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G.R. No.

118702 March 16, 1995 Section 1 of the law spelled out the municipalities comprising the sub-province, viz.: "Almeria,
Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories
CIRILO ROY G. MONTEJO, petitioner, comprised therein."
vs.
COMMISSION ON ELECTIONS, respondent. On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the
sub-province of Biliran became a regular province. It provides:
SERGIO A.F. APOSTOL, intervenor.
Existing sub-provinces are hereby converted into regular
provinces upon approval by a majority of the votes cast in a
plebiscite to be held in the sub-provinces and the original
PUNO, J.: provinces directly affected. The plebiscite shall be conducted
by the COMELEC simultaneously with the national elections
following the effectivity of this code. The new legislative
More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. districts created as a result of such conversion shall continue
Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of to be represented in Congress by the duly-elected
Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the representatives of the original districts out of which said new
ground that it violates the principle of equality of representation. To remedy the alleged provinces or districts were created until their own
inequity, petitioner seeks to transfer the municipality of Tolosa from his district to the Second representatives shall have been elected in the next regular
District of the province. Intervenor Sergio A.F. Apostol, representing the Second District, congressional elections and qualified.
vigorously opposed the inclusion of Tolosa in his district. We gave due course to the petition
considering that, at bottom, it involves the validity of the unprecedented exercise by the
COMELEC of the legislative power of redistricting and reapportionment. The conversion of Biliran into a regular province was approved by a majority of the votes cast
in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8)
municipalities of the Third District composed the new province of Biliran, i.e., Almeria, Biliran,
The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further consequence was to
legislative districts.1 reduce the Third District to five (5) municipalities with a total population of 145,067 as per the
1990 census.
The first district2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo,
San Miguel, Sta. Fe, Tanauan and Tolosa. To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities
in the province of Leyte, respondent COMELEC held consultation meetings with the
The second district3 is composed of the municipalities of Barugo, Barauen, Capoocan, incumbent representatives of the province and other interested parties. On December 29,
Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, 1994, it promulgated Resolution No. 2736 where, among others, it transferred the
and Tunga. municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of Leyte. The composition of the First District which
The third district4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran, includes the municipality of Tolosa and the composition of the Fifth District were not
Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba. disturbed. After the movement of municipalities, the composition of the five (5) legislative
districts appeared as follows:
The fourth district5 is composed of Ormoc City and the municipalities of Albuera, Isabel,
Kananga, Matagob, Merida, and Palompon. First District: Population Registered
Voters
The fifth district6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, (1990) (1994)
Hindang, Inopacan, Javier, Mahaplag, and Matalom.
1. Tacloban City, 137,190 81,679
Biliran, located in the third district of Leyte , was made its sub-province by virtue of Republic 2. Alangalang, 33,375 20,543
Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959.7 3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167 1. Ormoc City, 129,456 75,140
6. Sta. Fe, 12,119 7,497 2. Albuera, 32,395 17,493
7. Tanauan and, 38,033 22,357 3. Isabel, 33,389 21,889
8. Tolosa; 13,299 7,700 4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
TOTAL 303,349 178,688 6. Merida, and 22,345 12,474

Second District: Population Registered TOTAL 269,347 155,995
Voters
(1990) (1994) Fifth District: Population Registered
Voters
1. Barugo, 23,817 13,237 (1990) (1994)
2. Barauen, 46,029 23,307
3. Carigara 38,863 22,036 1. Abuyog, 47,265 28,682
4. Dagami, 25,606 16,519 2. Bato, 28,197 116,13
5. Dulag, 33,020 19,375 3. Baybay, 82,281 47,923
6. Jaro, 31,727 17,139 4. Hilongos, 48,617 26,871
7. Julita, 9,944 6,196 5. Hindang, 16,272 9,659
8. La Paz, 14,311 9,003 6. Inopacan, 16,894 10,401
9. Mayorga, 10,530 5,868 7. Javier, 18,658 11,713
10. Mac Arthur, 13,159 8,628 8. Mahaplag, and 22,673 13,616
11. Pastrana, 12,565 7,348 9. Matalom 28,291 16,247
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387 TOTAL 309,148 181,242

TOTAL 272,167 156,462 Petitioner Montejo filed a motion for reconsideration calling the attention of respondent
COMELEC, among others, to the inequitable distribution of inhabitants and voters between
Third District: Population Registered the First and Second Districts. He alleged that the First District has 178,688 registered voters
Voters while the Second District has 156,462 registered voters or a difference of 22,226 registered
(1990) (1994) voters. To diminish the difference, he proposed that the municipality of Tolosa with 7,7000
registered voters be transferred from the First to the Second District. The motion was
1. Calubian, 25,968 16,649 opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied the motion
2. Leyte, 32,575 16,415 ruling that: (1) its adjustment of municipalities involved the least disruption of the territorial
3. San Isidro, 24,442 14,916 composition of each district; and (2) said adjustment complied with the constitutional
4. Tabango, 29,743 15,48 requirement that each legislative district shall comprise, as far as practicable, contiguous,
5. Villaba, 32,339 21,227 compact and adjacent territory.
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474 In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of
equality of representation ordained in the Constitution. Citing Wesberry v. Sanders,8 he
TOTAL 214,499 125,763 argues that respondent COMELEC violated "the constitutional precept that as much as
practicable one man's vote in a congressional election is to be worth as much as another's."
Fourth District: Population Registered The Solicitor General, in his Comment, concurred with the views of the petitioner. The
Voters intervenor, however, opposed the petition on two (2) grounds: (1) COMELEC has no
(1990) (1994) jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has jurisdiction, said
Resolution is in accord with the Constitution. Respondent COMELEC filed its own Comment
alleging that it acted within the parameters of the Constitution.
We find section 1 of Resolution No. 2736 void. congressional elections under the 1987 Constitution. Among the vital issues were: whether
the members of the House of Representatives would be elected by district or by
While the petition at bench presents a significant issue, our first inquiry will relate to the province; who shall undertake the apportionment of the legislative districts; and, how the
constitutional power of the respondent COMELEC9 to transfer municipalities from one apportionment should be made.14Commissioner Davide, Jr. offered three (3) options for the
legislative district to another legislative district in the province of Leyte. The basic powers of Commission to consider: (1) allow President Aquino to do the apportionment by law; (2)
respondent COMELEC, as enforcer and administrator of our election laws, are spelled out in empower the COMELEC to make the apportionment; or (3) let the Commission exercise the
black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC power by way of an Ordinance appended to the Constitution. 15 The different dimensions of
does not invoke this provision but relies on the Ordinance appended to the 1987 Constitution the options were discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople.
as the source of its power of redistricting which is traditionally regarded as part of the power We quote the debates in extenso, viz.:16
to make laws. The Ordinance is entitled "Apportioning the Seats of the House of
Representatives of the Congress of the Philippines to the Different Legislative Districts in xxx xxx xxx
Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state:
MR. PADILLA. Mr. Presiding Officer.
Sec. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is
Constitution proposed by the 1986 Constitutional Commission and recognized.
subsequent elections, and until otherwise provided by law, the Members
thereof shall be elected from legislative districts apportioned among the MR. PADILLA. I think I have filed a very simple motion by way of amendment
provinces, cities, and the Metropolitan Manila Area as follows: by substitution and this was, I believe, a prior or a proposed amendment.
Also, the chairman of the Committee on the Legislative said that he was
xxx xxx xxx proposing a vote first by the Chamber on the concept of whether the election
is by province and cities on the one hand, or by legislative districts on the
Sec. 2. The Commission on Elections is hereby empowered to make minor other. So I propose this simple formulation which reads: "FOR THE FIRST
adjustments of the reapportionment herein made. ELECTION UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS
SHALL BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I
Sec. 3. Any province that may hereafter be created, or any city whose hope the chairman will accept the proposed amendment.
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member SUSPENSION OF SESSION
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in MR. DAVIDE. The effect is, more or less, the same insofar as the
paragraph (3), Section 5 of Article VI of the Constitution. The number of apportionment is concerned, but the Bernas-Sarmiento et al. proposal would
Members apportioned to the province out of which such new province was also provide for a mandate for the apportionment later, meaning after the first
created or where the city, whose population has so increased, is election, which will in effect embody what the Commission had approved,
geographically located shall be correspondingly adjusted by the Commission reading as follows: "Within three years following the return of every census,
on Elections but such adjustment shall not be made within one hundred and the Congress shall make a reapportionment of legislative districts based on
twenty days before the election. (Emphasis supplied) the standards provided in this section."

The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. So, Mr. Presiding Officer, may I request for a suspension of the session, so
Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished that all the proponents can work together.
the Batasang Pambansa. 11 She then exercised legislative powers under the Provisional
Constitution.12
THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.

The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, It was 3:33 p.m.
Jr., 13 now a distinguished member of this Court. The records reveal that the Constitutional
Commission had to resolve several prejudicial issues before authorizing the first
RESUMPTION OF SESSION MR. OPLE. Mr. Presiding Officer.

At 3:40 p.m., the session was resumed. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized.

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed. MR. OPLE. I would like to support the position taken by Commissioner
Aquino in this respect. We know that the reapportionment of provinces and
Commissioner Davide is recognized. cities for the purpose of redistricting is generally inherent in the constituent
power or in the legislative power. And I would feel very uncertain about
delegating this to a quasi-judicial body even if it is one of the constitutional
MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the
offices created under this Constitution. We have the assurance of
Commission will allow this. We will just delete the proposed subparagraph (4)
Commissioner Davide, as chairman of the Committee on the Legislative, that
and all the capitalized words in paragraph (5). So that in paragraph (5), what
would be left would only be the following: "Within three years following the even given the very short time remaining in the life of this Commission, there
return of every census, the Congress shall make a reapportionment of is no reason why we cannot complete the work of reapportionment on the
basis of the COMELEC plan which the committee has already thoroughly
legislative districts based on the standards provided in this section."
studied and which remains available to the Constitutional Commission.
But we shall have an ordinance appended to the new Constitution indicating
specifically the following: "FOR PURPOSES OF THE ELECTION OF So, I support the position taken by Commissioner Aquino, Mr. Presiding
MEMBERS OF THE HOUSE OF REPRESENTATIVES IN THE FIRST Officer. I think, it is the safest, the most reasonable, and the most workable
approach that is available to this Commission.
CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986
CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide
UNTIL OTHERWISE PROVIDED BY LAW, THE MEMBERS OF THE say:
HOUSE OF REPRESENTATIVES SHALL BE ELECTED FROM
LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, MR. DAVIDE. The issue now is whether this body will make the
CITIES AND THE METROPOLITAN MANILA AREA AS FOLLOWS." apportionment itself or whether we will leave it to the COMELEC. So, there
arises, therefore, a prejudicial question for the body to decide. I would
And what will follow will be the allocation of seats to Metropolitan Manila propose that the Commission should now decide what body should make the
Area, to the provinces and to the cities, without indicating the municipalities apportionment. Should it be the Commission or should it be the COMELEC?
comprising each of the districts. Then, under Section 2, we will mandate the And the Committee on the Legislative will act accordingly on the basis of the
COMELEC to make the actual apportionment on the basis of the number of decision.
seats provided for and allocated to each province by us.
MR. BENGZON. Mr. Presiding Officer.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.
recognized.
MR. BENGZON. Apropos of that, I would like to inform the body that I believe
MS. AQUINO. I have to object to the provision which will give mandate to the Committee on the Legislative has precisely worked on this matter and
COMELEC to do the redistricting. Redistricting is vitally linked to the baneful they are ready with a list of apportionment. They have, in fact, apportioned
practices of cutting up areas or spheres of influence; in other words, the whole country into various districts based on the recommendation of the
gerrymandering. This Commission, being a nonpartisan, a nonpolitical COMELEC. So they are ready with the list and if this body would wish to
deliberative body, is in the best possible situation under the circumstances to apportion the whole country by district itself, then I believe we have the time
undertake that responsibility. We are not wanting in expertise and in time to do it because the Committee on the Legislative is ready with that particular
because in the first place, the Committee on the Legislative has prepared the report which need only to be appended to the Constitution. So if this body is
report on the basis of the recommendation of the COMELEC. ready to accept the work of the Committee on the Legislative we would have
no problem. I just would like to give that information so that the people here MR. REGALADO. On the basis of the Commissioner's proposed
would be guided accordingly when they vote. apportionment and considering the fact that there will be a corresponding
reduction to 183 seats, would there be instances representation of under
MR. RODRIGO. Mr. Presiding Officer. non-representation?

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the
recognized. Commission that there will be no case of inequitable distribution. It will come
out to be one for every 350 to 400,000 inhabitants.
MR. RODRIGO. I just would like to ask Commissioner Davide some
questions. MR. REGALADO. And that would be within the standard that we refer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if MR. DAVIDE. Yes, Mr. Presiding Officer.
he so desires.
MR. REGALADO. Thank you.
MR. DAVIDE. Gladly.
MR. RAMA. Mr. Presiding Officer.
MR. RODRIGO. Will this apportionment which we are considering apply only
to the first election after the enactment of the Constitution? THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized.

MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first MR. RAMA. The parliamentary situation is that there was a motion by
election; on the basis of the Sarmiento proposal, it will only apply to the first Commissioner Sarmiento to mandate COMELEC to do the redistricting. This
election. was also almost the same motion by Commissioner Padilla and I think we
have had some kind of meeting of minds. On the other hand, there seems to
MR. RODRIGO. And after that, Congress will have the power to reapportion. be a prejudicial question, an amendment to the amendment as suggested by
Commissioner Aquino, that instead of the COMELEC, it should be this
MR. DAVIDE. Yes. Commission that shall make the redistricting. So may I ask Commissioner
Aquino, if she insists on that idea, to please formulate it into a motion so we
can vote on that first as an amendment to the amendment.
MR. RODRIGO. So, if we attach this to the Constitution the
reapportionment based on the COMELEC study and between the approval of
the Constitution and the first election the COMELEC no longer has the THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.
power to change that even a bit.
MS . AQUINO. The motion is for this Commission to undertake the
apportionment of the legislative districts instead of the proposal that
xxx xxx xxx
COMELEC be given the mandate to undertake the responsibility.
THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is
xxx xxx xxx
recognized.

MR. REGALADO. May I address a clarificatory question to Commissioner MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or
Davide? the proposed amendment?

THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.


THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.

MR. SARMIENTO. May we move for the approval of this proposed


amendment which we substitute for paragraphs 4 and 5.
MR. DAVIDE. May I request that it should be treated merely as a motion to MS. AQUINO. So, the Gentlemen has accepted the amendment the
be followed by a deletion of paragraph 4 because that should not really amendment.
appear as a paragraph in Section 5; otherwise, it will appear very ugly in the
Constitution where we mandate a Commission that will become functus Thank you.
officio to have the authority. As a matter of fact, we cannot exercise that
authority until after the ratification of the new Constitution.
MR. SARMIENTO. I am voting that this Commission do the reapportionment.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner VOTING


Sarmiento say?
THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.
MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for
the approval of this proposed amendment.
As many as are in favor, please raise their hand. (Several Members raised
their hand.)
MS. AQUINO. Mr. Presiding Officer.
As many as are against, please raise their hand. (No Member raised his
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is hand.)
recognized.
The results show 30 votes in favor and none against; the motion is approved.
MS. AQUINO. Would that require a two-thirds vote or a simple plurality to
adopt that motion?
Clearly then, the Constitutional Commission denied to the COMELEC the major power of
legislative apportionment as it itself exercised the power. Section 2 of the Ordinance only
THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote. empowered the COMELEC "to make minoradjustments of the reapportionment herein made."
The meaning of the phrase "minor adjustments was again clarified in the debates 17 of the
MS. AQUINO. Thank you. Mr. Presiding Officer. Commission, viz.:

MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer. xxx xxx xxx

THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed. MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2,
the Commission on Elections is empowered to make minor adjustments on
MR. SARMIENTO. May I move that this Commission do the reapportionment the apportionment made here.
legislative districts.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MS. AQUINO. Mr. Presiding Officer.
MR. GUINGONA. We have not set any time limit for this.
THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of
Commissioner Aquino? MR. DAVIDE. We should not set a time limit unless during the period of
amendments a proposal is made. The authority conferred would be on minor
MS. AQUINO. May I be clarified again on the motion. Is Commissioner corrections or amendments, meaning to say, for instance, that we may have
Sarmiento, therefore, adopting my motion? Would it not be right for him to forgotten an intervening municipality in the enumeration, which ought to be
move that the COMELEC be mandated? included in one district. That we shall consider a minor amendment.

MR. SARMIENTO. No, we accepted the amendment. It is already the MR. GUINGONA. Thank you.
Commission that will be mandated.
xxx xxx xxx Prescinding from these premises, we hold that respondent COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction when it promulgated section 1 of its
THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is Resolution No. 2736 transferring the municipality of Capoocan of the Second District and the
recognized. municipality of Palompon of the Fourth District to the Third District of Leyte.

