larrazabal,aquino cases: what is residence?

FIRST CASE

 LARRAZABAL(petitioner)  vs  COMELEC and DE LA CRUZ(respondents) G.R. No. 100739 September 3, 1991

ABELLA(petitioner) vs  COMELEC and LARRAZABAL(respondents) G.R. No. 100710 September 3, 1991

FACTS:

SPC Case No. 88-546 (Petition for disqualification of ADELINA Y. LARRAZABAL)    

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect.

xxx xxx xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

…the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte.”

ISSUE:

1)    Whether or not the COMELEC in reliance on the provisions of the Family Code was proper?

2)    Whether in the matter of determining the RESIDENCE is more on the principle of INTENTION, the ANIMUS REVERTENDI  rather than anything else?

 

3)    Whether or not petitioner is a registered voter in the said province?

 

RULING:

            The Court affirmed COMELEC’s ruling.

            In quoting some of its decision dated February 14, 1991:

“For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis supplied)”

“As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]):”

xxx xxx xxx

“... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.”

xxx xxx xxx

“... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297-300)”

 “As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence…. she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City.”

“…there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places.”

QUERY:

WHAT IS THAT PRINCIPLE, IN DETERMINING THE RESIDENCE OF A CANDIDATE FOR THE PURPOSE OF RUNNING FOR PUBLIC OFFICE?

ANS:

“The intention to return” under the principle of ANIMUS REVERTENDI is required for the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time.”

“The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.”

 _______________________________________________________________________________

SECOND CASE

AQUINO(petitioner) vs COMELEC, BEDON and ICARO(respondents)

G.R. No. 120265 September 18, 1995

FACTS:

On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative for the new Second Legislative District of Makati City

On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino  on the ground that the latter lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution, should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections.

After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution dated May 6, 1995, declaring Aquino ELIGIBLE to run for the Office of Representative in the Second Legislative District of Makati City.

On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC's Second Division resolution dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. Which was later lifted upon motion of petitioner on June 2, 1995 where “…the Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept the filing of the aforesaid motion, and to allow the parties to be heard thereon because the issue of jurisdiction now before the Commission has to be studied with more reflection and judiciousness.”

On the same day June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second Division dated May 6, 1995. The fallo reads as follows:

WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification of residence. Consequently, the order of suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made permanent.

Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconvene and, on the basis of the completed canvass of election returns, determine the winner out of the remaining qualified candidates, who shall be immediately be proclaimed.

SO ORDERED. ¹³

 

ISSUE:

Whether or not Agapito A. Aquino is ineligible and thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification of residence?

RULING:

                In ruling against petitioner the court agreed with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has established not just residence but domicile of choice.

“The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than one (l) year prior to the elections. ¹⁸ Residence, for election law purposes, has a settled meaning in our jurisdiction.”

“In Co v. Electoral Tribunal of the House of Representatives ¹⁹ this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. The Court there held:

            The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile,… The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile.”

“Clearly, the place "where a party actually or constructively has his permanent home," ²¹ where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera at ²² is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his election or whether or not he was domiciled in the same.”

“Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove 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. ³⁰ These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change ofdomicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin be deemed to continue requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin should be deemed to continue.”

 

QUESTION:

WHAT IS THE RATIONALE OF RESIDENCE IN RELATION TO A CANDIDATE, FOR ELECTION PURPOSES?

In the case supra “…the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera at ²² is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice.”

MAGNO vs COMELEC and MONTES G.R. No. 147904 October 4, 2002

MAGNO vs COMELEC and MONTES G.R. No. 147904             October 4, 2002

FACTS:

                This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija.

On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections citing Section 12 of the BP 881 or the Omnibus Election Code which provides as follows:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.

On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001.

Hence this petition.

Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections.

ISSUES:

                Whether or not petitioner was disqualified to run for mayor in the 2001 elections?

                In resolving this, two sub-issues need to be threshed out, namely:

(1)    whether the crime of direct bribery involves moral turpitude;

(2)    whether it is the Omnibus Election Code or the Local Government Code that should apply in this situation?

RULING:

               

ON THE FIRST SUB-ISSUE:

“In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery:

1. the offender is a public officer;

2. the offender accepts an offer or promise or receives a gift or present by himself or through another;

3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and [Italics supplied]

4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.^3”

“Moral turpitude can be inferred from the third element... That the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general... It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude.”

ON THE SECOND SUB-ISSUE:

                “It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.⁴ Legis posteriores priores contrarias abrogant…the legislature is presumed to have knowledge of the older law and intended to change it.”

“In David vs. COMELEC⁵, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail.”

“Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioner’s disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.”

“WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set aside.”

Query:

WHY CAN A  PERSON CONVICTED OF A CRIME  INVOLVING MORAL TURPITUDE, WHO APPLIED FOR PROBATION, BE QUALIFIED TO RUN FOR AN ELECTION?

ANSWER:

                In the case supra, a convicted person involving moral turpitude can be eligible to run for election purposes, provided he has served his sentence under the following provisions:

1)      Section 12 of the BP 881 or the Omnibus Election Code which provides:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.

Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers.

2)      Section 40 of RA 7160, otherwise known as the Local Government Code of 1991:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a)     Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

Section 40 specifially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only.

PEREZ vs COMELEC and AGUINALDO G.R. No. 133944. October 28, 1999

PEREZ vs COMELEC and AGUINALDO      G.R. No. 133944.  October 28, 1999

FACTS:

                On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the Third District of Cagayan in the May 11, 1998 elections.  Four days later, on March 30, 1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification of private respondent as a candidate on the ground that he had not been a resident of the district for at least one (1) year immediately before the day of the elections as required by Art. VI, §6 of the Constitution.

On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution,^[11] dismissed the petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of Cagayan.

ISSUE:

                Whether the Court has jurisdiction to entertain the instant petition for certiorari and eventually pass upon private respondent’s eligibility for the office of Representative of the Third District of Cagayan?

RULING:

     …the following provision of R.A. No. 6646:

Sec. 6  Effect of Disqualification Case. ¾ 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 (COMELEC) 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.

“As already stated, the petition for disqualification against private respondent was decided by the First Division of the COMELEC on May 10, 1998.  The following day, May 11, 1998, the elections were held.  Notwithstanding the fact that private respondent had already been proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on June 11, 1998.  Clearly, this could not be done.  Sec. 6 of R.A. No. 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed.  The COMELEC en banc had no jurisdiction to entertain the motion because the proclamation of private respondent barred further consideration of petitioner’s action.  In the same vein, considering that at the time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of Representatives, this Court has no jurisdiction over the same.  Pursuant to Art. VI, §17 of the Constitution, the House of Representatives Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of private respondent’s ineligibility.  As this Court held in Lazatin v. House of Representatives Electoral Tribunal:^[14]”

WHEREFORE, the petition is DISMISSED.

When does section 6 of R.A. 6646 apply to petitions for disqualifying a candidate and when does it not apply?

In the case supra, R.A 6646, section 6 cannot be applied since there was already a decision made by COMELEC based on substantial evidence, dismissing the petition for disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of Cagayan. Accordingly he was proclaimed elected and, on May 17, 1998, he was sworn in office. It therefore barred further consideration of petitioner’s action.

“Petitioner’s remedies should have been:

1)      to reiterate her prayer in the petition for disqualification, and move for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the hearing of the said petition and, in the event the motion was denied before the proclamation of private respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the proclamation of private respondent;

2)      to file a petition for quo warranto in the House of Representatives Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on May 16, 1998.”

“In the case of Lonzanida where this court held that the clear 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.  The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed.”

“…In Aguam v. COMELEC 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 xxx 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.”