G.R. No.

L-16439 July 20, 1961

ANTONIO GELUZ, petitioner, vs.THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured
her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita
Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence
adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to
pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a
special division of five, sustained the award by a majority vote of three justices as against two, who rendered a
separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt
Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married.
Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself
aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then
employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On
February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again
repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the
defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of
fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his
election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon
application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions
of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said
article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus
that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria
de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de
Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it
is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the
injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of
action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no
transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished
from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato
habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by
imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition
specified in the following article". In the present case, there is no dispute that the child was dead when separated from
its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the
death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep.
242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those
inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life
and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they
would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that
was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental
expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award
of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by
the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and
affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that
the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet
despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes
thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the
appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only
concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for
P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record,
was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which
his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary;
and that his primary concern would be to see to it that the medical profession was purged of an unworthy
member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either
the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil
action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to
warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of
the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an
award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their
information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of
Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of
them having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the
Court of Appeals, whose decision, modifying that the Court of First Instance, in turn was elevated to the Supreme
Court for review.

The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr.,
his wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in
February 1945. The trial court found the deaths of this persons to have accurred in this order: 1st. The Navarro girls,
named Pilar, Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin
Navarro, Sr. The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro
and Joaquin Navarro, Jr., the latter was declared to have survived his mother.
It is this modification of the lower court's finding which is now being contested by the petitioner. The importance of the
question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it
radically affects the rights of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural
child of Angela Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of
Joaquin Navarro, Sr. by first marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and
Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro,
Jr., and the latter's wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club,
at the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with
refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting
at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell of
the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a safer
heaven. They could not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son,
Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed
out of the burning edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and
immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later,
the German Club, already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin.

"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby,
the stayed there about three days, until February 10, 1915, when they were forced to leave the shelter be- cause the
shelling tore it open. They flied toward the St. Theresa Academy in San Marcelino Street, but unfortunately met
Japanese Patrols, who fired at the refugees, killing Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old;
Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her brother; while the other sisters,
Concepcion and Natividad Navarro y Joaquin, were between 23 and 25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who miraculously survived the
holocaust, and upon them the Court of Appeals opined that, "as between the mother Angela Joaquin and the son
Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and insufficient" and the statutory presumption must
be applied. The appellate Court's reasoning for its conclusion is thus stated:

"It does not require argument to show that survivorship cannot be established by proof of the death of only one of the
parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case
before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly
after the living the German Club in the company of his father and the witness, and that the burning edified entirely
collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from
which we may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant his
son turned his back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela
Joaquin was unhurt when her son left her to escape from the German Club; but she could have died almost
immediately after, from a variety of causes. She might have been shot by the Japanese, like her daughters, killed by
falling beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells.
We cannot say for certain. No evidence is available on the point. All we can decide is that no one saw her alive after
her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone cannot support a
finding that she died latter than her son, and we are thus compelled to fall back upon the statutory presumption. In
deed, it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to
uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother,
Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her
deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the
occasion of the deaths, which is identical for all of them; that battle for the liberation of Manila. A second reason is
that the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity,
could not overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. During
the same battle, some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards
episodic details, and treats the battle as an overall cause of death in applying the presumption of survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family met their end is
as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son
Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now section 69 (ii) of Rule
123 of the Rules of Court, has repealed article 33 of the civil code of 1889, now article 43 of the New Civil Code. It is
the contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the
Court of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at
the same time.

The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for
arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be
presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and it is not (1) shown
who died first, and there are no (2) particular circumstances from when it can be inferred, the survivorship is
presumed from the probabilities resulting from the strength and ages of the sexes, according to the following
rules:

xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one
from the other, the persons who alleges the prior death of either must prove the allegation; in the absence of
proof the presumption shall be that they died at the same time, and no transmission of rights from one to the
other shall take place.

Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are not to be available
when there are facts. With particular reference to section 69 (ii) of Rule 123, "the situation which it present is one in
which the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of
death . . . ." . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable,
the law may apply the law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence,
1940 ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect to the deaths of
the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec. 1936 of the California Code of
Civil Procedure," the Supreme Court of California said:

When the statue speaks of "particular circumstances from which it can be inferred" that one died before the
other it means that there are circumstances from which the fact of death by one before the other may be
inferred as a relation conclusion from the facts proven. The statue does not mean circumstances which
would shown, or which would tend to show, probably that one died before the other. Grand Lodge A.O.W.W.
vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to prove a
survivorship contrary to the statutory presumption, the circumstances by which it is sought to prove the
survivorship must be such as are competent and sufficient when tested by the general rules of evidence in
civil cases. The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was
said in Grand Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of the presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence
of the survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known
or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of
preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin
and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better
appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court
as "disinterested and trustworthy" and by the Court of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin Navarro, Sr.,
Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters away from the building
but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of
Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could not say exactly, Occasions
like that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible, but not
probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes after we have
dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar,
Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive
evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in the sense that I did not see her actually
die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that
building so I presumed she died there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin
Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to the Club and they were
shooting people outside, so we thought of running away rather than be roasted.

xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion,
and Natividad, were already wounded? — A. to my knowledge, yes.
 Q. They were wounded? — A. Yes, sir.

Q. Were they lying on the ground or not? — A. On the ground near the entrance, because most of the
people who were shot by the Japanese were those who were trying to escape, and as far as I can
remember they were among those killed.

xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? —
A. That is what I think, because those Japanese soldiers were shooting the people inside especially those
trying to escape.

xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A — . There were many people shot
because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain that? — A.
They were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship
between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed
that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that
Joaquin Navarro, Jr. died before his mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is
entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around.
Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club.
Still in the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that
interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started
to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard
to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities
that she did seem very remote. True, people in the building were also killed but these, according to Lopez, were mostly
refugees who had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin
Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving
the place and exposing themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a
condition of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly
tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends
credence to Mr. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro
the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The
Court of Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was
"minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela
Joaquin was sill alive when her son expired

The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could
have been killed. All these are speculative , and the probabilities, in the light of the known facts, are against them.
Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of
her family, she could not have kept away form protective walls. Besides, the building had been set on fire trap the
refugees inside, and there was no necessity for the Japanese to was their ammunition except upon those who tried
to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was
made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous
death; certainly not within the brief space of five seconds between her son's departure and his death.
It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123 does not require
that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances
from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In
speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but if may be plain enough
to justify a finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y.
199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that
"the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when
tested by the general rules of evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must often reason," says
one author, "according to probabilities, drawing an inference that the main fact in issue existed from collateral facts
not directly proving, but strongly tending to prove, its existence. The vital question in such cases is the cogency of the
proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain
secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified
in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the
person who fired a shot about an hour before at the same animal also trespassing." That conclusion was not airtight,
but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of
the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises,
speculations, or conjectures without any sure foundation in the evidence. the opposite theory — that the mother
outlived her son — is deduced from established facts which, weighed by common experience, engender the inference
as a very strong probability. Gauged by the doctrine of preponderance of evidence by, which civil cases are decided,
this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering
on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired
was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on Facts, 63,
citing Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed,
involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular
circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed,
and this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact,
which the Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court,
3rd Ed. 856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness
does not cease to be such because he is not impeached or contradicted. But when the evidence is purely
documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon,
or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the
issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the
Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of
law.

The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by
substantial evidence. By substantial evidence is meant real evidence or at least evidence about which reasonable
men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception
to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the decedents' estates
should be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon
the question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. Joaquin Navarro's death
preceded that of her son. Without costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

G.R. No. 104269 November 11, 1993

DEPARTMENT OF AGRICULTURE, petitioner, vs. THE NATIONAL LABOR RELATIONS COMMISSION, et al.,
respondents.
VITUG, J.:

For consideration are the incidents that flow from the familiar doctrine of non-suability of the state.

In this petition for certiorari, the Department of Agriculture seeks to nullify the Resolution, 1 dated 27 November
1991, of the National Labor Relations Commission (NLRC), Fifth Division, Cagayan de Oro City, denying the petition
for injunction, prohibition and mandamus that prays to enjoin permanently the NLRC's Regional Arbitration Branch X
and Cagayan de Oro City Sheriff from enforcing the decision 2 of 31 May 1991 of the Executive Labor Arbiter and
from attaching and executing on petitioner's property.