MR. DE CASTRO. Thank you. It may well be that the conversion of Biliran from a sub-province to a regular province brought
about an imbalance in the distribution of voters and inhabitants in the five (5) legislative
I was about to ask the committee the meaning of minor adjustment. Can it be districts of the province of Leyte. This imbalance, depending on its degree, could devalue a
possible that one municipality in a district be transferred to another district citizen's vote in violation of the equal protection clause of the Constitution. Be that as it may,
and call it a minor adjustment? it is not proper at this time for petitioner to raise this issue using the case at bench as his
legal vehicle. The issue involves a problem of reapportionment of legislative districts and
petitioner's remedy lies with Congress. Section 5(4), Article VI of the Constitution
MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, categorically gives Congress the power to reapportion, thus: "Within three (3) years following
that there should be no change in the allocations per district. However, it may the return of every census, the Congress shall make a reapportionment of legislative districts
happen that we have forgotten a municipality in between which is still in the based on the standards provided in this section." In Macias v. COMELEC, 18 we ruled that the
territory of one assigned district, or there may be an error in the correct name validity of a legislative apportionment is a justiciable question. But while this Court can strike
of a particular municipality because of changes made by the interim down an unconstitutional reapportionment, it cannot itself make the reapportionment as
Batasang Pambansa and the Regular Batasang Pambansa. There were petitioner would want us to do by directing respondent COMELEC to transfer the municipality
many batas pambansa enacted by both the interim and the Regular of Tolosa from the First District to the Second District of the province of Leyte.
Batasang Pambansa changing the names of municipalities.
IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the
MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipality of Capoocan of the Second District and the municipality of Palompon of the
municipalities is not mentioned in the ordinance appended to, and it will be Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also
up for the COMELEC now to adjust or to put such municipality to a certain deny the Petition praying for the transfer of the municipality of Tolosa from the First District to
district. the Second District of the province of Leyte. No costs.

MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the SO ORDERED.
data regarding a division of a municipality by the interim Batasang Pambansa
or the Regular Batasang Pambansa into two municipalities, meaning, a
mother municipality and the new municipality, but still actually these are
within the geographical district area.

MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do


is that, if, for example, my municipality is in the First District of Laguna, they
cannot put that in any other district.

MR. DAVIDE. That is not even a minor correction. It is a substantive one.

MR. DE CASTRO. Thank you.

Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance
did not also give the respondent COMELEC any authority to transfer municipalities from one
legislative district to another district. The power granted by Section 3 to the respondent
COMELEC is to adjust the number of members (not municipalities) "apportioned to the
province out of which such new province was created. . . ."
G.R. No. 124521 January 29, 1998 After comparing the fifty-seven (57) election returns, Municipal Trial Court
copy (Judge copy) with the Comelec copy as to the number of votes obtained
MICHAEL O. MASTURA, petitioner, by candidates Didagen P. Dilangalen and Michael O. Mastura, both in words
vs. and figures and the taras . . . the Second Division, finding that no
COMMISSION ON ELECTIONS (Second Division), THE NEW MUNICIPAL BOARD OF inconsistencies exist between the two (2) copies of the election returns, and
CANVASSERS OF MATANOG, MAGUINDANAO, THE NEW PROVINCIAL BOARD OF finding further that the Statement of Votes submitted by the Municipal Board
CANVASSERS OF MAGUINDANAO and DIDAGEN P. DILANGALEN, respondents. of Canvassers of Matanog, Maguindanao is not reflective of the true votes
obtained in the election returns per verification, hereby annuls the canvass
made by the Municipal Board of Canvassers of Matanog, Maguindanao.

BELLOSILLO, J.: WHEREFORE, the canvass conducted by the Municipal Board of


Canvassers for the position of Member, House of Representatives (First
District) is hereby ANNULLED and SET ASIDE.
This Petition for Certiorari, Prohibition and Mandamus with prayer for preliminary injunction
and/or restraining order seeks to reverse, annul or set aside: (a) the 29 February 1996 Order
A new Municipal Board of Canvassers for the Municipality of Matanog,
of public respondent Commission on Elections (COMELEC) which annulled and set aside the
Maguindanao is hereby constituted . . . to conduct a new recanvassing at the
canvass made by the original Municipal Board of Canvassers of Matanog, Maguindanao,
Comelec Session Hall at Intramuros, Manila, prepare a new Certificate of
created a new set of municipal and provincial boards of canvassers and directing them to
recanvass the votes using the COMELEC copy of the election returns and to proclaim the Canvass using the Comelec copy of the election returns and, thereafter, to
duly elected Member of the House of Representatives, First District of Maguindanao; (b) the immediately submit the new Certificate of Canvass to the new Provincial
Board of Canvassers as herein constituted . . . . 1
5 March 1996 Order of the COMELEC Second Division which merely noted the Urgent
Motion to Examine and Verify the Canvassed MBC Copies of Election Returns, COMELEC
Copy of the Certificate of Canvass and the accompanying Statement of Votes; (c) the 14 The following day, Mastura filed an Urgent Motion to Examine and Verify the Canvassed
March 1996 Order denying the Urgent Motion to Defer Implementation of the 29 February MBC Copies of the Election Returns and the COMELEC Copy of the Certificate of Canvass
1996 Order; and, (d) the 20 March 1996 order denying Masturas Motion for Reconsideration and Accompanying Statement of Votes. The COMELEC Second Division merely noted the
of the 29 February 1996 Order. motion in view of the 29 February 1996 Order.2

Petitioner Michael O. Mastura and private respondent Didagen P. Dilangalen were Thereafter Mastura filed an Urgent Motion to Defer Implementation of the 29 February 1996
congressional candidates for the first district of Maguindanao during the 8 May 1995 Order. Mastura argued that the 29 February 1996 Order was issued precipitately and
elections. In the canvassing of votes, Dilangalen objected to the inclusion of the Certificate of prematurely considering that some other documents, particularly the Certificate of Canvass of
Canvass of the Municipality of Matanog on the ground that the same was allegedly tampered. Matanog which he considered necessary for the resolution of the issue, was yet to be
Acting on the objection, the COMELEC Second Division ordered the production and produced and examined. The COMELEC Second Division denied the motion
examination of the election returns of the Municipality of Matanog. In the course of the
examination four (4) ballot boxes were produced and opened. Ballot Box No. 1 contained the . . . (I)t appearing that when the Commission opened the election returns for
MTC Judge copy of the election returns, Ballot Box No. 2 the Provincial Board of Canvassers Matanog, Maguindanao, particularly the Judge copy and the Comelec copy
copy of the election returns, Ballot Box No. 3 the COMELEC copy of the election returns, and and made comparison thereof to ascertain the actual votes of candidates
Ballot Box No. 4 the Provincial Board of Canvassers copy of the municipal Certificate of Didagen P. Dilangalen and Michael O. Mastura per precinct which consists of
Canvass of Matanog with its supporting Statement of Votes. fifty-seven (57) precincts, in compliance with the Supreme Court resolution,
the results thereof, fully convinced the Commission of the manifest
Upon examination and comparison of the copies of the election returns of the MTC Judge irregularity committed in the Statement of Votes by precincts. Thus, it annuls
and the COMELEC, the COMELEC Second Division found that, indeed, the Certificate of the canvass made by the Municipal Board of Canvassers of Matanog,
Canvass of the Municipality of Matanog had been tampered with. Consequently, the Maguindanao.
COMELEC Second Division issued the herein assailed Order of 29 February 1996 annulling
the Certificate of Canvass of Matanog thus Clearly, on the basis of the results of the primary documents, there is no
need for the examination and opening of other documents mentioned in the
motion of private respondent. Besides, the opening of other documents will
entail more delay in the proclamations of the rightful winner for the position of created and explicitly made independent by the Constitution itself on a level higher than
Member, House of Representatives, First District of Maguindanao.3 statutory administrative organs. The COMELEC has broad powers to ascertain the true
results of the election by means available to it. For the attainment of that end, it is not strictly
Meanwhile, the new Municipal Board of Canvassers convened and recanvassed the votes. bound by the rules of evidence. 5
During the proceedings Mastura objected to the inclusion of fifty (50) out of the fifty-seven
(57) elections returns on the ground that the COMELEC copy of the election returns was not Pursuant to its administrative functions, the COMELEC exercises direct supervision and
reflective of the true results unless compared with the copy of the original Municipal Board of control over the proceedings before the Board of Canvassers. In Aratuc v. Commission on
Canvassers. But the new Municipal Board of Canvassers believed otherwise; hence, it Elections 6 we held
included in the canvass the fifty (50) election returns objected to by Mastura who thereafter
walked out while the new Municipal Board of Canvassers continued with the canvassing. While nominally, the procedure of bringing to the Commission objections to
the actuations of boards of canvassers has been quite loosely referred to in
After the proceedings in the Municipal Board of Canvassers, the Provincial Board of certain quarters, even by the Commission and by this Court . . . as an
Canvassers convened and prepared the Certificate of Canvass and Statement of Votes of the appeal, the fact of the matter is that the authority of the Commission in
Municipality of Matanog. As a result, private respondent Dilangalen was proclaimed the duly reviewing such actuations does not spring from any appellant jurisdiction
elected member of the House of Representatives, First District of Maguindanao. conferred by any specific provision of law, for there is none such provision
anywhere in the Election Code, but from the plenary prerogative of direct
Mastura now comes to us imputing to public respondent COMELEC Second Division grave control and supervision endowed to it by the above-quoted provisions of
abuse of discretion amounting to lack of jurisdiction in issuing its Orders of 29 February 1996, Section 168. And in administrative law, it is a too well settled postulate to
5 March 1996, 14 March 1996, and 20 March 1996. need any supporting citation here, that a superior body or office having
supervision and control over another may do directly what the latter is
supposed to do or ought to have done . . . .
We find no grave abuse of discretion on the part of respondent COMELEC. It is settled
jurisprudence that COMELEC can suspend the canvass of votes pending its inquiry whether
there exists a discrepancy between the various copies of election returns from the disputed Also in Lucman v. Dimaporo7 we ruled
voting centers. Corollarily, once the election returns were found to be falsified or tampered
with, the COMELEC can annul the illegal canvass and order the Board of Canvassers to The function of a canvassing board in the canvass of the returns is
reconvene and proclaim the winners on the basis of the genuine returns or, if it should refuse, purely ministerial in nature. Equally ministerial, therefore, is the
replace the members of the board or proclaim the winners itself.4 function of the Commission on Elections, in the exercise of its
supervisory power over said Board, pursuant to our Constitution and
This was exactly what happened in the in the instant petition. Dilangalen objected to the laws. So long as the election returns have been accomplished in due
inclusion of the Certificate of Canvass of the Municipality of Matanog and, acting on the form, the Board, and on appeal therefrom, the Commission on
objection, COMELEC ordered the production and examination of the MTC Judge copy and Elections must include said returns in the canvass.
the COMELEC copy of the election returns. Based on the comparison, the COMELEC
Second Division found and concluded that indeed the Certificate of Canvass of the In Abes v. Commission on Elections8 we emphasized
Municipality of Matanog was tampered with. Consequently, it ordered its annulment and
created a new set of Municipal and Provincial Boards of Canvassers to recanvass the votes. . . . (T)he board of canvassers is a ministerial body. It is enjoined by law
After the recanvassing, Dilangalen emerged as the winner and was thereafter proclaimed the to canvass all votes on election returns submitted to it in due form. It
duly elected member of the House of Representatives, First District of Maguindanao. has been said, and properly, that its powers are limited generally to the
mechanical or mathematical function of ascertaining and declaring the
That the Certificate of Canvass of the Municipality of Matanog was tampered with is a factual apparent result of the election by adding or compiling the votes cast for
finding of the COMELEC. Absent any showing of abuse of discretion amounting to lack of each candidate as shown on the face of the returns before them, and
jurisdiction, this Court should refrain from reviewing the same, and must accord it instead the then declaring or certifying the result so ascertained. Comelec is the
respect it deserves. The rule that factual findings of administrative bodies will not be constitutional body charged with the duty to enforce all laws relative to
disturbed by courts of justice except when there is absolutely no evidence or no substantial elections, duty bound to see to it that the board of canvassers perform
evidence in support of such findings should be applied with greater force when it concerns its proper function.
the COMELEC, as the framers of the Constitution intended to place the COMELEC
Pertinent rulings of this Court have since defined Comele's powers in officials. Upon completion of the canvass, it shall prepare the certificate
pursuance of its supervisory or administrative authority over officials of canvass for . . . Members of the House of Representatives . . . .
charged with specific duties under the election code. It is within the
legitimate concerns of Comelec to annul a canvass or proclamation Sec. 29. Number of Copies of Certificate of Canvass and their
based on incomplete returns, or on incorrect or tampered returns; Distribution. (a) The certificate of canvass for . . . Members of the
annul a canvass or proclamation made in an unauthorized meeting of House of Representatives . . . shall be prepared in seven (7) copies by
the board of canvassers either because it lacked a quorum or because the city or municipal board of canvassers and distributed as follows: 1)
the board did not meet at all. Neither Constitution nor statute has The first copy shall be delivered to the provincial board of canvassers .
granted Comelec or board of canvassers the power, in the canvass of . . ; 2) The second copy shall be sent to the Commission; 3) The third
election returns, to look beyond the face thereof, once satisfied of their copy shall be kept by the chairman of the board; 4) The fourth copy
authenticity. shall be given to the citizens arm designated by the Commission to
conduct a media-based unofficial count; and, 5) The fifth, sixth and
The assailed Orders having been issued pursuant to COMELEC's administrative seventh copies shall be given to the representatives of any three (3) of
powers and in the absence of any finding of grave abuse of discretion, judicial the six (6) major political parties in accordance with the voluntary
interference is therefore unnecessary and uncalled for. Consequently, the questioned agreement of the parties . . . .
Orders must perforce be upheld.
In the instant petition, petitioner Mastura argues that the COMELEC Second Division
Additionally, Secs. 27, 28 and 29 of R.A. No. 7166 9 provide should have made use of the Municipal Board of Canvassers copy of the election
returns for the simple reason that it is the original copy. This is a misconception. All
Sec. 27. Number of Copies of Election Returns and Their Distribution. the seven (7) copies of the election returns are all original copies, although the copy
The board of election inspectors shall prepare in handwriting the for the Municipal Board of Canvassers is designated as the first copy. This designation
election returns in their respective polling places, in the number of is only for the purpose of distribution and does not in any way accord said copy the
copies herein provided and in the form to be prescribed and provided status of being the onlyoriginal copy. Consequently, it was properly within the
by the Commission. exercise of its discretion when COMELEC ordered the production and examination of
the MTC Judge copy and the COMELEC copy of the election returns. COMELEC is not
required to retrieve and examine all the seven (7) copies of the election returns.
The copies of the election returns shall be distributed as follows: (a) In
the election of . . . members of the House of Representatives: 1) The
first copy shall be delivered to the city or municipal board of Additionally, Sec. 15 of R.A. No. 7166 does not in any way specify that the COMELEC
canvassers; 2) The second copy, to the Congress, directed to the should use the Municipal Board of Canvassers copy in correcting manifest error.
President of the Senate; 3) The third copy, to the Commission; 4) The COMELEC is in fact given enough leeway in this regard
fourth copy, to the provincial board of canvassers; 5) The fifth copy, to .
. . the city or municipal treasurer; 6) The sixth copy shall be given to the Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President,
city or municipal trial court judge or in his absence to any official who Vice-President, Senator and Member of the House of Representatives.
may be designated by the Commission. The city or municipal trial court For purposes of the elections for President, Vice-President, Senator
judge or the official designated by the Commission shall keep his and Member of the House of Representatives, no pre-proclamation
copies of the election returns sealed and unopened. Said copy may be cases shall be allowed on matters relating to the preparation,
opened only during the canvass upon order of the board of canvassers transmission, receipt, custody and appreciation of the election returns
for purposes of comparison with other copies of the returns whose or the certificate of canvass, as the case may be. However, this does
authenticity is in question; and, 7) The seventh copy shall be deposited not preclude the authority of the appropriate canvassing body motu
inside the compartment of the ballot box for valid ballots . . . . proprioor upon written complaint of an interested person to correct
manifest errors in the certificate of canvass or election returns before it
Sec. 28. Canvassing by Provincial, City, District and Municipal Boards ....
of Canvassers. (a) The city or municipal board of canvassers shall
canvass the election returns for . . . members of the House of There is another reason for denying the instant petition. When petitioner's motion for
Representatives and/or elective provincial and city or municipal reconsideration of the 29 February 1996 Order was denied for being interlocutory in
nature, petitioner should have sought prior recourse from the COMELEC en G.R. No. 157013 July 10, 2003
banc before coming to this Court, pursuant to Sec. 3, Art. IX-C, of the Constitution.
ATTY. ROMULO B. MACALINTAL, petitioner,
WHEREFORE, finding no grave abuse of discretion committed by public respondent vs.
COMMISSION ON ELECTIONS Second Divisions, the instant petition is DISMISSED. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as
The assailed Orders of 29 February 1996, 5 March 1996, 14 March 1996 and 20 March Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of
1996 of the COMELEC Second Division are AFFIRMED. Budget and Management, respondents.

SO ORDERED. AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a
member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act
No. 9189 (The Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity.
Claiming that he has actual and material legal interest in the subject matter of this case in
seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition.

