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.

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.

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. Español, 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.

Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require -

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. Nuñez, 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 8^th 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:

SEC. 5.  Disqualifications. – The following shall be disqualified from voting under this Act:

a)   Those who have lost their Filipino citizenship in accordance with Philippine laws;

b)   Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

c)   Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on  execution of judgments;

d)   An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act.  Such affidavit shall also state that he/she has not applied for citizenship in another country.  Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

e)   Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is “recognized as such in the host country” because immigration or permanent residence in another country implies renunciation of 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.

Thus, Section 11 of R.A. No. 9189 provides:

SEC. 11.  Procedure for Application to Vote in Absentia. –

11.1.             Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission.  The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) days from receipt thereof.  The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration.

11.2.             Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections.

11.3.             Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter.

Contrary to 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 Tañada 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.

Section 18.5 of the same Act provides:

SEC. 18.  On-Site Counting and Canvassing. –

. . . . . .           . . .

18. 5             The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof.  Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission.  (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president, is unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:

SEC. 4 . . .

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate.  Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

. . .

which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president.

The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President.^[31][41]

Respondent COMELEC has no comment on the matter.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president.

In addition, the Court notes that Section 18.4 of the law, to wit:

18.4.  . . .  Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission,  . . . [Emphasis supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution  which provides that the returns of every election for President and Vice-President shall be certified by the board of canvassers to Congress.

Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach “on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for the said positions.”  The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the hands of Congress.

C.            Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?

Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.  (Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the legislators.

It is only on this question that respondent COMELEC submitted its Comment.  It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional.  Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC.  It asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.^[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-à-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-à-vis the independence of the COMELEC, as a constitutional body.

R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission.  (Emphasis supplied)

SEC. 19.  Authority of the Commission to Promulgate Rules. – The Commission shall issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days from the effectivity of this Act.  The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval.

. . . . . .           . . .  (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative body.  There is no question that the authority of Congress to “monitor and evaluate the implementation” of R.A. No. 9189 is geared towards possible amendments or revision of the law itself and thus, may be performed in aid of its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to “review, revise, amend and approve the Implementing Rules and Regulations” (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined by COMELEC.

The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions.  One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be “independent.”

Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that “[w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government.”^[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.

^{III.  PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP}

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents.  Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States.  However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent “effectively renounced his U.S. citizenship under American law,” so that now he is solely a Philippine national.

Petitioner challenges this ruling.  He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the United States, which provided that “A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:    . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory.”  To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk^[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 Osmeña 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 3^rd 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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