The Department of Agriculture (herein petitioner) and Sultan Security Agency entered into a contract3 on 01 April
1989 for security services to be provided by the latter to the said governmental entity. Save for the increase in the
monthly rate of the guards, the same terms and conditions were also made to apply to another contract, dated 01
May 1990, between the same parties. Pursuant to their arrangements, guards were deployed by Sultan Agency in
the various premises of the petitioner.

On 13 September 1990, several guards of the Sultan Security Agency filed a complaint for underpayment of wages,
non-payment of 13th month pay, uniform allowances, night shift differential pay, holiday pay and overtime pay, as
well as for damages,4 before the Regional Arbitration Branch X of Cagayan de Oro City, docketed as NLRC Case
No. 10-09-00455-90 (or 10-10-00519-90, its original docket number), against the Department of Agriculture and
Sultan Security Agency.

The Executive Labor Arbiter rendered a decision on 31 May finding herein petitioner and jointly and severally liable
with Sultan Security Agency for the payment of money claims, aggregating P266,483.91, of the complainant security
guards. The petitioner and Sultan Security Agency did not appeal the decision of the Labor Arbiter. Thus, the
decision became final and executory.

On 18 July 1991, the Labor Arbiter issued a writ of execution. 5 commanding the City Sheriff to enforce and execute
the judgment against the property of the two respondents. Forthwith, or on 19 July 1991, the City Sheriff levied on
execution the motor vehicles of the petitioner, i.e. one (1) unit Toyota Hi-Ace, one (1) unit Toyota Mini Cruiser, and
one (1) unit Toyota Crown.6 These units were put under the custody of Zacharias Roa, the property custodian of the
petitioner, pending their sale at public auction or the final settlement of the case, whichever would come first.

A petition for injunction, prohibition and mandamus, with prayer for preliminary writ of injunction was filed by the
petitioner with the National Labor Relations Commission (NLRC), Cagayan de Oro, alleging, inter alia, that the writ
issued was effected without the Labor Arbiter having duly acquired jurisdiction over the petitioner, and that,
therefore, the decision of the Labor Arbiter was null and void and all actions pursuant thereto should be deemed
equally invalid and of no legal, effect. The petitioner also pointed out that the attachment or seizure of its property
would hamper and jeopardize petitioner's governmental functions to the prejudice of the public good.

On 27 November 1991, the NLRC promulgated its assailed resolution; viz:

WHEREFORE, premises considered, the following orders are issued:

1. The enforcement and execution of the judgments against petitioner in NLRC RABX Cases Nos.
10-10-00455-90; 10-10-0481-90 and 10-10-00519-90 are temporarily suspended for a period of two
(2) months, more or less, but not extending beyond the last quarter of calendar year 1991 to enable
petitioner to source and raise funds to satisfy the judgment awards against it;

2. Meantime, petitioner is ordered and directed to source for funds within the period above-stated
and to deposit the sums of money equivalent to the aggregate amount. it has been adjudged to pay
jointly and severally with respondent Sultan Security Agency with the Regional Arbitration Branch X,
Cagayan de Oro City within the same period for proper dispositions;

3. In order to ensure compliance with this order, petitioner is likewise directed to put up and post
sufficient surety and supersedeas bond equivalent to at least to fifty (50%) percent of the total
monetary award issued by a reputable bonding company duly accredited by the Supreme Court or
 by the Regional Trial Court of Misamis Oriental to answer for the satisfaction of the money claims in
case of failure or default on the part of petitioner to satisfy the money claims;

4. The City Sheriff is ordered to immediately release the properties of petitioner levied on execution
within ten (10) days from notice of the posting of sufficient surety or supersedeas bond as specified
above. In the meanwhile, petitioner is assessed to pay the costs and/or expenses incurred by the
City Sheriff, if any, in connection with the execution of the judgments in the above-stated cases upon
presentation of the appropriate claims or vouchers and receipts by the city Sheriff, subject to the
conditions specified in the NLRC Sheriff, subject to the conditions specified in the NLRC Manual of
Instructions for Sheriffs;

5. The right of any of the judgment debtors to claim reimbursement against each other for any
payments made in connection with the satisfaction of the judgments herein is hereby recognized
pursuant to the ruling in the Eagle Security case, (supra). In case of dispute between the judgment
debtors, the Executive Labor Arbiter of the Branch of origin may upon proper petition by any of the
parties conduct arbitration proceedings for the purpose and thereby render his decision after due
notice and hearings;