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other
Purposes," appropriates funds under Section 29 thereof which provides that a supplemental
budget on the General Appropriations Act of the year of its enactment into law shall provide
for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner,
have the right to restrain officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail the validity of a law
appropriating public funds3 because expenditure of public funds by an officer of the State for
the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4

The challenged provision of law involves a public right that affects a great number of citizens.
The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner
has seriously and convincingly presented an issue of transcendental significance to the
Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held:

Objections to taxpayers suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of
the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.6

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of
suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the
prematurity as there are no ongoing proceedings in any tribunal, board or before a winning candidates for national offices and party list representatives including the
government official exercising judicial, quasi-judicial or ministerial functions as required by President and the Vice-President violate the constitutional mandate under Section 4,
Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues Article VII of the Constitution that the winning candidates for President and the Vice-
raised by the petitioner. In Taada vs. Angara,7 the Court held: President shall be proclaimed as winners by Congress?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes C. May Congress, through the Joint Congressional Oversight Committee created in
the Constitution, the petition no doubt raises a justiciable controversy. Where an Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
action of the legislative branch is seriously alleged to have infringed the Constitution, approve the Implementing Rules and Regulations that the Commission on Elections
it becomes not only the right but in fact the duty of the judiciary to settle the dispute. shall promulgate without violating the independence of the COMELEC under Section
"The question thus posed is judicial rather than political. The duty (to adjudicate) 1, Article IX-A of the Constitution?
remains to assure that the supremacy of the Constitution is upheld." Once a
"controversy as to the application or interpretation of constitutional provision is raised The Court will resolve the questions in seriatim.
before this Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide."
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?
In another case of paramount impact to the Filipino people, it has been expressed that it is
illogical to await the adverse consequences of the law in order to consider the controversy Section 5(d) provides:
actual and ripe for judicial resolution.8 In yet another case, the Court said that:
Sec. 5. Disqualifications. The following shall be disqualified from voting under this
. . . despite the inhibitions pressing upon the Court when confronted with
Act:
constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only criterion will
be the Constitution and God as its conscience gives it in the light to probe its .........
meaning and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as d) An immigrant or a permanent resident who is recognized as such in the host
intimidation, for all the awesome power of the Congress and Executive, the Court will country, unless he/she executes, upon registration, an affidavit prepared for the
not hesitate "to make the hammer fall heavily," where the acts of these departments, purpose by the Commission declaring that he/she shall resume actual physical
or of any official, betray the peoples will as expressed in the Constitution . . . 9 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
The need to consider the constitutional issues raised before the Court is further buttressed by applied for citizenship in another country. Failure to return shall be cause for the
the fact that it is now more than fifteen years since the ratification of the 1987 Constitution removal of the name of the immigrant or permanent resident from the National
requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Registry of Absentee Voters and his/her permanent disqualification to vote in
Thus, strong reasons of public policy demand that the Court resolves the instant absentia.
petition10 and determine whether Congress has acted within the limits of the Constitution or if
it had gravely abused the discretion entrusted to it.11 Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines for at
The petitioner raises three principal questions: least one year and in the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of
Appeals12 to support his claim. In that case, the Court held that a "green card" holder
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrant to the United States is deemed to have abandoned his domicile and residence in
immigrants or permanent residents in other countries by their mere act of executing
the Philippines.
an affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?
Petitioner further argues that Section 1, Article V of the Constitution does not allow
provisional registration or a promise by a voter to perform a condition to be qualified to vote in
a political exercise;13 that the legislature should not be allowed to circumvent the requirement
of the Constitution on the right of suffrage by providing a condition thereon which in effect SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest
amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. 14He and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot.
claims that the right of suffrage should not be granted to anyone who, on the date of the Towards this end, the State ensures equal opportunity to all qualified citizens of the
election, does not possess the qualifications provided for by Section 1, Article V of the Philippines abroad in the exercise of this fundamental right.
Constitution.
SEC. 3. Definition of Terms. For purposes of this Act:
Respondent COMELEC refrained from commenting on this issue. 15
a) "Absentee Voting" refers to the process by which qualified citizens of the
In compliance with the Resolution of the Court, the Solicitor General filed his comment for all Philippines abroad, exercise their right to vote;
public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail
because of the absence of clear and unmistakable showing that said provision of law is . . . (Emphasis supplied)
repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government owes a becoming respect for f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is
the acts of the other two departments; all laws are presumed to have adhered to qualified to register and vote under this Act, not otherwise disqualified by
constitutional limitations; the legislature intended to enact a valid, sensible, and just law.
law, who is abroad on the day of elections. (Emphasis supplied)

In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he otherwise disqualified by law, at least eighteen (18) years of age on the day of
cites Co vs. Electoral Tribunal of the House of Representatives16 wherein the Court held that
elections, may vote for president, vice-president, senators and party-list
the term "residence" has been understood to be synonymous with "domicile" under both
representatives. (Emphasis supplied)
Constitutions. He further argues that a person can have only one "domicile" but he can have
two residences, one permanent (the domicile) and the other temporary; 17 and that the
definition and meaning given to the term residence likewise applies to absentee voters. in relation to Sections 1 and 2, Article V of the Constitution which read:
Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the Courts ruling in Faypon
vs. Quirino,19 the Solicitor General maintains that Filipinos who are immigrants or permanent SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
residents abroad may have in fact never abandoned their Philippine domicile. 20 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
Taking issue with the petitioners contention that "green card" holders are considered to have to vote for at least six months immediately preceding the election. No literacy,
abandoned their Philippine domicile, the Solicitor General suggests that the Court may have property, or other substantive requirement shall be imposed on the exercise of
to discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and suffrage.
permanent residents in foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity
the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the ballot as well as a system for absentee voting by qualified Filipinos
of the Republic had in fact given these immigrants and permanent residents the opportunity, abroad.
pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never
abandoned their Philippine domicile; that indubitably, they would have formally and . . . . . . . . . (Emphasis supplied)
categorically expressed the requisite intentions, i.e., "animus manendi" and "animus
revertendi;" that Filipino immigrants and permanent residents abroad possess the Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by
unquestionable right to exercise the right of suffrage under Section 1, Article V of the (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen
Constitution upon approval of their registration, conformably with R.A. No. 9189. 22 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
The seed of the present controversy is the interpretation that is given to the phrase, "qualified Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or
citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit: 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 R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2,
Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Article V of the Constitution that Congress shall provide a system for voting by qualified
Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a exercise of legislative authority in enacting said law. Hence, in the absence of restrictions,
system for absentee voting by qualified Filipinos abroad. Congress is presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.
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 To put matters in their right perspective, it is necessary to dwell first on the significance of
residents overseas are perceived as having left and abandoned the Philippines to live absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
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 The method of absentee voting has been said to be completely separable and
executing an affidavit expressing their intent to return to the Philippines within a given period, distinct from the regular system of voting, and to be a new and different manner of
risks a declaration of unconstitutionality. However, the risk is more apparent than real. 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
The Constitution is the fundamental and paramount law of the nation to which all other laws election is purely statutory; absentee voting was unknown to, and not recognized at,
must conform and in accordance with which all private rights must be determined and all the common law.
public authority administered.23 Laws that do not conform to the Constitution shall be stricken
down for being unconstitutional. 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
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the impracticable for them to attend their polling places on the day of election, and the
Court said: privilege of absentee voting may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions, which provide in varying terms
. . . An act of the legislature, approved by the executive, is presumed to be within for the casting and reception of ballots by soldiers and sailors or other qualified voters
constitutional limitations. The responsibility of upholding the Constitution rests not on absent on election day from the district or precinct of their residence.
the courts alone but on the legislature as well. The question of the validity of every
statute is first determined by the legislative department of the government itself. 24 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
Thus, presumption of constitutionality of a law must be overcome convincingly: 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
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution
affecting registration and elections, and with due regard to their texts prior to
must be clear and unequivocal, for even if a law is aimed at the attainment of some
amendment and to predecessor statutes and the decisions thereunder; they should
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, also be construed in the light of the circumstances under which they were
the statute allows it to be done.25 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
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves of the election laws, the intent of the entire plan, and reasons and spirit of their
the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)
No. 9189. It is a basic rule in constitutional construction that the Constitution should be
construed as a whole. In Chiongbian vs. De Leon,26 the Court held that a constitutional
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same
provision should function to the full extent of its substance and its terms, not by itself alone,
time, both a resident and an absentee.30 However, under our election laws and the countless
but in conjunction with all other provisions of that great document. Constitutional provisions
pronouncements of the Court pertaining to elections, an absentee remains attached to his
are mandatory in character unless, either by express statement or by necessary implication,
residence in the Philippines as residence is considered synonymous with domicile.
a different intention is manifest.27 The intent of the Constitution may be drawn primarily from
the language of the document itself. Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional convention.28 In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the earlier pointed out that these provisions are really lifted from the two previous
fulfillment of civil obligations, the domicile of natural persons is their place of habitual Constitutions of 1935 and 1973, with the exception of the last paragraph. They could
residence." In Ong vs. Republic, this court took the concept of domicile to mean an not therefore have foreseen at that time the phenomenon now described as the
individuals "permanent home," "a place to which, whenever absent for business or Filipino labor force explosion overseas.
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 According to government data, there are now about 600,000 contract workers and
elements of "the fact of residing or physical presence in a fixed place" and animus employees, and although the major portions of these expatriate communities of
manendi, or the intention of returning there permanently. workers are to be found in the Middle East, they are scattered in 177 countries in the
world.
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 In a previous hearing of the Committee on Constitutional Commissions and
or country. The essential distinction between residence and domicile in law is that Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that
residence involves the intent to leave when the purpose for which the resident has there was no insuperable obstacle to making effective the right of suffrage for
taken up his abode ends. One may seek a place for purposes such as pleasure, Filipinos overseas. Those who have adhered to their Filipino citizenship
business, or health. If a persons intent be to remain, it becomes his domicile; if his notwithstanding strong temptations are exposed to embrace a more convenient
intent is to leave as soon as his purpose is established it is residence. It is thus, quite foreign citizenship. And those who on their own or under pressure of economic
perfectly normal for an individual to have different residences in various places. necessity here, find that they have to detach themselves from their families to work in
However, a person can only have a single domicile, unless, for various reasons, he other countries with definite tenures of employment. Many of them are on contract
successfully abandons his domicile in favor of another domicile of choice. employment for one, two, or three years. They have no intention of changing their
In Uytengsu vs. Republic, we laid this distinction quite clearly: 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
"There is a difference between domicile and residence. Residence is used Section 1 which says:
to indicate a place of abode, whether permanent or temporary; domicile
denotes a fixed permanent residence to which, when absent, one has the Suffrage shall be exercised by all citizens of the Philippines not otherwise
intention of returning. A man may have a residence in one place and a disqualified by law, who are eighteen years of age or over, and who shall
domicile in another. Residence is not domicile, but domicile is residence have resided in the Philippines for at least one year and in the place wherein
coupled with the intention to remain for an unlimited time. A man can have they propose to vote for at least six months preceding the election.
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 I, therefore, ask the Committee whether at the proper time they might entertain an
of domicile, but it is not by any means necessarily so since no length of amendment that will make this exercise of the right to vote abroad for Filipino citizens
residence without intention of remaining will constitute domicile."
an effective, rather than merely a nominal right under this proposed Constitution.

For political purposes the concepts of residence and domicile are dictated by the
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying
peculiar criteria of political laws. As these concepts have evolved in our election that, I would like to make a comment on the meaning of "residence" in the
law, what has clearly and unequivocally emerged is the fact that residence for Constitution because I think it is a concept that has been discussed in various
election purposes is used synonymously with domicile.32 (Emphasis supplied) 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.
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this Allow me to quote:
country, the framers of the Constitution considered the circumstances that impelled them to
require Congress to establish a system for overseas absentee voting, thus: 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
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, places, practice of his avocation, reengaging in business. When an election
which here has a residential restriction, is not denied to citizens temporarily residing is to be held, the citizen who left his birthplace to improve his lot may decide
or working abroad. Based on the statistics of several government agencies, there to return to his native town, to cast his ballot, but for professional or business
ought to be about two million such Filipinos at this time. Commissioner Bernas had
reasons, or for any other reason, he may not absent himself from the place of The Constitutional Commission realized that under the laws then existing and considering the
his professional or business activities. 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
So, they are here registered as voters as he has the qualifications to be one, itself provides for the residency requirement of voters:
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 MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if
registration, the animus revertendi to his home, to his domicile or residence the term "absentee voting" also includes transient voting; meaning, those who are, let
of origin has not forsaken him. us say, studying in Manila need not go back to their places of registration, for
instance, in Mindanao, to cast their votes.
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 MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
residence of origin.
MR. REGALADO. How about those people who cannot go back to the places where
In other words, "residence" in this provision refers to two residence qualifications: they are registered?
"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, MR. MONSOD. Under the present Election Code, there are provisions for allowing
but as far as residence in the place where he will actually cast his ballot is concerned, students and military people who are temporarily in another place to register and
the meaning seems to be different. He could have a domicile somewhere else and vote. I believe that those situations can be covered by the Omnibus Election
yet he is a resident of a place for six months and he is allowed to vote there. So that Code. The reason we want absentee voting to be in the Constitution as a
there may be serious constitutional obstacles to absentee voting, unless the vote of mandate to the legislature is that there could be inconsistency on the
the person who is absent is a vote which will be considered as cast in the place residence rule if it is just a question of legislation by Congress. So, by allowing
of his domicile. it and saying that this is possible, then legislation can take care of the
rest.34 (Emphasis supplied)
MR. OPLE. Thank you for citing the jurisprudence.
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
It gives me scant comfort thinking of about two million Filipinos who should enjoy the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems
right of suffrage, at least a substantial segment of these overseas Filipino that could impede the implementation of its pursuit to enfranchise the largest number of
communities. The Committee, of course, is aware that when this Article of the qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly
Constitution explicitly and unequivocally extends the right of effective suffrage to mandated Congress to provide a system for overseas absentee voting.
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 The discussion of the Constitutional Commission on the effect of the residency requirement
Philippine government, mainly through the COMELEC and the Ministry of Foreign prescribed by Section 1, Article V of the Constitution on the proposed system of absentee
Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put voting for qualified Filipinos abroad is enlightening:
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
MR. SUAREZ. May I just be recognized for a clarification. There are certain
right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the
qualifications for the exercise of the right of suffrage like having resided in the
Committee for saying that an amendment to this effect may be entertained at the
Philippines for at least one year and in the place where they propose to vote for at
proper time. . . . . . . . . . 33 (Emphasis supplied) 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
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside voters like Filipinos abroad?
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
THE PRESIDENT. Would Commissioner Monsod care to answer?
countrys leaders is concerned.
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, took that into account as its meaning. That is referring to qualified Filipino citizens
that the domicile requirements as well as the qualifications and disqualifications temporarily abroad.
would be the same.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
THE PRESIDENT. Are we leaving it to the legislature to devise the system? 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
FR. BERNAS. I think there is a very legitimate problem raised there. 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. Yes.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to


MR. BENGZON. I believe Commissioner Suarez is clarified.
provide a system.
FR. BERNAS. But I think it should be further clarified with regard to the residence
MR. MONSOD. Yes.
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. THE PRESIDENT. The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. TINGSON. Madam President, may I then suggest to the Committee to change
the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY MR. MONSOD. That is right. They must have the qualifications and none of the
FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the Committee disqualifications.
wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement? THE PRESIDENT. It is just to devise a system by which they can vote.

THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)

MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
FILIPINOS ABROAD" because "QUALIFIED" would assume that he has the responsibility of devising a system of absentee voting. The qualifications of voters as stated
qualifications and none of the disqualifications to vote. 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
MR. TINGSON. That is right. So does the Committee accept? 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
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
the provision on absentee voting, the Constitutional Commission discussed how the system
should work:
THE PRESIDENT. Does the Committee accept the amendment?
MR. SUAREZ. For clarification purposes, we just want to state for the record that in
MR. REGALADO. Madam President. 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
THE PRESIDENT. Commissioner Regalado is recognized. 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.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed
amendment, I specifically stated that the National Assembly shall prescribe a system In other words, if that qualified voter is registered in Angeles City, then he can vote
which will enable qualified citizens, temporarily absent from the Philippines, to vote. only for the local and national candidates in Angeles City. I just want to make that
According to Commissioner Monsod, the use of the phrase "absentee voting" already clear for the record.
MR. REGALADO. Madam President. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are
more clarifications needed from the body.
THE PRESIDENT. What does Commissioner Regalado say?
Also, the Floor Leader is happy to announce that there are no more registered
MR. REGALADO. I just want to make a note on the statement of Commissioner Commissioners to propose amendments. So I move that we close the period of
Suarez that this envisions Filipinos residing abroad. The understanding in the amendments.36 (Emphasis supplied)
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 It is clear from these discussions of the members of the Constitutional Commission that they
before the elections he has to fly to the United States, so he could not cast his vote. intended to enfranchise as much as possible all Filipino citizens abroad who have not
He is temporarily abroad, but not residing there. He stays in a hotel for two days and abandoned their domicile of origin. The Commission even intended to extend to young
comes back. This is not limited only to Filipinos temporarily residing abroad. Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines,
But as long as he is temporarily abroad on the date of the elections, then he and consider them qualified as voters for the first time.
can fall within the prescription of Congress in that situation.
It is in pursuance of that intention that the Commission provided for Section 2 immediately
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we after the residency requirement of Section 1. By the doctrine of necessary implication in
need this clarification on record. statutory construction, which may be applied in construing constitutional provisions, 37 the
strategic location of Section 2 indicates that the Constitutional Commission provided for an
MR. MONSOD. Madam President, to clarify what we mean by "temporarily exception to the actual residency requirement of Section 1 with respect to qualified Filipinos
abroad," it need not be on very short trips. One can be abroad on a treaty traders abroad. The same Commission has in effect declared that qualified Filipinos who are not in
visa. Therefore, when we talk about registration, it is possible that his residence is in the Philippines may be allowed to vote even though they do not satisfy the residency
Angeles and he would be able to vote for the candidates in Angeles, but Congress requirement in Section 1, Article V of the Constitution.
or the Assembly may provide the procedure for registration, like listing ones
name, in a registry list in the embassy abroad. That is still possible under the That Section 2 of Article V of the Constitution is an exception to the residency requirement
system. 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:
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod
agrees with this. 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
Suppose we have a situation of a child of a diplomatic officer who reaches the voting supreme in any statute that we may enact.
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? Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:

