two (2) consecutive weekends, viz.: June 14,
15, 21, and 22.[ci][33]
While,
Domino’s intention to establish
residence in Sarangani can be gleaned from the fact that be bought the house he
was renting on November 4, 1997, that he sought cancellation of his previous
registration in Quezon City on 22 October 1997,[cii][34] and that he applied for transfer of registration from
Quezon City to Sarangani by reason of change of residence on 30 August 1997,[ciii][35] DOMINO still falls
short of the one year residency requirement under the Constitution.
In
showing compliance with the residency requirement, both intent and actual
presence in the district one intends to represent must satisfy the length of
time prescribed by the fundamental law.[civ][36] Domino’s failure to
do so rendered him ineligible and his election to office null and void.[cv][37]
End
of the examination
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