7. Finally, the petition for injunction is Dismissed for lack of basis. The writ of preliminary injunction
previously issued is Lifted and Set Aside and in lieu thereof, a Temporary Stay of Execution is
issued for a period of two (2) months but not extending beyond the last quarter of calendar year
1991, conditioned upon the posting of a surety or supersedeas bond by petitioner within ten (10)
days from notice pursuant to paragraph 3 of this disposition. The motion to admit the complaint in
intervention is Denied for lack of merit while the motion to dismiss the petition filed by Duty Sheriff is
Noted

SO ORDERED.

In this petition for certiorari, the petitioner charges the NLRC with grave abuse of discretion for refusing to quash the
writ of execution. The petitioner faults the NLRC for assuming jurisdiction over a money claim against the
Department, which, it claims, falls under the exclusive jurisdiction of the Commission on Audit. More importantly, the
petitioner asserts, the NLRC has disregarded the cardinal rule on the non-suability of the State.

The private respondents, on the other hand, argue that the petitioner has impliedly waived its immunity from suit by
concluding a service contract with Sultan Security Agency.

The basic postulate enshrined in the constitution that "(t)he State may not be sued without its consent," 7 reflects
nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten
rule effectively insulating it from the jurisdiction of courts. 8 It is based on the very essence of sovereignty. As has
been aptly observed, by Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that
makes the law on which the right depends. 9 True, the doctrine, not too infrequently, is derisively called "the royal
prerogative of dishonesty" because it grants the state the prerogative to defeat any legitimate claim against it by
simply invoking its non-suability. 10 We have had occasion, to explain in its defense, however, that a continued
adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that
may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial
remedy is not to be accordingly restricted. 11

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any
circumstances. On the contrary, as correctly phrased, the doctrine only conveys, "the state may not be sued without
its consent;" its clear import then is that the State may at times be sued. 12 The States' consent may be given
expressly or impliedly. Express consent may be made through a general law13 or a special law. 14 In this jurisdiction,
the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine
government "consents and submits to be sued upon any money claims involving liability arising from contract,
express or implied, which could serve as a basis of civil action between private parties." 15 Implied consent, on the
other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim16 or when it
enters into a contract. 17 In this situation, the government is deemed to have descended to the level of the other
contracting party and to have divested itself of its sovereign immunity. This rule, relied upon by the NLRC and the
private respondents, is not, however, without qualification. Not all contracts entered into by the government operate
as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its
sovereign function and another which is done in its proprietary capacity. 18

In the Unites States of America vs. Ruiz, 19 where the questioned transaction dealt with improvements on the
wharves in the naval installation at Subic Bay, we held:

The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of International Law are not petrified; they
are constantly developing and evolving. And because the activities of states have multiplied, it has
been necessary to distinguish them — between sovereign and governmental acts ( jure imperii) and
private, commercial and proprietary act ( jure gestionisis). The result is that State immunity now
extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the
United States, the United Kingdom and other states in Western Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.
Stated differently, a state may be said to have descended to the level of an individual and can this
be deemed to have actually given its consent to be sued only when it enters into business contracts.
It does not apply where the contracts relates to the exercise of its sovereign functions. In this case
the projects are an integral part of the naval base which is devoted to the defense of both the United
States and the Philippines, indisputably a function of the government of the highest order; they are
not utilized for not dedicated to commercial or business purposes.

In the instant case, the Department of Agriculture has not pretended to have assumed a capacity apart from its
being a governmental entity when it entered into the questioned contract; nor that it could have, in fact, performed
any act proprietary in character.

But, be that as it may, the claims of private respondents, i.e. for underpayment of wages, holiday pay, overtime pay
and similar other items, arising from the Contract for Service, clearly constitute money claims. Act No. 3083,
aforecited, gives the consent of the State to be "sued upon any moneyed claim involving liability arising from
contract, express or implied, . . . Pursuant, however, to Commonwealth Act ("C.A.") No. 327, as amended by
Presidential Decree ("P.D.") No. 1145, the money claim first be brought to the Commission on Audit. Thus, in
Carabao, Inc., vs. Agricultural Productivity Commission, 20 we ruled:

(C)laimants have to prosecute their money claims against the Government under Commonwealth
Act 327, stating that Act 3083 stands now merely as the general law waiving the State's immunity
from suit, subject to the general limitation expressed in Section 7 thereof that "no execution shall
issue upon any judgment rendered by any Court against the Government of the (Philippines), and
that the conditions provided in Commonwealth Act 327 for filing money claims against the
Government must be strictly observed."