MR. MONSOD. Yes, it is possible that the system will enable that child to comply with Section 1. Suffrage may be exercised by all citizens of the Philippines not
the registration requirements in an embassy in the United States and his name is otherwise disqualified by law, who are at least eighteen years of age, and
then entered in the official registration book in Angeles City, for instance. 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
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a preceding the election.
registered voter of a locality here.
Now, Mr. President, the Constitution says, "who shall have resided in the
MR. MONSOD. That is right. He does not have to come home to the Philippines to Philippines." They are permanent immigrants. They have changed residence so they
comply with the registration procedure here. 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?
FR. BERNAS. So, he does not have to come home.
Senator Angara. Good question, Mr. President. And this has been asked in various That is why I am raising this point because I think we have a fundamental difference
fora. This is in compliance with the Constitution. One, the interpretation here of here.
"residence" is synonymous with "domicile."
Senator Angara. It is a good point to raise, Mr. President. But it is a point already
As the gentleman and I know, Mr. President, "domicile" is the intent to return to ones well-debated even in the constitutional commission of 1986. And the reason
home. And the fact that a Filipino may have been physically absent from the Section 2 of Article V was placed immediately after the six-month/one-year
Philippines and may be physically a resident of the United States, for example, residency requirement is to demonstrate unmistakably that Section 2 which
but has a clear intent to return to the Philippines, will make him qualified as a authorizes absentee voting is an exception to the six-month/one-year
resident of the Philippines under this law. residency requirement. That is the first principle, Mr. President, that one must
remember.
This is consistent, Mr. President, with the constitutional mandate that we that
Congress must provide a franchise to overseas Filipinos. 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
If we read the Constitution and the suffrage principle literally as demanding interpreted as synonymous with "domicile."
physical presence, then there is no way we can provide for offshore voting to
our offshore kababayan, Mr. President. But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, impossible to give a franchise to vote to overseas Filipinos who do not
it reads: "The Congress shall provide a system for securing the secrecy and sanctity physically live in the country, which is quite ridiculous because that is exactly
of the ballot as well as a system for absentee voting by qualified Filipinos abroad." the whole point of this exercise to enfranchise them and empower them to
vote.38 (Emphasis supplied)
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 Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
anchored on the proposition that they are qualified. Absent the qualification, process, to wit:
they cannot vote. And "residents" (sic) is a qualification.
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
I will lose votes here from permanent residents so-called "green-card holders", but disqualified by law, at least eighteen (18) years of age on the day of elections, may
the Constitution is the Constitution. We cannot compromise on this. The Senate vote for president, vice-president, senators and party-list representatives.
cannot be a party to something that would affect or impair the Constitution.
which does not require physical residency in the Philippines; and Section 5 of the assailed
Look at what the Constitution says "In the place wherein they propose to vote for at law which enumerates those who are disqualified, to wit:
least six months immediately preceding the election."
SEC. 5. Disqualifications. The following shall be disqualified from voting under this
Mr. President, all of us here have run (sic) for office. Act:

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
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 b) Those who have expressly renounced their Philippine citizenship and who have
is. I am not talking even about the Election Code. I am talking about the Constitution. pledged allegiance to a foreign country;

As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. c) Those who have committed and are convicted in a final judgment by a court or
But he must do so, make the transfer six months before the election, otherwise, he is tribunal of an offense punishable by imprisonment of not less than one (1) year,
not qualified to vote. 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 return to this country; thus, without the affidavit, the presumption of abandonment of
disqualified to vote under this subsection shall automatically acquire the right to vote Philippine domicile shall remain.
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 Further perusal of the transcripts of the Senate proceedings discloses another reason why
tribunals only on the basis of reciprocity and subject to the formalities and processes the Senate required the execution of said affidavit. It wanted the affiant to exercise the option
prescribed by the Rules of Court on execution of judgments; to return or to express his intention to return to his domicile of origin and not to preempt that
choice by legislation. Thus:
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 Senator Villar. Yes, we are going back.
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
It states that: "For Filipino immigrants and those who have acquired permanent
his/her registration under this Act. Such affidavit shall also state that he/she has not
resident status abroad," a requirement for the registration is the submission of "a
applied for citizenship in another country. Failure to return shall be cause for the Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or
removal of the name of the immigrant or permanent resident from the National consulate official authorized to administer oath"
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
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
e) Any citizen of the Philippines abroad previously declared insane or incompetent by qualified to exercise the right of suffrage? What if the Filipino immigrant has no
competent authority in the Philippines or abroad, as verified by the Philippine purpose of returning? Is he automatically disbarred from exercising this right to
embassies, consulates or foreign service establishments concerned, unless such
suffrage?
competent authority subsequently certifies that such person is no longer insane or
incompetent.
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
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies matter whether he is a green-card holder in the U.S. or not, he will be
an immigrant or permanent resident who is "recognized as such in the host country" because
authorized to vote. But if he is already a green-card holder, that means he has
immigration or permanent residence in another country implies renunciation of ones acquired permanent residency in the United States, then he must indicate an
residence in his country of origin. However, same Section allows an immigrant and intention to return. This is what makes for the definition of "domicile." And to
permanent resident abroad to register as voter for as long as he/she executes an affidavit to acquire the vote, we thought that we would require the immigrants and the green-
show that he/she has not abandoned his domicile in pursuance of the constitutional intent card holders . . . Mr. President, the three administration senators are leaving, maybe
expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise
we may ask for a vote [Laughter].
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 Senator Villar. For a merienda, Mr. President.
Congress to establish a system for absentee voting.
Senator Angara. Mr. President, going back to the business at hand. The rationale for
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or the requirement that an immigrant or a green-card holder should file an affidavit that
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the he will go back to the Philippines is that, if he is already an immigrant or a green-card
immigrant or permanent resident to go back and resume residency in the Philippines, but holder, that means he may not return to the country any more and that contradicts
more significantly, it serves as an explicit expression that he had not in fact abandoned his the definition of "domicile" under the law.
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 But what we are trying to do here, Mr. President, is really provide the choice to
a voter to perform a condition to be qualified to vote in a political exercise." 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
To repeat, the affidavit is required of immigrants and permanent residents abroad because by file an affidavit that we want to go back." But we want to give him the opportunity
their status in their host countries, they are presumed to have relinquished their intent to to make that decision. We do not want to make that decision for
him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are 11.3. Consular and diplomatic services rendered in connection with the overseas
disqualified to run for any elective office finds no application to the present case because the absentee voting processes shall be made available at no cost to the overseas
Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who absentee voter.
are immigrants and permanent residents in their host countries.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be enacted the law prescribing a system of overseas absentee voting in compliance with the
considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the constitutional mandate. Such mandate expressly requires that Congress provide a system
requirements of registration under the new law for the purpose of exercising their right of of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines
suffrage. 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
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in
"resume actual physical permanent residence in the Philippines not later than three years the Philippines. He is presumed not to have lost his domicile by his physical absence from
from approval of his/her registration," the Filipinos abroad must also declare that they have this country. His having become an immigrant or permanent resident of his host country does
not applied for citizenship in another country. Thus, they must return to the Philippines; not necessarily imply an abandonment of his intention to return to his domicile of origin, the
otherwise, their failure to return "shall be cause for the removal" of their names "from the Philippines. Therefore, under the law, he must be given the opportunity to express that he
National Registry of Absentee Voters and his/her permanent disqualification to vote has not actually abandoned his domicile in the Philippines by executing the affidavit required
in absentia." by Sections 5(d) and 8(c) of the law.

Thus, Congress crafted a process of registration by which a Filipino voter permanently Petitioners speculative apprehension that the implementation of Section 5(d) would affect the
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has credibility of the elections is insignificant as what is important is to ensure that all those who
not relinquished Philippine citizenship and who has not actually abandoned his/her intentions possess the qualifications to vote on the date of the election are given the opportunity and
to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough
Philippine embassy, consulate or other foreign service establishments of the place which has resources and talents to ensure the integrity and credibility of any election conducted
jurisdiction over the country where he/she has indicated his/her address for purposes of the pursuant to R.A. No. 9189.
elections, while providing for safeguards to a clean election.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Thus, Section 11 of R.A. No. 9189 provides: 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.
SEC. 11. Procedure for Application to Vote in Absentia.
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
11.1. Every qualified citizen of the Philippines abroad whose application for
proclamation of the winning candidates and cause further confusion and doubt on the
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, integrity of the results of the election. Indeed, the probability that after an immigrant has
consulate or other foreign service establishment authorized by the Commission, a 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
sworn written application to vote in a form prescribed by the Commission. The
determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,40 the
authorized officer of such embassy, consulate or other foreign service establishment
Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it
shall transmit to the Commission the said application to vote within five (5) days from
impractical.
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. 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
11.2. Every application to vote in absentia may be done personally at, or by mail 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
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. 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 the President of the Senate shall, not later than thirty days after the day of the
by the qualified voters abroad who were not able to return within three years as promised? election, open all the certificates in the presence of the Senate and the House of
What is the effect on the votes cast by the non-returnees in favor of the winning candidates? Representatives in joint public session, and the Congress, upon determination of the
The votes cast by qualified Filipinos abroad who failed to return within three years shall not authenticity and due execution thereof in the manner provided by law, canvass the
be invalidated because they were qualified to vote on the date of the elections, but their votes.
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 The person having the highest number of votes shall be proclaimed elected, but in
to vote in absentia. 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
In fine, considering the underlying intent of the Constitution, the Court does not find Section the Congress, voting separately.
5(d) of R.A. No. 9189 as constitutionally defective.
The Congress shall promulgate its rules for the canvassing of the certificates.
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, which gives to Congress the duty to canvass the votes and proclaim the winning candidates
vice-president, senators and party-list representatives. for president and vice-president.

Section 18.5 of the same Act provides: 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
SEC. 18. On-Site Counting and Canvassing. only proclaim the winning Senators and party-list representatives but not the President and
Vice-President.41
.........
Respondent COMELEC has no comment on the matter.
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. Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is
Notwithstanding the foregoing, the Commission is empowered to order the far too sweeping that it necessarily includes the proclamation of the winning candidates for
proclamation of winning candidates despite the fact that the scheduled election the presidency and the vice-presidency.
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 Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
to such country or countries, in which events, factors and circumstances are beyond Constitution only insofar as said Section totally disregarded the authority given to Congress
the control or influence of the Commission. (Emphasis supplied) by the Constitution to proclaim the winning candidates for the positions of president and vice-
president.
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 In addition, the Court notes that Section 18.4 of the law, to wit:
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
18.4. . . . Immediately upon the completion of the canvass, the chairman of the
Article VII of the Constitution:
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
SEC. 4 . . . Statements of Votes to the Commission, . . . [Emphasis supplied]

The returns of every election for President and Vice-President, duly certified by the clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the
board of canvassers of each province or city, shall be transmitted to the Congress, returns of every election for President and Vice-President shall be certified by the board of
directed to the President of the Senate. Upon receipt of the certificates of canvass, canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally Oversight Committee. Voting by mail may be allowed in countries that satisfy the
belongs to it or, as aptly stated by petitioner, to encroach "on the power of Congress to following conditions:
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 a) Where the mailing system is fairly well-developed and secure to prevent occasion
should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the for fraud;
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.
b) Where there exists a technically established identification system that would
preclude multiple or proxy voting; and
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?
c) Where the system of reception and custody of mailed ballots in the embassies,
consulates and other foreign service establishments concerned are adequate and
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common well-secured.
Provisions) of the Constitution, to wit:
Thereafter, voting by mail in any country shall be allowed only upon review and
Section 1. The Constitutional Commissions, which shall be independent, are the approval of the Joint Congressional Oversight Committee . . . . . . . . . (Emphasis
Civil Service Commission, the Commission on Elections, and the Commission on supplied)
Audit. (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence
He submits that the creation of the Joint Congressional Oversight Committee with the power of constitutional commissions.
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
The Solicitor General takes exception to his prefatory statement that the constitutional
a constitutional body, is not under the control of either the executive or legislative challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
departments of government; that only the COMELEC itself can promulgate rules and unconstitutional on the ground that there is nothing in Article VI of the Constitution on
regulations which may be changed or revised only by the majority of its members; and that
Legislative Department that would as much as imply that Congress has concurrent power to
should the rules promulgated by the COMELEC violate any law, it is the Court that has the enforce and administer election laws with the COMELEC; and by the principles of exclusio
power to review the same via the petition of any interested party, including the legislators. unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of all others.
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
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
upon Section 1, Article IX-A of the Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It asserts that its power to formulate rules
and regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held that the However, the Court finds it expedient to expound on the role of Congress through the Joint
power of the COMELEC to formulate rules and regulations is implicit in its power to Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC,
implement regulations under Section 2(1) of Article IX-C43 of the Constitution. COMELEC as a constitutional body.
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 R.A. No. 9189 created the JCOC, as follows:
COMELEC rules and only in cases of grave abuse of discretion.
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit: Oversight Committee is hereby created, composed of the Chairman of the Senate
Committee on Constitutional Amendments, Revision of Codes and Laws, and seven
SEC. 17. Voting by Mail. (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
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in Representatives: Provided, That, of the seven (7) members to be designated by each
not more than three (3) countries, subject to the approval of the Congressional
House of Congress, four (4) should come from the majority and the remaining three orderly and honest elections. We may not agree fully with its choice of means, but
(3) from the minority. 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
The Joint Congressional Oversight Committee shall have the power to monitor dealt with realistically not from the standpoint of pure theory. The Commission on
and evaluate the implementation of this Act. It shall review, revise, amend and Elections, because of its fact-finding facilities, its contacts with political strategists,
approve the Implementing Rules and Regulations promulgated by the and its knowledge derived from actual experience in dealing with political
Commission. (Emphasis supplied) controversies, is in a peculiarly advantageous position to decide complex political
questions.45 (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 The Court has no general powers of supervision over COMELEC which is an independent
this Act within sixty (60) days from the effectivity of this Act. The Implementing body "except those specifically granted by the Constitution," that is, to review its decisions,
Rules and Regulations shall be submitted to the Joint Congressional Oversight orders and rulings.46 In the same vein, it is not correct to hold that because of its recognized
Committee created by virtue of this Act for prior approval. 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.
. . . . . . . . . (Emphasis supplied)

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue
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 the necessary rules and regulations to effectively implement the provisions of this Act within
that the authority of Congress to "monitor and evaluate the implementation" of R.A. No. 9189 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
is geared towards possible amendments or revision of the law itself and thus, may be
agency the authority to craft the rules and regulations implementing the law it has enacted, in
performed in aid of its legislation.
recognition of the administrative expertise of that agency in its particular field of
operation.47 Once a law is enacted and approved, the legislative function is deemed
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the accomplished and complete. The legislative function may spring back to Congress relative to
JCOC the following functions: (a) to "review, revise, amend and approve the Implementing the same law only if that body deems it proper to review, amend and revise the law, but
Rules and Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) certainly not to approve, review, revise and amend the IRR of the COMELEC.
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.
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
The ambit of legislative power under Article VI of the Constitution is circumscribed by other authority. Congress trampled upon the constitutional mandate of independence of the
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 COMELEC. Under such a situation, the Court is left with no option but to withdraw from its
Constitution ordaining that constitutional commissions such as the COMELEC shall be usual reticence in declaring a provision of law unconstitutional.
"independent."
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee
independent COMELEC, the Court has held that "[w]hatever may be the nature of the created by virtue of this Act for prior approval," and the second sentence of the second
functions of the Commission on Elections, the fact is that the framers of the Constitution paragraph of Section 25 stating that "[i]t shall review, revise, amend and approve the
wanted it to be independent from the other departments of the Government."44In an earlier Implementing Rules and Regulations promulgated by the Commission," whereby Congress,
case, the Court elucidated: 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
The Commission on Elections is a constitutional body. It is intended to play a distinct brazenly violate the mandate on the independence of the COMELEC.
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 Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in
a less responsible organization. The Commission may err, so may this court also. It the first sentence of Section 17.1 which empowers the Commission to authorize voting by
should be allowed considerable latitude in devising means and methods that will mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon
insure the accomplishment of the great objective for which it was created free,
review and approval of the Joint Congressional Oversight Committee" found in the second SO ORDERED.
paragraph of the same section are unconstitutional as they require review and approval of
voting by mail in any country after the 2004 elections. Congress may not confer upon itself
the authority to approve or disapprove the countries wherein voting by mail shall be allowed,
as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of
R.A. No. 9189.48 Otherwise, Congress would overstep the bounds of its constitutional
mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion
of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections
17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers
given to the Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No.
9189 are declared VOIDfor 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.
G.R. No. 134015 July 19, 1999 2. Annex "B" Voter's Registration Record with SN
31326504 dated June 22, 1997 indicating respondent's
JUAN DOMINO, petitioner, registration at Precinct No. 4400-A, Old Balara, Quezon City;
vs.
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. 3. Annex "C" Respondent's Community Tax Certificate
BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE No. 11132214C dated January 15, 1997;
CHIONGBIAN-SOLON, intervenor.
4. Annex "D" Certified true copy of the letter of Herson D.
Dema-ala, Deputy Provincial & Municipal Treasurer of
Alabel, Sarangani, dated February 26, 1998, addressed to
DAVIDE, JR., CJ.: Mr. Conrado G. Butil, which reads:

Challenged in this case for certiorari with a prayer for preliminary injunction are the In connection with your letter of even date, we are furnishing
Resolution of 6 May 19981 of the Second Division of the Commission on Elections (hereafter you herewith certified xerox copy of the triplicate copy of
COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate COMMUNITY TAX CERTIFICATE NO. 11132214C in the
for representative of the Lone Legislative District of the Province of Sarangani in the 11 May name of Juan Domino.
1998 elections, and the Decision of 29 May 19982 of the COMELEC en banc denying
DOMINO's motion for reconsideration. Furthermore, Community Tax Certificate No. 11132212C of
the same stub was issued to Carlito Engcong on September
The antecedents are not disputed.1wphi1.nt 5, 1997, while Certificate No. 11132213C was also issued to
Mr. Juan Domino but was cancelled and serial no.
On 25 March 1998, DOMINO filed his certificate of candidacy for the position of 11132215C was issued in the name of Marianita Letigio on
Representative of the Lone Legislative District of the Province of Sarangani indicating in item September 8, 1997.
nine (9) of his certificate that he had resided in the constituency where he seeks to be elected
for one (1) year and two (2) months immediately preceding the election.3 5. Annex "E" The triplicate copy of the Community Tax
Certificate No. 11132214C in the name of Juan Domino
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. dated September 5, 1997;
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98- 6. Annex "F" Copy of the letter of Provincial Treasurer
022 and assigned to the Second Division of the COMELEC. Private respondents alleged that Lourdes P. Riego dated March 2, 1998 addressed to Mr.
DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much Herson D. Dema-ala, Deputy Provincial Treasurer and
less a registered voter, of the province of Sarangani where he seeks election. To substantiate Municipal Treasurer of Alabel, Sarangani, which states:
their allegations, private respondents presented the following evidence:
For easy reference, kindly turn-over to the undersigned for
1. Annex "A" the Certificate of Candidacy of respondent safekeeping, the stub of Community Tax Certificate
for the position of Congressman of the Lone District of the containing Nos. 11132201C-11132250C issued to you on
Province of Sarangani filed with the Office of the Provincial June 13, 1997 and paid under Official Receipt No. 7854744.
Election Supervisor of Sarangani on March 25, 1998, where
in item 4 thereof he wrote his date of birth as December 5, Upon request of Congressman James L. Chiongbian.
1953; in item 9, he claims he have resided in the
constituency where he seeks election for one (1) year and 7. Annex "G" Certificate of Candidacy of respondent for
two (2) months; and, in item 10, that he is registered voter of the position of Congressman in the 3rd District of Quezon
Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani; City for the 1995 elections filed with the Office of the
Regional Election Director, National Capital Region, on
March 17, 1995, where, in item 4 thereof, he wrote his birth
date as December 22, 1953; in item 8 thereof his "residence Metro Manila, Branch 35, Quezon City, in Election Case NO.
in the constituency where I seek to be elected immediately 725 captioned as "In the Matter of the Petition for the
preceding the election" as 3 years and 5 months; and, in Exclusion from the List of voters of Precinct No. 4400-A
item 9, that he is a registered voter of Precinct No. 182, Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda
Barangay Balara, Quezon City; Domino, Petitioners, -versus- Elmer M. Kayanan, Election
Officer, Quezon City, District III, and the Board of Election
8. Annex "H" a copy of the APPLICATION FOR Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,
TRANSFER OF REGISTRATION RECORDS DUE TO Respondents." The dispositive portion of which reads:
CHANGE OF RESIDENCE of respondent dated August 30,
1997 addressed to and received by Election Officer Mantil 1. Declaring the registration of petitioners as
Alim, Alabel, Sarangani, on September 22, 1997, stating voters of Precinct No. 4400-A, Barangay Old
among others, that "[T]he undersigned's previous residence Balara, in District III Quezon City as
is at 24 Bonifacio Street, Ayala Heights, Quezon City, III completely erroneous as petitioners were no
District, Quezon City; wherein he is a registered voter" and longer residents of Quezon City but of
"that for business and residence purposes, the undersigned Alabel, Sarangani where they have been
has transferred and conducts his business and reside at residing since December 1996;
Barangay Poblacion, Alabel, Province of Sarangani prior to
this application;" 2. Declaring this erroneous registration of
petitioners in Quezon City as done in good
9. Annex "I" Copy of the SWORN APPLICATION FOR OF faith due to an honest mistake caused by
CANCELLATION OF THE VOTER'S [TRANSFER OF] circumstances beyond their control and
PREVIOUS REGISTRATION of respondent subscribed and without any fault of petitioners;
sworn to on 22 October 1997 before Election Officer Mantil
Allim at Alabel, Sarangani. 4 3. Approving the transfer of registration of
voters of petitioners from Precint No. 4400-A
For his defense, DOMINO maintains that he had complied with the one-year residence of Barangay Old Balara, Quezon City to
requirement and that he has been residing in Sarangani since January 1997. In support of Precinct No. 14A1 of Barangay Poblacion of
the said contention, DOMINO presented before the COMELEC the following exhibits, to wit: Alabel, Sarangani; and

1. Annex "1" Copy of the Contract of Lease between Nora 4. Ordering the respondents to immediately
Dacaldacal as Lessor and Administrator of the properties of transfer and forward all the election/voter's
deceased spouses Maximo and Remedios Dacaldacal and registration records of the petitioners in
respondent as Lessee executed on January 15, 1997, Quezon City to the Election Officer, the
subscribed and sworn to before Notary Public Johnny P. Election Registration Board and other
Landero; Comelec Offices of Alabel, Sarangani where
the petitioners are obviously qualified to
2. Annex "2" Copy of the Extra-Judicial Settlement of excercise their respective rights of suffrage.
Estate with Absolute Deed of sale executed by and between
the heirs of deceased spouses Maximo and Remedios 4. Annex "4" Copy of the Application for Transfer of
Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie Registration Records due to Change of Residence
and the respondent on November 4, 1997, subscribed and addressed to Mantil Alim, COMELEC Registrar, Alabel,
sworn to before Notary Public Jose A. Alegario; Sarangani, dated August 30, 1997.

3. Annex "3" True Carbon Xerox copy of the Decision 5. Annex "5" Certified True Copy of the Notice of Approval
dated January 19, 1998, of the Metropolitan Trial Court of of Application, the roster of applications for registration
approved by the Election Registration Board on October 20, containing a listing of the names of fifty-five (55) residents of
1997, showing the spouses Juan and Zorayda Bailon Alabel, Sarangani, declaring and certifying under oath that
Domino listed as numbers 111 and 112 both under Precinct they personally know the respondent as a permanent
No. 14A1, the last two names in the slate indicated as resident of Alabel, Sarangani since January 1997 up to
transferees without VRR numbers and their application present;
dated August 30, 1997 and September 30, 1997,
respectively. 13. Annexes "9", "9-a" and "9-b" Copies of Individual
Income Tax Return for the year 1997, BIR form 2316 and W-
6. Annex "6" same as Annex "5" 2, respectively, of respondent; and,

7. Annex "6-a" Copy of the Sworn Application for 14. Annex "10" The affidavit of respondent reciting the
Cancellation of Voter's Previous Registration (Annex "I", chronology of events and circumstances leading to his
Petition); relocation to the Municipality of Alabel, Sarangani,
appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G"
8. Annex "7" Copy of claim card in the name of with sub-markings "G-1" and "G-2" and "H" his CTC No.
respondent showing his VRR No. 31326504 dated October 111`32214C dated September 5, 1997, which are the same
20, 1997 as a registered voter of Precinct No. 14A1, as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-
Barangay Poblacion, Alabel, Sarangani; markings "9-a" and "9-b" except Annex "H".5

9. Annex "7-a" Certification dated April 16, 1998, issued On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
by Atty. Elmer M. Kayanan, Election Officer IV, District III, disqualified as candidate for the position of representative of the lone district of Sarangani for
Quezon City, which reads: lack of the one-year residence requirement and likewise ordered the cancellation of his
certificate of candidacy, on the basis of the following findings:
This is to certify that the spouses JUAN and ZORAYDA
DOMINO are no longer registered voters of District III, What militates against respondent's claim that he has met the residency
Quezon City. Their registration records (VRR) were requirement for the position sought is his own Voter's Registration Record
transferred and are now in the possession of the Election No. 31326504 dated June 22, 1997 [Annex "B", Petition] and his address
Officer of Alabel, Sarangani. indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This
evidence, standing alone, negates all his protestations that he established
residence at Barangay Poblacion, Alabel, Sarangani, as early as January
This certification is being issued upon the request of Mr.
1997. It is highly improbable, nay incredible, for respondent who previously
JUAN DOMINO.
ran for the same position in the 3rd Legislative District of Quezon City during
the elections of 1995 to unwittingly forget the residency requirement for the
10. Annex "8" Affidavit of Nora Dacaldacal and Maria office sought.
Lourdes Dacaldacal stating the circumstances and incidents
detailing their alleged acquaintance with respondent.
Counting, therefore, from the day after June 22, 1997 when respondent
registered at Precinct No. 4400-A, up to and until the day of the elections on
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the May 11, 1998, respondent clearly lacks the one (1) year residency
uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes, requirement provided for candidates for Member of the House of
Coraminda Lomibao and Elena V. Piodos subscribed and Representatives under Section 6, Article VI of the Constitution.
sworn to before Notary Public Bonifacio F. Doria, Jr., on April
18, 1998, embodying their alleged personal knowledge of
All told, petitioner's evidence conspire to attest to respondent's lack of
respondent's residency in Alabel, Sarangani;
residence in the constituency where he seeks election and while it may be
conceded that he is a registered voter as contemplated under Section 12 of
12. Annex "8-e" A certification dated April 20, 1998,
subscribed and sworn to before Notary Public Bonifacio,
R.A. 8189, he lacks the qualification to run for the position of Congressman The first issue.
for the Lone District of the Province of Sarangani.6
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in
On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus the exclusion proceedings declaring him a resident of the Province of Sarangani and not of
Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the Quezon City is final and conclusive upon the COMELEC cannot be sustained.
proclamation if winning, considering that the Resolution disqualifying him as candidate had
not yet become final and executory.7 The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code,
over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the
The result of the election, per Statement of Votes certified by the Chairman of the Provincial said jurisdiction, it is within the competence of the COMELEC to determine whether false
Board of Canvassers,8shows that DOMINO garnered the highest number of votes over his representation as to material facts was made in the certificate of candidacy, that will include,
opponents for the position of Congressman of the Province of Sarangani. among others, the residence of the candidate.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings
1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. as to the right of DOMINO to be included or excluded from the list of voters in the precinct
Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction within its territorial jurisdicton, does not preclude the COMELEC, in the determination of
alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to DOMINO's qualification as a candidate, to pass upon the issue of compliance with the
excess or lack of jurisdiction when it ruled that he did not meet the one-year residence residency requirement.
requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, character. Thus, the factual findings of the trial court and its resultant conclusions in the
the Court directed the parties to maintain the status quo prevailing at the time of the filing of exclusion proceedings on matters other than the right to vote in the precinct within its
the instant petition.9 territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion
or exclusion proceedings may pass upon any question necessary to decide the issue raised
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the including the questions of citizenship and residence of the challenged voter, the authority to
candidate receiving the second highest number of votes, was allowed by the Court to order the inclusion in or exclusion from the list of voters necessarily caries with it the power to
Intervene.10 INTERVENOR in her Motion for Leave to Intervene and in her Comment in inquire into and settle all matters essential to the exercise of said authority. However, except
Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino and for the right to remain in the list of voters or for being excluded therefrom for the particular
to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections. election in relation to which the proceedings had been held, a decision in an exclusion or
inclusion proceeding, even if final and unappealable, does not acquire the nature of res
judicata.13 In this sense, it does not operate as a bar to any future action that a party may
Before us DOMINO raised the following issues for resolution, to wit:
take concerning the subject passed upon in the proceeding.14Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political status, nor bar subsequent
a. Whether or not the judgment of the Metropolitan Trial proceedings on his right to be registered as a voter in any other election. 15
Court of Quezon City declaring petitioner as resident of
Sarangani and not of Quezon City is final, conclusive and
Thus, in Tan Cohon v. Election Registrar16 we ruled that:
binding upon the whole world, including the Commission on
Elections.
. . . It is made clear that even as it is here held that the order of the City Court
in question has become final, the same does not constitute res adjudicata as
b. Whether or not petitioner herein has resided in the subject
to any of the matters therein contained. It is ridiculous to suppose that such
congressional district for at least one (1) year immediately
an important and intricate matter of citizenship may be passed upon and
preceding the May 11, 1998 elections; and
determined with finality in such a summary and peremptory proceeding as
that of inclusion and exclusion of persons in the registry list of voters. Even if
c. Whether or not respondent COMELEC has jurisdiction the City Court had granted appellant's petition for inclusion in the permanent
over the petition a quo for the disqualification of petitioner.12 list of voters on the allegation that she is a Filipino citizen qualified to vote,
her alleged Filipino citizenship would still have been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its The present proceeding of quo warranto was interposed by Gregorio Nuval in
jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and his capacity as a registered candidate voted for the office of municipal
ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old president of Luna, against Norberto Guray, as an elected candidate for the
Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not same office. Therefore, there is no identity of parties in the two cases, since it
within the competence of the trial court, in an exclusion proceedings, to declare the is not enough that there be an identity of persons, but there must be an
challenged voter a resident of another municipality. The jurisdiction of the lower court over identity of capacities in which said persons litigate. (Art. 1259 of the Civil
exclusion cases is limited only to determining the right of voter to remain in the list of voters Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756,
or to declare that the challenged voter is not qualified to vote in the precint in which he is par. 1165)
registered, specifying the ground of the voter's disqualification. The trial court has no power to
order the change or transfer of registration from one place of residence to another for it is the In said case of the petition for the exclusion, the object of the litigation, or the
function of the election Registration Board as provided under Section 12 of R.A. No. litigious matter was the exclusion of Norberto Guray as a voter from the
8189. 17 The only effect of the decision of the lower court excluding the challenged voter from election list of the municipality of Luna, while in the
the list of voters, is for the Election Registration Board, upon receipt of the final decision, to present que warranto proceeding, the object of the litigation, or the litigious
remove the voter's registration record from the corresponding book of voters, enter the order matter is his exclusion or expulsion from the office to which he has been
of exclusion therein, and thereafter place the record in the inactive file.18 elected. Neither does there exist, then, any identity in the object of the
litigation, or the litigious matter.
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject
matter and cause of action are indispensable requirements for the application of said In said case of the petition for exclusion, the cause of action was that
doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion Norberto Guray had not the six months' legal residence in the municipality of
proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying Luna to be a qualified voter thereof, while in the present proceeding
that he and his wife be excluded from the Voter's List on the ground of erroneous registration of quo warranto, the cause of action is that Norberto Guray has not the one
while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by year's legal residence required for eligibility to the office of municipal
private respondents against DOMINO for alleged false representation in his certificate of president of Luna. Neither does there exist therefore, identity of causes of
candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is action.
essential that there must be between the first and the second action identity of parties,
identity of subject matter and identity of causes of action.19 In the present case, the aforesaid In order that res judicata may exist the following are necessary: (a) identity of
essential requisites are not present. In the case of Nuval v. Guray, et al., 20 the Supreme
parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of
Court in resolving a similar issue ruled that:
Lands, 39 Phil. 850). And as in the case of the petition for excluision and in
the present quo warranto proceeding, as there is no identity of parties, or of
The question to be solved under the first assignment of error is whether or things or litigious matter, or of issues or causes of action, there is no res
not the judgment rendered in the case of the petition for the exclusion of judicata.
Norberto Guray's name from the election list of Luna, is res judicata, so as to
prevent the institution and prosecution of an action in quo warranto, which is
The Second Issue.
now before us.
Was DOMINO a resident of the Province of Sarangani for at least one year immediately
The procedure prescribed by section 437 of the Administrative Code, as
preceding the 11 May 1998 election as stated in his certificate of candidacy?
amended by Act No. 3387, is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before
the justice of the peace of the capital or the circuit judge, in which case it may We hold in the negative.
be appealed to the judge of first instance, with whom said two lower judges
have concurrent jurisdiction. 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
The petition for exclusion was presented by Gregorio Nuval in his dual imports not only an intention to reside in a fixed place but also personal presence in that
capacity as qualified voter of the municipality of Luna, and as a duly place, coupled with conduct indicative of such intention.21 "Domicile" denotes a fixed
registered candidate for the office of president of said municipality, against permanent residence to which, whenever absent for business, pleasure, or some other
Norberto Guray as a registered voter in the election list of said municipality. reasons, one intends to return.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 domicile. 30 Thus the date of the contract of lease of a house and lot located in the province of
man must have a residence or domicile somewhere; (2) when once established it remains Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as
until a new one is acquired; and (3) a man can have but one residence or domicile at a the reckoning period of the one-year residence requirement.
time.23
Further, Domino's lack of intention to abandon his residence in Quezon City is further
Records show that petitioner's domicile of origin was Candon, Ilocos strengthened by his act of registering as voter in one of the precincts in Quezon City. While
Sur 24 and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. voting is not conclusive of residence, it does give rise to a strong presumption of residence
Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the especially in this case where DOMINO registered in his former barangay. Exercising the right
position of representative of the 3rd District of Quezon City in the May 1995 election. of election franchise is a deliberate public assertion of the fact of residence, and is said to
Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City have decided preponderance in a doubtful case upon the place the elector claims as, or
and has established a new "domicile" of choice at the Province of Sarangani. believes to be, his residence.31The fact that a party continously voted in a particular locality is
a strong factor in assisting to determine the status of his domicile.32
A person's "domicile" once established is considered to continue and will not be deemed lost
until a new one is established. 25 To successfully effect a change of domicile one must His claim that his registration in Quezon City was erroneous and was caused by events over
demonstrate an actual removal or an actual change of domicile; a bona fide intention of which he had no control cannot be sustained. The general registration of voters for purposes
abandoning the former place of residence and establishing a new one and definite acts which of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14,
correspond with the 15, 21, and 22.33
purpose. 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 While, Domino's intention to establish residence in Sarangani can be gleaned from the fact
period of time; the change of residence must be voluntary; and the residence at the place that be bought the house he was renting on November 4, 1997, that he sought cancellation of
chosen for the new domicile must be actual.27 his previous registration in Qezon City on 22 October 1997, 34 and that he applied for transfer
of registration from Quezon City to Sarangani by reason of change of residence on 30 August
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since 1997,35 DOMINO still falls short of the one year residency requirement under the Constitution.
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 In showing compliance with the residency requirement, both intent and actual presence in the
that they have seen petitioner and his family residing in their locality. district one intends to represent must satisfy the length of time prescribed by the fundamental
law.36 Domino's failure to do so rendered him ineligible and his election to office null and
While this may be so, actual and physical is not in itself sufficient to show that from said date void.37
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. The Third Issue.
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
DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft
one's fixed and permanent place of abode, one's home.28 of merit.