We fail to see any substantial conflict or inconsistency between the provisions of C.A. No. 327 and the Labor Code
with respect to money claims against the State. The Labor code, in relation to Act No. 3083, provides the legal basis
for the State liability but the prosecution, enforcement or satisfaction thereof must still be pursued in accordance
with the rules and procedures laid down in C.A. No. 327, as amended by P.D. 1445.

When the state gives its consent to be sued, it does thereby necessarily consent to unrestrained execution against
it. tersely put, when the State waives its immunity, all it does, in effect, is to give the other party an opportunity to
prove, if it can, that the State has a liability. 21 In Republic vs. Villasor 22 this Court, in nullifying the issuance of an
alias writ of execution directed against the funds of the Armed Forces of the Philippines to satisfy a final and
executory judgment, has explained, thus —
 The universal rule that where the State gives its consent to be sued by private parties either by
general or special law, it may limit the claimant's action "only up to the completion of proceedings
anterior to the stage of execution" and that the power of the Courts ends when the judgment is
rendered, since government funds and properties may not be seized under writs or execution or
garnishment to satisfy such judgments, is based on obvious considerations of public policy.
Disbursements of public funds must be covered by the correspondent appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated
by law.23

WHEREFORE, the petition is GRANTED. The resolution, dated 27 November 1991, is hereby REVERSED and SET
ASIDE. The writ of execution directed against the property of the Department of Agriculture is nullified, and the
public respondents are hereby enjoined permanently from doing, issuing and implementing any and all writs of
execution issued pursuant to the decision rendered by the Labor Arbiter against said petitioner.

SO ORDERED.

G.R. No. 84607 March 19, 1993

REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN. ALFREDO LIM, GEN. ALEXANDER
AGUIRRE, COL. EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT.
NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO PAREDES, COL. ROGELIO MONFORTE, PFC
ANTONIO LUCERO, PAT. JOSE MENDIOLA, PAT. NELSON TUASON, POLICE CORPORAL PANFILO
ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT)
NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT
BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA CRUZ, JR.,
MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM (MDT), LT. ROMEO
PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO NAVAL,
JOHN DOE, RICHARD DOE, ROBERTO DOE AND OTHER DOES, petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch IX, ERLINDA C. CAYLAO,
ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA
GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO
CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their
capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA,
DANTE EVANGELIO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO)
respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA,
NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN
CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG, SOLOMON MANALOTO, ROMEO
DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO,
BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS,
TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA,
JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL,
ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA
ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO,
RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO
GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY
SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO,
ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, and ROSELLA ROBALE, respondents.

G.R. No. 84645 March 19, 1993

ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA
GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA
ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO
DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ,
DIONESIO GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL, LEOPOLDO
ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively;
and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON
BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO,
JOY CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO
TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA
CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS,
ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER,
RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO
TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA
ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA,
ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO
GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS,
EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO
MEDINA, LITO NOVENARIO, ROSELLA ROBALE, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G. SANDOVAL, Regional Trial Court of
Manila, Branch 9, respondents.

The Solicitor General for the Republic of the Philippines.

Structural Alternative Legal Assistance for Grassroots for petitioners in 84645 & private respondents in
84607.

CAMPOS, JR., J.:

People may have already forgotten the tragedy that transpired on January 22, 1987. It is quite ironic that
then, some journalists called it a Black Thursday, as a grim reminder to the nation of the misfortune that
befell twelve (12) rallyists. But for most Filipinos now, the Mendiola massacre may now just as well be a
chapter in our history books. For those however, who have become widows and orphans, certainly they
would not settle for just that. They seek retribution for the lives taken that will never be brought back to life
again.

Hence, the heirs of the deceased, together with those injured (Caylao group), instituted this petition,
docketed as G.R. No. 84645, under Section 1 of Rule 65 of the Rules of Court, seeking the reversal and
setting aside of the Orders of respondent Judge Sandoval,1 dated May 31 and August 8, 1988, dismissing the
complaint for damages of herein petitioners against the Republic of the Philippines in Civil Case No. 88-43351.

Petitioner, the Republic of the Philippines, through a similar remedy, docketed as G.R. No. 84607, seeks to set
aside the Order of respondent Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda Caylao, et al.
vs. Republic of the Philippines, et al."

The pertinent portion of the questioned Order2 dated May 31, 1988, reads as follows:

With respect however to the other defendants, the impleaded Military Officers, since they are being
charged in their personal and official capacity, and holding them liable, if at all, would not result in
financial responsibility of the government, the principle of immunity from suit can not conveniently
and correspondingly be applied to them.

WHEREFORE, the case as against the defendant Republic of the Philippines is hereby dismissed.
As against the rest of the defendants the motion to dismiss is denied. They are given a period of ten
(10) days from receipt of this order within which to file their respective pleadings.

On the other hand, the Order3 , dated August 8, 1988, denied the motions filed by both parties, for a reconsideration
of the abovecited Order, respondent Judge finding no cogent reason to disturb the said order.
The massacre was the culmination of eight days and seven nights of encampment by members of the militant
Kilusang Magbubukid sa Pilipinas (KMP) at the then Ministry (now Department) of Agrarian Reform (MAR) at the
Philippine Tobacco Administration Building along Elliptical Road in Diliman, Quezon City.

The farmers and their sympathizers presented their demands for what they called "genuine agrarian reform". The
KMP, led by its national president, Jaime Tadeo, presented their problems and demands, among which were: (a)
giving lands for free to farmers; (b) zero retention of lands by landlords; and (c) stop amortizations of land payments.

The dialogue between the farmers and the MAR officials began on January 15, 1987. The two days that followed
saw a marked increase in people at the encampment. It was only on January 19, 1987 that Jaime Tadeo arrived to
meet with then Minister Heherson Alvarez, only to be informed that the Minister can only meet with him the following
day. On January 20, 1987, the meeting was held at the MAR conference room. Tadeo demanded that the minimum
comprehensive land reform program be granted immediately. Minister Alvarez, for his part, can only promise to do
his best to bring the matter to the attention of then President Aquino, during the cabinet meeting on January 21,
1987.

Tension mounted the following day. The farmers, now on their seventh day of encampment, barricaded the MAR
premises and prevented the employees from going inside their offices. They hoisted the KMP flag together with the
Philippine flag.

At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo and his leaders, advised the latter to
instead wait for the ratification of the 1987 Constitution and just allow the government to implement its
comprehensive land reform program. Tadeo, however, countered by saying that he did not believe in the
Constitution and that a genuine land reform cannot be realized under a landlord-controlled Congress. A heated
discussion ensued between Tadeo and Minister Alvarez. This notwithstanding, Minister Alvarez suggested a
negotiating panel from each side to meet again the following day.

On January 22, 1987, Tadeo's group instead decided to march to Malacañang to air their demands. Before the
march started, Tadeo talked to the press and TV media. He uttered fiery words, the most telling of which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din niya ang barikada
sa Mendiola sapagkat bubutasin din namin iyon at dadanak ang dugo . . . ."4

The farmers then proceeded to march to Malacañang, from Quezon Memorial Circle, at 10:00 a.m. They were later
joined by members of other sectoral organizations such as the Kilusang Mayo Uno (KMU), Bagong Alyansang
Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod
(KPML).

At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held a brief program. It was at this point
that some of the marchers entered the eastern side of the Post Office Building, and removed the steel bars
surrounding the garden. Thereafter, they joined the march to Malacañang. At about 4:30 p.m., they reached C.M.
Recto Avenue.

In anticipation of a civil disturbance, and acting upon reports received by the Capital Regional Command
(CAPCOM) that the rallyists would proceed to Mendiola to break through the police lines and rush towards
Malacañang, CAPCOM Commander General Ramon E. Montaño inspected the preparations and adequacy of the
government forces to quell impending attacks.

OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the command of Col. Cesar Nazareno
was deployed at the vicinity of Malacañang. The civil disturbance control units of the Western Police District under
Police Brigadier General Alfredo S. Lim were also activated.