As a general rule, the principal elements of domicile, physical presence in the locality
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election
involved and intention to adopt it as a domicile, must concur in order to establish a new
Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy.
domicile. No change of domicile will result if either of these elements is absent. Intention to
Such jurisdiction continues even after election, if for any reason no final judgment of
acquire a domicile without actual residence in the locality does not result in acquisition of disqualification is rendered before the election, and the candidate facing disqualification is
domicile, nor does the fact of physical presence without intention.29 voted for and receives the highest number of votes38 and provided further that the winning
candidate has not been proclaimed or has taken his oath of office.39
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
It has been repeatedly held in a number of cases, that the House of Representatives
Sarangani but it does not engender the kind of permanency required to prove abandonment Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election,
of one's original domicile. The mere absence of individual from his permanent residence, no returns and qualifications of members of Congress as provided under Section 17 of Article VI
matter how long, without the intention to abandon it does not result in loss or change of
of the Constitution begins only after a candidate has become a member of the House of declared carried unless he or it receives a majority or plurality of the legal votes cast in the
Representatives. 40 election.47

The fact of obtaining the highest number of votes in an election does not automatically vest The effect of a decision declaring a person ineligible to hold an office is only that the election
the position in the winning candidate.41 A candidate must be proclaimed and must have taken fails entirely, that the wreath of victory cannot be transferred48 from the disqualified winner to
his oath of office before he can be considered a member of the House of Representatives. 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 votes49 and does not entitle the candidate
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone receiving the next highest number of votes to be declared elected. In such case, the electors
Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus have failed to make a choice and the election is a nullity. 50 To allow the defeated and
Resolution issued by the COMELEC on the day of the election ordering the suspension of repudiated candidate to take over the elective position despite his rejection by the electorate
DOMINO's proclamation should he obtain the winning number of votes. This resolution was is to disenfranchise the electorate without any fault on their part and to undermine the
issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying importance and meaning of democracy and the people's right to elect officials of their
DOMINO as candidate for the position. choice.51

Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes
Congressional District of the Province of Sarangani he cannot be deemed a member of the cannot be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to
House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which wit: if the electorate, fully aware in fact and in law of a candidate's disqualification so as to
has jurisdiction over the issue of his ineligibility as a candidate. 42 bring such awareness within the realm of notoriety, would nevertheless cast their votes in
favor of the ineligible candidate, 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,
Issue raised by INTERVENOR.
in which case, the eligible candidate obtaining the next higher number of votes may be
deemed elected, is misplaced.
After finding that DOMINO is disqualified as candidate for the position of representative of the
province of Sarangani, may INTERVENOR, as the candidate who received the next highest
number of votes, be proclaimed as the winning candidate? Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as
an ineligible candidate. Although the resolution declaring him ineligible as candidate was
rendered before the election, however, the same is not yet final and executory. In fact, it was
It is now settled doctrine that the candidate who obtains the second highest number of votes no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed
may not be proclaimed winner in case the winning candidate is disqualified. 43 In every DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
election, the people's choice is the paramount consideration and their expressed will must, at Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for
all times, be given effect. When the majority speaks and elects into office a candidate by DOMINO are presumed to have been cast in the sincere belief that he was a qualified
giving the highest number of votes cast in the election for that office, no one can be declared candidate, without any intention to misapply their franchise. Thus, said votes can not be
elected in his place.44 treated as stray, void, or meaningless.53

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are
a winner and imposed as the representative of a constituency, the majority of which have hereby AFFIRMED.1wphi1.nt
positively declared through their ballots that they do not choose him.45 To simplistically
assume that the second placer would have received the other votes would be to substitute
our judgment for the mind of the voters. He could not be considered the first among qualified SO ORDERED.
candidates because in a field which excludes the qualified candidate, the conditions would
have substantially changed.46 Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Buena, Gonzaga-Reyes and
Santiago, JJ., concur.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in all Panganiban J., In the result; please see separate opinion.
republican forms of government that no one can be declared elected and no measure can be
Quisumbing, J., In the result, only insofar or Petitioner Domino is adjudged disqualified.
Purisima and Pardo JJ., took no part. . . . This question first came before the courts at an early day, long before our
present easy and extensive means of transportation, and at a time before the
present ready movement from one country to another. At that time, men left
for Europe for the Western Continent or elsewhere largely for purposes of
adventure or in search of an opportunity for the promotion of commerce. It
was at the time before the invention of the steamboat and before the era of
the oceanic cable. Men left their native land knowing that they would be gone
for long periods of time, and that means of communication with their home
land were infrequent, difficult, and slow. The traditions of their native country
Separate Opinions were strong with these men. In the event of death, while absent, they desired
that their property should descend in accordance with the laws of the land of
PANGANIBAN, J., separate opinion; their birth. Many such men where adventurers who had the purpose and
intent to eventually return to the land of their nativity. There was a large
I concur "in the result": the petitioner failed to fulfill the one-year residence requirement in degree of sentiment connected with the first announcement of the rules of
order to qualify as a candidate for congressman of the lone district of Sarangani. With all due law in the matter of the estates of such men. . . .
respect, I disagree however with the majority view that residence as a qualification for
candidacy for an elective public office imports the same meaning as domicile. xxx xxx xxx

That a member of the House of Representative must be a resident of the district which he or These reasons, which were, to an extent at least, historical and patriotic,
she seeks to represent "for a period of not less than one year immediately preceding the day found early expression in the decisions of the courts on the question of
of the election" 1 is a constitutional requirement that should be interpreted in the sense in domicile. . . .
which ordinary lay persons understand it. The common people who ratified the Constitution
and were thereafter expected to abide by it would normally refer to the journals of the Subsequently, domicile was used in other "conflicts cases involving taxation, divorce and
Constitutional Commission in order to understand the words and phrases contained therein. other civil matters. To use it to determine qualifications for political office is to enlarge its
Rather, they would usually refer to the common source being used when they look up for the meaning beyond what was intended, resulting in strained and contortive interpretations of the
meaning of words the dictionary.2In this sense, Webster's definition of residence3 should Constitution.
be controlling.
Specifically, I submit that applying the concept of domicile in determining residence as a
When the Constitution speaks of residence, the word should be understood, consistent with qualification for an elective office would negate the objective behind the residence
Webster, to mean actual, physical and personal presence in the district that a candidate requirement of one year (or six months, in the case of local positions). This required period of
seeks to represent. In other words, the candidate's presence should be substantial enough to residence preceding the day of the election, I believe, is rooted in the desire that officials of
show by overts acts his intention to fulfill the duties of the position he seeks. districts or localities be acquainted not only with the metes and bounds of their constituencies
but, more important, with the constituents themselves their needs, difficulties, potentials for
If the framers of our basic law intended our people to understand residence as legal domicile, growth and development and all matters vital to their common welfare. Such requisite period
they should have said so. Then our people would have looked up the meaning of domicile would precisely give candidates the opportunity to be familiar with their desired
and would have understood the constitutional provision in that context. However, the framers constituencies, and likewise for the electorate to evaluate their fitness for the offices they
of our Constitution did not. I therefore submit that residence must be understood in its seek.
common dictionary meaning as understood by ordinary lay persons.
If all that is required of elective officials is legal domicile, then they would qualify even if, for
At any rate, the original concept of domicile, which arose from American jurisprudence, was several years prior to the election, they have never set foot in their districts (or in the country,
not intended to govern political rights. Rather, it was designed to resolve the conflict of laws for that matter), since it is possible to maintain legal domicile even without actual presence,
between or among states where a decedent may have lived for various reasons, for the provided one retains the animus revertendi or the intention to return.
purpose of determining which law was applicable as regards his estate. Allow me to quote
this short disquisition:4 The Constitution is the most basic law of the land. It enshrines the most cherished aspirations
and ideals of the population at large. It is not a document reserved only for sholarly
disquisition by the most eminent legal minds of the land. In ascertaining its import, lawyers meaning of words the dictionary.2In this sense, Webster's definition of residence3 should
are not meant to quibble over it, to define its legal niceties, or to articulate its nuances. Its be controlling.
contents and words should be interpreted in the sense understood by the ordinary men and
women who place their lives on the line in its defense and who pin their hopes for a better life When the Constitution speaks of residence, the word should be understood, consistent with
on its fulfillment. Webster, to mean actual, physical and personal presence in the district that a candidate
seeks to represent. In other words, the candidate's presence should be substantial enough to
The call for simplicity in understanding and interpreting our Constitution has been made a show by overts acts his intention to fulfill the duties of the position he seeks.
number of times. About three decades ago, this Court declared: 5
If the framers of our basic law intended our people to understand residence as legal domicile,
It is to be assumed that the words in which constitutional provisions are they should have said so. Then our people would have looked up the meaning of domicile
couched express the objective sought to be attained. They are to be given and would have understood the constitutional provision in that context. However, the framers
their ordinary meaning except where technical terms are employed in which of our Constitution did not. I therefore submit that residence must be understood in its
case the significance thus attached to them prevails. As the Constitution is common dictionary meaning as understood by ordinary lay persons.
not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its At any rate, the original concept of domicile, which arose from American jurisprudence, was
language as much as possible should be understood in the sense they have not intended to govern political rights. Rather, it was designed to resolve the conflict of laws
in common use. What it says according to the text of the provision to be between or among states where a decedent may have lived for various reasons, for the
construed compels acceptance and negates the power of the courts to alter purpose of determining which law was applicable as regards his estate. Allow me to quote
it, based on the postulate that the framers and the people mean what they this short disquisition:4
say. Thus there are cases where the need for construction is reduced to a
minimum.
. . . This question first came before the courts at an early day, long before our
present easy and extensive means of transportation, and at a time before the
Having said this, I still believe that Petitioner Juan Domino failed to adduce sufficient present ready movement from one country to another. At that time, men left
convincing evidence to prove his actual, physical and personal presence in the district of for Europe for the Western Continent or elsewhere largely for purposes of
Sarangani for at least one year prior to the 1998 elections. adventure or in search of an opportunity for the promotion of commerce. It
was at the time before the invention of the steamboat and before the era of
WHEREFORE, I vote to DISMISS the Petition at bar. the oceanic cable. Men left their native land knowing that they would be gone
for long periods of time, and that means of communication with their home
Separate Opinions land were infrequent, difficult, and slow. The traditions of their native country
were strong with these men. In the event of death, while absent, they desired
PANGANIBAN, J., separate opinion; that their property should descend in accordance with the laws of the land of
their birth. Many such men where adventurers who had the purpose and
intent to eventually return to the land of their nativity. There was a large
I concur "in the result": the petitioner failed to fulfill the one-year residence requirement in degree of sentiment connected with the first announcement of the rules of
order to qualify as a candidate for congressman of the lone district of Sarangani. With all due law in the matter of the estates of such men. . . .
respect, I disagree however with the majority view that residence as a qualification for
candidacy for an elective public office imports the same meaning as domicile.
xxx xxx xxx
That a member of the House of Representative must be a resident of the district which he or
These reasons, which were, to an extent at least, historical and patriotic,
she seeks to represent "for a period of not less than one year immediately preceding the day
found early expression in the decisions of the courts on the question of
of the election" 1 is a constitutional requirement that should be interpreted in the sense in
domicile. . . .
which ordinary lay persons understand it. The common people who ratified the Constitution
and were thereafter expected to abide by it would normally refer to the journals of the
Constitutional Commission in order to understand the words and phrases contained therein. Subsequently, domicile was used in other "conflicts cases involving taxation, divorce and
Rather, they would usually refer to the common source being used when they look up for the other civil matters. To use it to determine qualifications for political office is to enlarge its
meaning beyond what was intended, resulting in strained and contortive interpretations of the Having said this, I still believe that Petitioner Juan Domino failed to adduce sufficient
Constitution. convincing evidence to prove his actual, physical and personal presence in the district of
Sarangani for at least one year prior to the 1998 elections.
Specifically, I submit that applying the concept of domicile in determining residence as a
qualification for an elective office would negate the objective behind the residence WHEREFORE, I vote to DISMISS the Petition at bar.
requirement of one year (or six months, in the case of local positions). This required period of
residence preceding the day of the election, I believe, is rooted in the desire that officials of
districts or localities be acquainted not only with the metes and bounds of their constituencies
but, more important, with the constituents themselves their needs, difficulties, potentials for
growth and development and all matters vital to their common welfare. Such requisite period
would precisely give candidates the opportunity to be familiar with their desired
constituencies, and likewise for the electorate to evaluate their fitness for the offices they
seek.

If all that is required of elective officials is legal domicile, then they would qualify even if, for
several years prior to the election, they have never set foot in their districts (or in the country,
for that matter), since it is possible to maintain legal domicile even without actual presence,
provided one retains the animus revertendi or the intention to return.

The Constitution is the most basic law of the land. It enshrines the most cherished aspirations
and ideals of the population at large. It is not a document reserved only for sholarly
disquisition by the most eminent legal minds of the land. In ascertaining its import, lawyers
are not meant to quibble over it, to define its legal niceties, or to articulate its nuances. Its
contents and words should be interpreted in the sense understood by the ordinary men and
women who place their lives on the line in its defense and who pin their hopes for a better life
on its fulfillment.

The call for simplicity in understanding and interpreting our Constitution has been made a
number of times. About three decades ago, this Court declared: 5 G.R. No. 180088 January 19, 2009

It is to be assumed that the words in which constitutional provisions are MANUEL B. JAPZON, Petitioner,
couched express the objective sought to be attained. They are to be given vs.
their ordinary meaning except where technical terms are employed in which COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.
case the significance thus attached to them prevails. As the Constitution is
not primarily a lawyer's document, it being essential for the rule of law to DECISION
obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have CHICO-NAZARIO, J.:
in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of
it, based on the postulate that the framers and the people mean what they Court seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division
say. Thus there are cases where the need for construction is reduced to a of public respondent Commission on Elections (COMELEC) and the Resolution 4 dated 28
minimum. September 2007 of COMELEC en banc, in SPA No. 07-568, for having been rendered with
grave abuse of discretion, amounting to lack or excess of jurisdiction.
Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, of Foreign Citizenship. Given the aforementioned facts, Ty argued that he had reacquired his
in the local elections held on 14 May 2007. Philippine citizenship and renounced his American citizenship, and he had been a resident of
the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the 14
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a May 2007 elections. Therefore, Ty sought the dismissal of Japzons Petition in SPA No. 07-
Petition5 to disqualify and/or cancel Tys Certificate of Candidacy on the ground of material 568.
misrepresentation. Japzon averred in his Petition that Ty was a former natural-born Filipino,
having been born on 9 October 1943 in what was then Pambujan Sur, Hernani Eastern Pending the submission by the parties of their respective Position Papers in SPA No. 07-568,
Samar (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Chim Ty the 14 May 2007 elections were already held. Ty acquired the highest number of votes and
(a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty eventually migrated to the United was declared Mayor of the Municipality of General Macarthur, Eastern Samar, by the
States of America (USA) and became a citizen thereof. Ty had been residing in the USA for Municipal Board of Canvassers on 15 May 2007.7
the last 25 years. When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely
represented therein that he was a resident of Barangay 6, Poblacion, General Macarthur, Following the submission of the Position Papers of both parties, the COMELEC First Division
Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or rendered its Resolution8 dated 31 July 2007 in favor of Ty.
immigrant of any foreign country. While Ty may have applied for the reacquisition of his
Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General
The COMELEC First Division found that Ty complied with the requirements of Sections 3 and
Macarthur, Eastern Samar, for a period of one year immediately preceding the date of
5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:
election as required under Section 39 of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991. In fact, even after filing his application for reacquisition of
his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which Philippine citizenship is an indispensable requirement for holding an elective public office,
was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e.,
his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as no person owing allegiance to another nation, shall govern our people and our country or a
an American citizen as proven by his travel records. He had also failed to renounce his unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before
foreign citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California,
Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19,
Petition that the COMELEC order the disqualification of Ty from running for public office and 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate for or
the cancellation of the latters Certificate of Candidacy. occupying public office nor is in active service as commissioned or non-commissioned officer
in the armed forces in the country of which he was naturalized citizen.9
In his Answer6 to Japzons Petition in SPA No. 07-568, Ty admitted that he was a natural-
born Filipino who went to the USA to work and subsequently became a naturalized American The COMELEC First Division also held that Ty did not commit material misrepresentation in
citizen. Ty claimed, however, that prior to filing his Certificate of Candidacy for the Office of stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion,
Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he General Macarthur, Eastern Samar, for at least one year before the elections on 14 May
already performed the following acts: (1) with the enactment of Republic Act No. 9225, 2007. It reasoned that:
granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine Consulate
General in Los Angeles, California, USA, an application for the reacquisition of his Philippine Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S.
citizenship; (2) on 2 October 2005, Ty executed an Oath of Allegiance to the Republic of the citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof
Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern
Angeles, California, USA; (3) Ty applied for a Philippine passport indicating in his application Samar for at least one (1) year before the elections held on 14 May 2007 as he represented
that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General in his certificate of candidacy[.]
Macarthur, Eastern Samar. Tys application was approved and he was issued on 26 October
2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured and signed his As held in Coquilla vs. Comelec:
Community Tax Certificate (CTC) from the Municipality of General Macarthur, in which he
stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; "The term residence is to be understood not in its common acceptation as referring to
(5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, dwelling or habitation, but rather to domicile or legal residence, that is, the place where a
Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January party actually or constructively has his permanent home, where he, no matter where he may
2007 again stating therein his address as Barangay 6, Poblacion, General Macarthur, be found at any given time, eventually intends to return and remain (animus manendi). A
domicile of origin is acquired by every person at birth. It is usually the place where the childs Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First
parents reside and continues until the same is abandoned by acquisition of new domicile Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying
(domicile of choice). Japzons Motion for Reconsideration and affirming the assailed Resolution of the COMELEC
First Division, on the basis of the following ratiocination:
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen
after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently
reacquired Philippine citizenship, petitioner was an alien without any right to reside in the spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run
Philippines save as our immigration laws may have allowed him to stay as a visitor or as a as a candidate for any local post.
resident alien.
xxxx
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen.
Title 8, 1427(a) of the United States Code provides: It must be noted that absent any showing of irregularity that overturns the prevailing status of
a citizen, the presumption of regularity remains. Citizenship is an important aspect of every
Requirements of naturalization: Residence individuals constitutionally granted rights and privileges. This is essential in determining
whether one has the right to exercise pre-determined political rights such as the right to vote
(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless or the right to be elected to office and as such rights spring from citizenship.
such applicant, (1) year immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted for permanent Owing to its primordial importance, it is thus presumed that every person is a citizen of the
residence, within the United States for at least five years and during the five years country in which he resides; that citizenship once granted is presumably retained unless
immediately preceding the date of filing his petition has been physically present therein for voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship
periods totaling at least half of that time, and who has resided within the State or within the and allegiance to establish the fact.
district of the Service in the United States in which the applicant filed the application for at
least three months, (2) has resided continuously within the United States from the date of the Our review of the Motion for Reconsideration shows that it does not raise any new or novel
application up to the time of admission to citizenship, and (3) during all period referred to in issues. The arguments made therein have already been dissected and expounded upon
this subsection has been and still is a person of good moral character, attached to the extensively by the first Division of the Commission, and there appears to be no reason to
principles of the Constitution of the United States, and well disposed to the good order and depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any
happiness of the United States. (Emphasis added) material misrepresentation when he accomplished his Certificate of Candidacy. The only
ground for denial of a Certificate of Candidacy would be when there was material
In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue misrepresentation meant to mislead the electorate as to the qualifications of the candidate.
of a greencard, which entitles one to reside permanently in that country, constitutes There was none in this case, thus there is not enough reason to deny due course to the
abandonment of domicile in the Philippines. With more reason then does naturalization in a Certificate of Candidacy of Respondent James S. Ty.13
foreign country result in an abandonment of domicile in the Philippines.
Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the
Records showed that after taking an Oath of Allegiance before the Vice Consul of the instant Petition for Certiorari, relying on the following grounds:
Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine
passport on October 26, 2005; and secured a community tax certificate from the Municipality A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
elections on May 14, 2007.10 (Emphasis ours.) JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND
RESIDENCE.14
The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus,
reads: B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHEREFORE, premises considered, the petition is DENIED for lack of merit.11 WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF
CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED acted on this particular prayer of the COMELEC, and with the submission of the Memoranda
MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15 by Japzon, Ty, and the OSG, it already submitted the case for decision.

Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of The Court finds no merit in the Petition at bar.
origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern
Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls There is no dispute that Ty was a natural-born Filipino. He was born and raised in the
upon Ty to prove that he established a new domicile of choice in General Macarthur, Eastern Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in
Samar, a burden which he failed to discharge. Ty did not become a resident of General the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his
Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under Republic Act Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines
No. 9225. before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles,
California, USA, in accordance with the provisions of Republic Act No. 9225. 16 At this point,
Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that
running as a mayoralty candidate in the 14 May 2007 local elections. The one-year residency Ty renounced his American citizenship before a notary public and, resultantly, became a pure
requirement for those running for public office cannot be waived or liberally applied in favor of Philippine citizen again.
dual citizens. Consequently, Japzon believes he was the only remaining candidate for the
Office of Mayor of the Municipality of General Macarthur, Eastern Samar, and is the only It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born
placer in the 14 May 2007 local elections. Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign
citizenship, and provides for his rights and liabilities under such circumstances. A close
Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28 scrutiny of said statute would reveal that it does not at all touch on the matter of residence of
September 2007 of the COMELEC First Division and en banc, respectively; to issue a new the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes
resolution denying due course to or canceling Tys Certificate of Candidacy; and to declare no residency requirement for the reacquisition or retention of Philippine citizenship; nor does
Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar. it mention any effect of such reacquisition or retention of Philippine citizenship on the current
residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats
As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC citizenship independently of residence. This is only logical and consistent with the general
already found sufficient evidence to prove that Ty was a resident of the Municipality of intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the
General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The same time, both Philippine and foreign citizenships, he may establish residence either in the
Court cannot evaluate again the very same pieces of evidence without violating the well- Philippines or in the foreign country of which he is also a citizen.
entrenched rule that findings of fact of the COMELEC are binding on the Court. Ty disputes
Japzons assertion that the COMELEC committed grave abuse of discretion in rendering the Residency in the Philippines only becomes relevant when the natural-born Filipino with dual
assailed Resolutions, and avers that the said Resolutions were based on the evidence citizenship decides to run for public office.
presented by the parties and consistent with prevailing jurisprudence on the matter. Even
assuming that Ty, the winning candidate for the Office of Mayor of the Municipality of General Section 5(2) of Republic Act No. 9225 reads:
Macarthur, Eastern Samar, is indeed disqualified from running in the local elections, Japzon
as the second placer in the same elections cannot take his place. SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all
The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet attendant liabilities and responsibilities under existing laws of the Philippines and the
the one-year residency requirement set by law to qualify him to run as a mayoralty candidate following conditions:
in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove that he
intended to remain in the Philippines for good and ultimately make it his new domicile. xxxx
Nonetheless, the OSG still prays for the dismissal of the instant Petition considering that
Japzon, gathering only the second highest number of votes in the local elections, cannot be
declared the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar, (2) Those seeking elective public office in the Philippines shall meet the qualifications for
even if Ty is found to be disqualified from running for the said position. And since it took a holding such public office as required by the Constitution and existing laws and, at the time of
position adverse to that of the COMELEC, the OSG prays from this Court to allow the the filing of the certificate of candidacy, make a personal and sworn renunciation of any and
COMELEC to file its own Comment on Japzons Petition. The Court, however, no longer all foreign citizenship before any public officer authorized to administer an oath.
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or A domicile of origin is acquired by every person at birth. It is usually the place where the
retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he childs parents reside and continues until the same is abandoned by acquisition of new
must: (1) meet the qualifications for holding such public office as required by the Constitution domicile (domicile of choice). In Coquilla,19 the Court already acknowledged that for an
and existing laws; and (2) make a personal and sworn renunciation of any and all foreign individual to acquire American citizenship, he must establish residence in the USA. Since Ty
citizenships before any public officer authorized to administer an oath. himself admitted that he became a naturalized American citizen, then he must have
necessarily abandoned the Municipality of General Macarthur, Eastern Samar, Philippines,
That Ty complied with the second requirement is beyond question. On 19 March 2007, he as his domicile of origin; and transferred to the USA, as his domicile of choice.
personally executed a Renunciation of Foreign Citizenship before a notary public. By the time
he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of General As has already been previously discussed by this Court herein, Tys reacquisition of his
Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his
American citizenship, keeping solely his Philippine citizenship. residence/domicile. He could still retain his domicile in the USA, and he did not necessarily
regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty
The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications merely had the option to again establish his domicile in the Municipality of General
required by the Constitution and existing laws. Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The
length of his residence therein shall be determined from the time he made it his domicile of
choice, and it shall not retroact to the time of his birth.
Article X, Section 3 of the Constitution left it to Congress to enact a local government code
which shall provide, among other things, for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other How then could it be established that Ty indeed established a new domicile in the
matters relating to the organization and operation of the local units. Municipality of General Macarthur, Eastern Samar, Philippines?

Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the
Government Code of 1991, Section 39 of which lays down the following qualifications for different principles and concepts in jurisprudence relating to the residency qualification for
local elective officials: elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:

SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a Our decisions have applied certain tests and concepts in resolving the issue of whether or not
registered voter in the barangay, municipality, city or province or, in the case of a member of a candidate has complied with the residency requirement for elective positions. The principle
the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district of animus revertendi has been used to determine whether a candidate has an "intention to
where he intends to be elected; a resident therein for at least one (1) year immediately return" to the place where he seeks to be elected. Corollary to this is a determination whether
preceding the day of the election; and able to read and write Filipino or any other local there has been an "abandonment" of his former residence which signifies an intention to
language or dialect. depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of
the COMELEC and the Court of Appeals and annulled the election of the respondent as
Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the
xxxx
United States in 1984 constituted an abandonment of his domicile and residence in the
Philippines. Being a green card holder, which was proof that he was a permanent resident or
(c) Candidates for the position of mayor or vice mayor of independent component cities, immigrant of the United States, and in the absence of any waiver of his status as such before
component cities, or municipalities must be at least twenty-one (21) years of age on election he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of
day. the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

The challenge against Tys qualification to run as a candidate for the Office of Mayor of the In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet proclaimed the duly elected representative of the 2nd District of Northern Samar. The House
the one-year residency requirement in the said municipality. of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was
not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the
The term "residence" is to be understood not in its common acceptation as referring to ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus
"dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where revertendi or "intent to return," stating that his absence from his residence in order to pursue
a party actually or constructively has his permanent home, where he, no matter where he studies or practice his profession as a certified public accountant in Manila or his registration
may be found at any given time, eventually intends to return and remain (animus manendi)."18
as a voter other than in the place where he was elected did not constitute loss of residence. The COMELEC, taking into consideration the very same pieces of evidence presently before
The fact that respondent made periodical journeys to his home province in Laoag revealed this Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern
that he always had animus revertendi. Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual findings
of administrative agencies, such as the COMELEC, which have acquired expertise in their
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was field are binding and conclusive on the Court. An application for certiorari against actions of
explained that the determination of a persons legal residence or domicile largely depends the COMELEC is confined to instances of grave abuse of discretion amounting to patent and
upon the intention that may be inferred from his acts, activities, and utterances. In that case, substantial denial of due process, considering that the COMELEC is presumed to be most
petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local competent in matters falling within its domain.21
elections of February 1, 1988 and who had thus been proclaimed as the duly elected
governor, was disqualified by the COMELEC for lack of residence and registration The Court even went further to say that the rule that factual findings of administrative bodies
qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC will not be disturbed by courts of justice, except when there is absolutely no evidence or no
ruled that the attempt of petitioner Larrazabal to change her residence one year before the substantial evidence in support of such findings, should be applied with greater force when it
election by registering at Kananga, Leyte to qualify her to run for the position of governor of concerns the COMELEC, as the framers of the Constitution intended to place the
the province of Leyte was proof that she considered herself a resident of Ormoc City. This COMELECcreated and explicitly made independent by the Constitution itselfon a level
Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had higher than statutory administrative organs. The factual finding of the COMELEC en banc is
established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that therefore binding on the Court.22
she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no
evidence to show that she and her husband maintained separate residences, i.e., she at The findings of facts of quasi-judicial agencies which have acquired expertise in the specific
Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited matters entrusted to their jurisdiction are accorded by this Court not only respect but even
Kananga, Leyte through the years did not signify an intention to continue her residence after finality if they are supported by substantial evidence. Only substantial, not preponderance, of
leaving that place. evidence is necessary. Section 5, Rule 133 of the Rules of Court provides that in cases filed
before administrative or quasi-judicial bodies, a fact may be deemed established if it is
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are supported by substantial evidence, or that amount of relevant evidence which a reasonable
synonymous. The term "residence," as used in the election law, imports not only an intention mind might accept as adequate to justify a conclusion. 23
to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention. "Domicile" denotes a fixed permanent residence to which when The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First
absent for business or pleasure, or for like reasons, one intends to return. In that case, Division and en banc, respectively, were both supported by substantial evidence and are,
petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay thus, binding and conclusive upon this Court.
Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner,
because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United Tys intent to establish a new domicile of choice in the Municipality of General Macarthur,
States until favorable conditions had been established, was not voluntary so as to constitute
Eastern Samar, Philippines, became apparent when, immediately after reacquiring his
an abandonment of residence. The Court explained that in order to acquire a new domicile by
Philippine citizenship on 2 October 2005, he applied for a Philippine passport indicating in his
choice, there must concur (1) residence or bodily presence in the new locality, (2) an
application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion,
intention to remain there, and (3) an intention to abandon the old domicile. There must be
General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted
animus manendi coupled with animus non revertendi. The purpose to remain in or at the himself to the local tax jurisdiction of the Municipality of General Macarthur, Eastern Samar,
domicile of choice must be for an indefinite period of time; the change of residence must be by paying community tax and securing CTCs from the said municipality stating therein his
voluntary; and the residence at the place chosen for the new domicile must be actual.
address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar.
Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct 0013A,
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the Barangay 6, Poblacion, General Macarthur, Eastern Samar.
decisive factor in determining whether or not an individual has satisfied the residency
qualification requirement. In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern
Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior
As espoused by Ty, the issue of whether he complied with the one-year residency to the 14 May 2007 local elections. Japzon maintains that Tys trips abroad during said
requirement for running for public office is a question of fact. Its determination requires the period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October
Court to review, examine and evaluate or weigh the probative value of the evidence 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside in the
presented by the parties before the COMELEC.
Municipality of General Macarthur, Eastern Samar, Philippines. The COMELEC First Division
and en banc, as well as this Court, however, view these trips differently. The fact that Ty did
come back to the Municipality of General Macarthur, Eastern Samar, Philippines, after said
trips, is a further manifestation of his animus manendi and animus revertendi.

There is no basis for this Court to require Ty to stay in and never leave at all the Municipality
of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007
local elections so that he could be considered a resident thereof. To the contrary, the Court
has previously ruled that absence from residence to pursue studies or practice a profession
or registration as a voter other than in the place where one is elected, does not constitute
loss of residence.24 The Court also notes, that even with his trips to other countries, Ty was
actually present in the Municipality of General Macarthur, Eastern Samar, Philippines, for at
least nine of the 12 months preceding the 14 May 2007 local elections. Even if length of
actual stay in a place is not necessarily determinative of the fact of residence therein, it does
strongly support and is only consistent with Tys avowed intent in the instant case to establish
residence/domicile in the Municipality of General Macarthur, Eastern Samar.

Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of
General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year
residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007
elections. In Aquino v. COMELEC,25 the Court did not find anything wrong in an individual
changing residences so he could run for an elective post, for as long as he is able to prove
with reasonable certainty that he has effected a change of residence for election law
purposes for the period required by law. As this Court already found in the present case, Ty
has proven by substantial evidence that he had established residence/domicile in the
Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to
the 14 May 2007 local elections, in which he ran as a candidate for the Office of the Mayor
and in which he garnered the most number of votes.

Finally, when the evidence of the alleged lack of residence qualification of a candidate for an
elective position is weak or inconclusive and it clearly appears that the purpose of the law
would not be thwarted by upholding the victors right to the office, the will of the electorate
should be respected. For the purpose of election laws is to give effect to, rather than
frustrate, the will of the voters.26 To successfully challenge Tys disqualification, Japzon must
clearly demonstrate that Tys ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so zealously protect and promote. In this
case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the
Municipality of General Macarthur, Eastern Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.
G.R. No. 162759 August 4, 2006 Faced with the prospect of not being able to vote in the May 2004 elections owing to the
COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, Nicolas-Lewis et al., 5 filed on April 1, 2004 this petition for certiorari and mandamus.
ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE,
TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC
CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD, Petitioners, filed a Comment, 6 therein praying for the denial of the petition. As may be expected,
vs. petitioners were not able to register let alone vote in said elections.
COMMISSION ON ELECTIONS, Respondent.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of
DECISION Comment), therein stating that "all qualified overseas Filipinos, including dual citizens who
care to exercise the right of suffrage, may do so" , observing, however, that the conclusion of
GARCIA, J.: the 2004 elections had rendered the petition moot and academic. 7

In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition
dual citizens, pray that they and others who retained or reacquired Philippine citizenship moot and academic, but insofar only as petitioners participation in such political exercise is
under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of concerned. The broader and transcendental issue tendered or subsumed in the petition, i.e.,
2003, be allowed to avail themselves of the mechanism provided under the Overseas the propriety of allowing "duals" to participate and vote as absentee voter in future elections,
Absentee Voting Act of 2003 1 (R.A. 9189) and that the Commission on Elections however, remains unresolved.
(COMELEC) accordingly be ordered to allow them to vote and register as absentee voters
under the aegis of R.A. 9189. Observing the petitioners and the COMELECs respective formulations of the issues, the
same may be reduced into the question of whether or not petitioners and others who might
The facts: have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may
vote as absentee voter under R.A. 9189.
Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225
which accords to such applicants the right of suffrage, among others. Long before the May The Court resolves the poser in the affirmative, and thereby accords merit to the petition.
2004 national and local elections, petitioners sought registration and certification as
"overseas absentee voter" only to be advised by the Philippine Embassy in the United States In esse, this case is all about suffrage. A quick look at the governing provisions on the right of
that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, suffrage is, therefore, indicated.
2003 2, they have yet no right to vote in such elections owing to their lack of the one-year
residence requirement prescribed by the Constitution. The same letter, however, urged the We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as
different Philippine posts abroad not to discontinue their campaign for voters registration, as follows:
the residence restriction adverted to would contextually affect merely certain individuals who
would likely be eligible to vote in future elections.
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
Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Philippines for at least one year and in the place wherein they propose to vote for at least six
Macalintal vs. COMELEC 3 on the residency requirement, the COMELEC wrote in response: months immediately preceding the election. xxx.