Intelligence reports were also received that the KMP was heavily infiltrated by CPP/NPA elements and that an
insurrection was impending. The threat seemed grave as there were also reports that San Beda College and Centro
Escolar University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically tasked to investigate the facts surrounding the
incident, Commission for short) stated that the government anti-riot forces were assembled at Mendiola in a
formation of three phalanges, in the following manner:

(1) The first line was composed of policemen from police stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the
Chinatown detachment of the Western Police District. Police Colonel Edgar Dula Torres, Deputy
Superintendent of the Western Police District, was designated as ground commander of the CDC
first line of defense. The WPD CDC elements were positioned at the intersection of Mendiola and
Legarda Streets after they were ordered to move forward from the top of Mendiola bridge. The WPD
forces were in khaki uniform and carried the standard CDC equipment — aluminum shields,
truncheons and gas masks.

(2) At the second line of defense about ten (10) yards behind the WPD policemen were the elements
of the Integrated National Police (INP) Field Force stationed at Fort Bonifacio from the 61st and
62nd INP Field Force, who carried also the standard CDC equipment — truncheons, shields and gas
masks. The INP Field Force was under the command of Police Major Demetrio dela Cruz.

(3) Forming the third line was the Marine Civil Disturbance Control Battalion composed of the first
and second companies of the Philippine Marines stationed at Fort Bonifacio. The marines were all
equipped with shields, truncheons and M-16 rifles (armalites) slung at their backs, under the
command of Major Felimon B. Gasmin. The Marine CDC Battalion was positioned in line formation
ten (10) yards farther behind the INP Field Force.

At the back of the marines were four (4) 6 x 6 army trucks, occupying the entire width of Mendiola
street, followed immediately by two water cannons, one on each side of the street and eight fire
trucks, four trucks on each side of the street. The eight fire trucks from Fire District I of Manila under
Fire Superintendent Mario C. Tanchanco, were to supply water to the two water cannons.

Stationed farther behind the CDC forces were the two Mobile Dispersal Teams (MDT) each
composed of two tear gas grenadiers, two spotters, an assistant grenadier, a driver and the team
leader.

In front of the College of the Holy Spirit near Gate 4 of Malacañang stood the VOLVO Mobile
Communications Van of the Commanding General of CAPCOM/INP, General Ramon E. Montaño.
At this command post, after General Montaño had conferred with TF Nazareno Commander, Colonel
Cezar Nazareno, about the adequacy and readiness of his forces, it was agreed that Police General
Alfredo S. Lim would designate Police Colonel Edgar Dula Torres and Police Major Conrado
Francisco as negotiators with the marchers. Police General Lim then proceeded to the WPD CDC
elements already positioned at the foot of Mendiola bridge to relay to Police Colonel Torres and
Police Major Francisco the instructions that the latter would negotiate with the marchers.5 (Emphasis
supplied)

The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From C.M. Recto Avenue, they proceeded
toward the police lines. No dialogue took place between the marchers and the anti-riot squad. It was at this moment
that a clash occurred and, borrowing the words of the Commission "pandemonium broke loose". The Commission
stated in its findings, to wit:

. . . There was an explosion followed by throwing of pillboxes, stones and bottles. Steel bars,
wooden clubs and lead pipes were used against the police. The police fought back with their shields
and truncheons. The police line was breached. Suddenly shots were heard. The demonstrators
disengaged from the government forces and retreated towards C.M. Recto Avenue. But sporadic
firing continued from the government forces.

After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt. Laonglaan Goce sped
towards Legarda Street and lobbed tear gas at the remaining rallyist still grouped in the vicinity of
Mendiola. After dispersing the crowd, the two MDTs, together with the two WPD MDTs, proceeded
to Liwasang Bonifacio upon order of General Montaño to disperse the rallyists assembled thereat.
 Assisting the MDTs were a number of policemen from the WPD, attired in civilian clothes with white
head bands, who were armed with long firearms.6 (Emphasis ours)

After the clash, twelve (12) marchers were officially confirmed dead, although according to Tadeo, there were
thirteen (13) dead, but he was not able to give the name and address of said victim. Thirty-nine (39) were wounded
by gunshots and twelve (12) sustained minor injuries, all belonging to the group of the marchers.