Although R.A. 9225 enjoys the presumption of constitutionality , it is the Commission's SEC 2. The Congress shall provide a system for absentee voting by qualified Filipinos
position that those who have availed of the law cannot exercise the right of suffrage given abroad.
under the OAVL for the reason that the OAVL was not enacted for them. Hence, as Filipinos
who have merely re-acquired their citizenship on 18 September 2003 at the earliest, and as In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general
law and jurisprudence now stand, they are considered regular voters who have to meet the eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to
requirements of residency, among others under Section 1, Article 5 of the Constitution. 4
devise a system wherein an absentee may vote, implying that a non-resident may, as an
exception to the residency prescription in the preceding section, be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in [The challenger] further argues that Section 1, Article V of the Constitution does not allow
its Section 4 who can vote under it and in the following section who cannot, as follows: provisional registration or a promise by a voter to perform a condition to be qualified to vote in
a political exercise; that the legislature should not be allowed to circumvent the requirement
Section 4. Coverage. All citizens of the Philippines abroad, who are not otherwise of the Constitution on the right of suffrage by providing a condition thereon which in effect
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He
president, vice-president, senators and party-list representatives. claims that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of the
Section 5. Disqualifications. The following shall be disqualified from voting under this Act: Constitution. 10 (Words in bracket added.)

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly
(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
on the strength of the following premises:
(b) Those who have expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country; 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
(c) Those who have [been] convicted in a final judgment by a court or tribunal of an residence in his country of origin. However, same Section allows an immigrant and
offense punishable by imprisonment of not less than one (1) year, including those who have permanent resident abroad to register as voter for as long as he/she executes an affidavit to
been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, 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
(d) An immigrant or a permanent resident who is recognized as such in the host country, establish a system for absentee voting; for otherwise, if actual, physical residence in the
unless he/she executes, upon registration, an affidavit prepared for the purpose by the Philippines is required, there is no sense for the framers of the Constitution to mandate
Commission declaring that he/she shall resume actual physical permanent residence in the Congress to establish a system for absentee voting.
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. Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling
Failure to return shall be the cause for the removal of the name of the immigrant or or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of
permanent resident from the National Registry of Absentee Voters and his/her permanent the immigrant or permanent resident to go back and resume residency in the Philippines, but
disqualification to vote in absentia. 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
(e) Any citizen of the Philippines abroad previously declared insane or incompetent by Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by
competent authority . (Words in bracket added.) a voter to perform a condition to be qualified to vote in a political exercise." 11

Notably, Section 5 lists those who cannot avail themselves of the absentee voting Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted
mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and R.A. 9225 the relevant portion of which reads:
permanent residents in another country opens an exception and qualifies the disqualification
rule. Section 5(d) would, however, face a constitutional challenge on the ground that, as SEC. 2. Declaration of Policy. It is hereby declared the policy of the State that all Philippine
narrated in Macalintal, it - citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.
violates Section 1, Article V of the 1987 Constitution which requires that the voter must be
a resident in the Philippines for at least one year and in the place where he proposes to vote SEC. 3. Retention of Philippine Citizenship. Any provision of law to the contrary
for at least six months immediately preceding an election. [The challenger] cites Caasi vs. notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
Court of Appeals 9 to support his claim [where] the Court held that a "green card" holder citizenship by reason of their naturalization as citizens of a foreign country are hereby
immigrant to the [US] is deemed to have abandoned his domicile and residence in the deemed to have re-acquired Philippine citizenship upon taking the following oath of
Philippines. allegiance to the Republic:
xxx xxx xxx aforecited provision of the Constitution, which, to repeat, requires residency in the Philippines
for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of rights, 12 COMELEC argues:
a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
4. DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE
SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or PHILIPPINES
adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship
upon effectivity of this Act shall be deemed citizens of the Philippines. 4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The
duals, upon renouncement of their Filipino citizenship and acquisition of foreign citizenship,
SEC. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine have practically and legally abandoned their domicile and severed their legal ties to the
citizenship under this Act shall enjoy full civil and political rights and be subject to all homeland as a consequence. Having subsequently acquired a second citizenship (i.e.,
attendant liabilities and responsibilities under existing laws of the Philippines and the Filipino) then, duals must, for purposes of voting, first of all, decisively and definitely
following conditions: establish their domicile through positive acts; 13

(1) Those intending to exercise their right of suffrage must meet the requirements under The Court disagrees.
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws; As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring
"duals" to actually establish residence and physically stay in the Philippines first before they
(2) Those seeking elective public office in the Philippines shall meet the qualifications for can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that
holding such public office as required by the Constitution and existing laws and, at the time of "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage
the filing of the certificate of candidacy, make a personal and sworn renunciation of any and as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A.
all foreign citizenship ; 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save
for the residency requirements exacted of an ordinary voter under ordinary conditions, are
qualified to vote. Thus, wrote the Court in Macalintal:
3) xxx xxx xxx.

It is clear from these discussions of the Constitutional Commission that [it] intended to
(4) xxx xxx xxx;
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
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot voting age abroad whose parents domicile of origin is in the Philippines, and consider them
be exercised by, or extended to, those who: qualified as voters for the first time.

(a) are candidates for or are occupying any public office in the country of which they are It is in pursuance of that intention that the Commission provided for Section 2 [Article V]
naturalized citizens; and/or immediately after the residency requirement of Section 1. By the doctrine of necessary
implication in statutory construction, , the strategic location of Section 2 indicates that the
(b) are in active service as commissioned or non-commissioned officers in the armed forces Constitutional Commission provided for an exception to the actual residency requirement of
of the country which they are naturalized citizens. 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
After what appears to be a successful application for recognition of Philippine citizenship though they do not satisfy the residency requirement in Section 1, Article V of the
under R.A. 9189, petitioners now invoke their right to enjoy political rights, specifically the Constitution.
right of suffrage, pursuant to Section 5 thereof.
That Section 2 of Article V of the Constitution is an exception to the residency requirement
Opposing the petitioners bid, however, respondent COMELEC invites attention to the same found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
Section 5 (1) providing that "duals" can enjoy their right to vote, as an adjunct to political 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
rights, only if they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189
and other existing laws. Capitalizing on what at first blush is the clashing provisions of the
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional I live in Makati. My neighbor is Pateros . We are separated only by a creek. But one who
provisions. I think the sponsor and I would agree that the Constitution is supreme in any votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is
statute that we may enact. how restrictive our Constitution is. .

Let me read Section 1, Article V, of 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
xxx xxx xxx vote.

Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They xxx xxx xxx
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 Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-
alter the original text of the bill will have any effect on this? 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
Senator Angara. Good question, Mr. President. And this has been asked in various fora. This demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to
is in compliance with the Constitution. One, the interpretation here of "residence" is the six-month/one-year residency requirement. That is the first principle, Mr. President, that
synonymous with "domicile." one must remember.

As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's home. The second reason, Mr. President, is that under our jurisprudence "residency" has been
And the fact that a Filipino may have been physically absent from the Philippines and may be interpreted as synonymous with "domicile."
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. But the third more practical reason, is, if we follow the interpretation of the gentleman, then
it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos
This is consistent, Mr. President, with the constitutional mandate that we that Congress who do not physically live in the country, which is quite ridiculous because that is exactly the
must provide a franchise to overseas Filipinos. whole point of this exercise to enfranchise them and empower them to vote. 14 (Emphasis
and words in bracket added; citations omitted)
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, Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention
Mr. President. and Re-Acquisition Act expanded the coverage of overseas absentee voting. According to
the poll body:
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 1.05 With the passage of RA 9225 the scope of overseas absentee voting has been
well as a system for absentee voting by qualified Filipinos abroad." consequently expanded so as to include Filipinos who are also citizens of other countries,
subject, however, to the strict prerequisites indicated in the pertinent provisions of RA
9225; 15
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 Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the
qualification. scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may
now exercise the right of suffrage thru the absentee voting scheme and as overseas
absentee voters. R.A. 9189 defines the terms adverted to in the following wise:
xxx xxx xxx

Look at what the Constitution says "In the place wherein they propose to vote for at least "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad
exercise their right to vote;
six months immediately preceding the election."

Mr. President, all of us here have run (sic) for office.


"Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register
and vote under this Act, not otherwise disqualified by law, who is abroad on the day of
elections;

While perhaps not determinative of the issue tendered herein, we note that the expanded
thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This
may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225
which reads:

SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or


adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship
upon effectivity of this Act shall be deemed citizens of the Philippines.

It is very likely that a considerable number of those unmarried children below eighteen (18)
years of age had never set foot in the Philippines. Now then, if the next generation of "duals"
may nonetheless avail themselves the right to enjoy full civil and political rights under Section
5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present
day "duals," provided they meet the requirements under Section 1, Article V of the
Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee
voter. Congress could not have plausibly intended such absurd situation.

WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds
that those who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the
Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under
the system of absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act
of 2003.

SO ORDERED.
G.R. No. 160869 May 11, 2007 allegiance thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion."
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL
TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR GUMANGAN Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of
CALILUNG, Petitioner, a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity as the Secretary of SEC. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or
Justice, Respondent. adopted, below eighteen (18) years of age, of those who reacquire Philippine citizenship
upon effectivity of this Act shall be deemed citizens of the Philippines.
DECISION
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine
QUISUMBING, J.: citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the
This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of Civil following conditions:
Procedure.
(1) Those intending to exercise their right of suffrage must meet the requirements
Petitioner filed the instant petition against respondent, then Secretary of Justice Simeon under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
Datumanong, the official tasked to implement laws governing citizenship.1 Petitioner prays known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
that a writ of prohibition be issued to stop respondent from implementing Republic Act No.
9225, entitled "An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign (2) Those seeking elective public office in the Philippines shall meet the qualifications
Citizenship Permanent, Amending for the Purpose Commonwealth Act No. 63, As Amended, for holding such public office as required by the Constitution and existing laws and, at
and for Other Purposes." Petitioner avers that Rep. Act No. 9225 is unconstitutional as it the time of the filing of the certificate of candidacy, make a personal and sworn
violates Section 5, Article IV of the 1987 Constitution that states, "Dual allegiance of citizens renunciation of any and all foreign citizenship before any public officer authorized to
is inimical to the national interest and shall be dealt with by law." administer an oath;

Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29, 2003, reads: (3) Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
SECTION 1. Short Title.-This Act shall be known as the "Citizenship Retention and to their assumption of office: Provided, That they renounce their oath of allegiance to
Reacquisition Act of 2003." the country where they took that oath;

SEC. 2. Declaration of Policy.-It is hereby declared the policy of the State that all Philippine (4) Those intending to practice their profession in the Philippines shall apply with the
citizens who become citizens of another country shall be deemed not to have lost their proper authority for a license or permit to engage in such practice; and
Philippine citizenship under the conditions of this Act.
(5) That right to vote or be elected or appointed to any public office in the Philippines
SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the contrary cannot be exercised by, or extended to, those who:
notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby (a) are candidates for or are occupying any public office in the country of which they
deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance are naturalized citizens; and/or
to the Republic:
(b) are in the active service as commissioned or noncommissioned officers in the
"I ___________________________, solemnly swear (or affirm) that I will support and defend armed forces of the country which they are naturalized citizens.
the Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I SEC. 6. Separability Clause. - If any section or provision of this Act is held unconstitutional or
recognize and accept the supreme authority of the Philippines and will maintain true faith and invalid, any other section or provision not affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations inconsistent with Rep. Locsin underscored that the measure does not seek to address the constitutional
the provisions of this Act are hereby repealed or modified accordingly. injunction on dual allegiance as inimical to public interest. He said that the proposed law aims
to facilitate the reacquisition of Philippine citizenship by speedy means. However, he said that
SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its in one sense, it addresses the problem of dual citizenship by requiring the taking of an oath.
publication in the Official Gazette or two (2) newspapers of general circulation. He explained that the problem of dual citizenship is transferred from the Philippines to the
foreign country because the latest oath that will be taken by the former Filipino is one of
allegiance to the Philippines and not to the United States, as the case may be. He added that
In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act No. 9225
unconstitutional? (2) Does this Court have jurisdiction to pass upon the issue of dual this is a matter which the Philippine government will have no concern and competence over.
allegiance?
Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance
is involved.
We shall discuss these issues jointly.

Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He avers that Rep. Locsin clarified that this was precisely his objection to the original version of the bill,
which did not require an oath of allegiance. Since the measure now requires this oath, the
Sections 2 and 3 of Rep. Act No. 9225, together, allow dual allegiance and not dual
problem of dual allegiance is transferred from the Philippines to the foreign country
citizenship. Petitioner maintains that Section 2 allows all Filipinos, either natural-born or
concerned, he explained.
naturalized, who become foreign citizens, to retain their Philippine citizenship without losing
their foreign citizenship. Section 3 permits dual allegiance because said law allows natural-
born citizens of the Philippines to regain their Philippine citizenship by simply taking an oath xxxx
of allegiance without forfeiting their foreign allegiance.2 The Constitution, however, is
categorical that dual allegiance is inimical to the national interest. Rep. Dilangalen asked whether in the particular case, the person did not denounce his
foreign citizenship and therefore still owes allegiance to the foreign government, and at the
The Office of the Solicitor General (OSG) claims that Section 2 merely declares as a state same time, owes his allegiance to the Philippine government, such that there is now a case
policy that "Philippine citizens who become citizens of another country shall be deemed not to of dual citizenship and dual allegiance.
have lost their Philippine citizenship." The OSG further claims that the oath in Section 3 does
not allow dual allegiance since the oath taken by the former Filipino citizen is an effective Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person
renunciation and repudiation of his foreign citizenship. The fact that the applicant taking the implicitly renounces his foreign citizenship. However, he said that this is not a matter that he
oath recognizes and accepts the supreme authority of the Philippines is an unmistakable and wishes to address in Congress because he is not a member of a foreign parliament but a
categorical affirmation of his undivided loyalty to the Republic.3 Member of the House.

In resolving the aforecited issues in this case, resort to the deliberations of Congress is xxxx
necessary to determine the intent of the legislative branch in drafting the assailed law. During
the deliberations, the issue of whether Rep. Act No. 9225 would allow dual allegiance had in Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to
fact been the subject of debate. The record of the legislative deliberations reveals the national interest should be dealt with by law. However, he said that the dual allegiance
following: problem is not addressed in the bill. He then cited the Declaration of Policy in the bill which
states that "It is hereby declared the policy of the State that all citizens who become citizens
xxxx of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act." He stressed that what the bill does is recognize Philippine citizenship
Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - - the but says nothing about the other citizenship.
retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he
observed that there are two citizenships and therefore, two allegiances. He pointed out that Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a
under the Constitution, dual allegiance is inimical to public interest. He thereafter asked natural-born citizen of the Philippines takes an oath of allegiance to another country and in
whether with the creation of dual allegiance by reason of retention of foreign citizenship and that oath says that he abjures and absolutely renounces all allegiance to his country of origin
the reacquisition of Philippine citizenship, there will now be a violation of the Constitution and swears allegiance to that foreign country. The original Bill had left it at this stage, he
explained. In the present measure, he clarified, a person is required to take an oath and the
last he utters is one of allegiance to the country. He then said that the problem of dual
allegiance is no longer the problem of the Philippines but of the other foreign tune with the fundamental law, we must proceed with judicial restraint and act with caution
country.4 (Emphasis supplied.) and forbearance.12 The doctrine of separation of powers demands no less. We cannot
arrogate the duty of setting the parameters of what constitutes dual allegiance when the
From the above excerpts of the legislative record, it is clear that the intent of the legislature in Constitution itself has clearly delegated the duty of determining what acts constitute dual
drafting Rep. Act No. 9225 is to do away with the provision in Commonwealth Act No. allegiance for study and legislation by Congress.
635 which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries. What Rep. Act No. 9225 does is allow dual citizenship WHEREFORE, the petition is hereby DISMISSED for lack of merit.
to natural-born Filipino citizens who have lost Philippine citizenship by reason of their
naturalization as citizens of a foreign country. On its face, it does not recognize dual SO ORDERED.
allegiance. By swearing to the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out
of the problem of dual allegiance and shifted the burden of confronting the issue of whether
or not there is dual allegiance to the concerned foreign country. What happens to the other
citizenship was not made a concern of Rep. Act No. 9225.

Petitioner likewise advances the proposition that although Congress has not yet passed any
law on the matter of dual allegiance, such absence of a law should not be justification why
this Court could not rule on the issue. He further contends that while it is true that there is no
enabling law yet on dual allegiance, the Supreme Court, through Mercado v.
Manzano,6 already had drawn up the guidelines on how to distinguish dual allegiance from
dual citizenship.7

For its part, the OSG counters that pursuant to Section 5, Article IV of the 1987 Constitution,
dual allegiance shall be dealt with by law. Thus, until a law on dual allegiance is enacted by
Congress, the Supreme Court is without any jurisdiction to entertain issues regarding dual
allegiance.8

To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not
a self-executing provision. The legislature still has to enact the law on dual allegiance. In
Sections 2 and 3 of Rep. Act No. 9225, the framers were not concerned with dual citizenship
per se, but with the status of naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization.9 Congress was given a mandate to draft a
law that would set specific parameters of what really constitutes dual allegiance.10 Until this is
done, it would be premature for the judicial department, including this Court, to rule on issues
pertaining to dual allegiance.

Neither can we subscribe to the proposition of petitioner that a law is not needed since the
case of Mercado had already set the guidelines for determining dual allegiance. Petitioner
misreads Mercado. That case did not set the parameters of what constitutes dual allegiance
but merely made a distinction between dual allegiance and dual citizenship.

Moreover, in Estrada v. Sandiganbayan,11 we said that the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws
with full knowledge of the facts and for the purpose of promoting what is right and advancing
the welfare of the majority. Hence, in determining whether the acts of the legislature are in

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