Of the police and military personnel, three (3) sustained gunshot wounds and twenty (20) suffered minor physical
injuries such as abrasions, contusions and the like.

In the aftermath of the confrontation, then President Corazon C. Aquino issued Administrative Order No. 11,7 (A.O.
11, for brevity) dated January 22, 1987, which created the Citizens' Mendiola Commission. The body was composed
of retired Supreme Court Justice Vicente Abad Santos as Chairman, retired Supreme Court Justice Jose Y. Feria
and Mr. Antonio U. Miranda, both as members. A.O. 11 stated that the Commission was created precisely for the
"purpose of conducting an investigation of the disorder, deaths, and casualties that took place in the vicinity of
Mendiola Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of January 22, 1987".
The Commission was expected to have submitted its findings not later than February 6, 1987. But it failed to do so.
Consequently, the deadline was moved to February 16, 1987 by Administrative Order No. 13. Again, the
Commission was unable to meet this deadline. Finally, on February 27, 1987, it submitted its report, in accordance
with Administrative Order No. 17, issued on February 11, 1987.

In its report, the Commission recapitulated its findings, to wit:

(1) The march to Mendiola of the KMP led by Jaime Tadeo, together with the other sectoral groups,
was not covered by any permit as required under Batas Pambansa Blg. 880, the Public Assembly
Act of 1985, in violation of paragraph (a) Section 13, punishable under paragraph (a), Section 14 of
said law.

(2) The crowd dispersal control units of the police and the military were armed with .38 and .45
caliber handguns, and M-16 armalites, which is a prohibited act under paragraph 4(g), Section 13,
and punishable under paragraph (b), Section 14 of Batas Pambansa Blg. 880.

(3) The security men assigned to protect the WPD, INP Field Force, the Marines and supporting
military units, as well as the security officers of the police and military commanders were in civilian
attire in violation of paragraph (a), Section 10, Batas Pambansa 880.

(4) There was unnecessary firing by the police and military crowd dispersal control units in
dispersing the marchers, a prohibited act under paragraph (e), Section 13, and punishable under
paragraph (b), Section 14, Batas Pambansa Blg. 880.

(5) The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden clubs with spikes, and
guns by the marchers as offensive weapons are prohibited acts punishable under paragraph (g),
Section 13, and punishable under paragraph (e), Section 14 of Batas Pambansa Blg. 880.

(6) The KMP farmers broke off further negotiations with the MAR officials and were determined to
march to Malacañang, emboldened as they are, by the inflammatory and incendiary utterances of
their leader, Jaime Tadeo — "bubutasin namin ang barikada . . Dadanak and dugo . . . Ang
nagugutom na magsasaka ay gagawa ng sariling butas. . .

(7) There was no dialogue between the rallyists and the government forces. Upon approaching the
intersections of Legarda and Mendiola, the marchers began pushing the police lines and penetrated
and broke through the first line of the CDC contingent.

(8) The police fought back with their truncheons and shields. They stood their ground but the CDC
line was breached. There ensued gunfire from both sides. It is not clear who started the firing.
 (9) At the onset of the disturbance and violence, the water cannons and tear gas were not put into
effective use to disperse the rioting crowd.

(10) The water cannons and fire trucks were not put into operation because (a) there was no order to
use them; (b) they were incorrectly prepositioned; and (c) they were out of range of the marchers.

(11) Tear gas was not used at the start of the disturbance to disperse the rioters. After the crowd had
dispersed and the wounded and dead were being carried away, the MDTs of the police and the
military with their tear gas equipment and components conducted dispersal operations in the
Mendiola area and proceeded to Liwasang Bonifacio to disperse the remnants of the marchers.

(12) No barbed wire barricade was used in Mendiola but no official reason was given for its
absence.8

From the results of the probe, the Commission recommended9 the criminal prosecution of four unidentified,
uniformed individuals, shown either on tape or in pictures, firing at the direction of the marchers. In connection with
this, it was the Commission's recommendation that the National Bureau of Investigation (NBI) be tasked to
undertake investigations regarding the identities of those who actually fired their guns that resulted in the death of or
injury to the victims of the incident. The Commission also suggested that all the commissioned officers of both the
Western Police District and the INP Field Force, who were armed during the incident, be prosecuted for violation of
paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985. The Commission's
recommendation also included the prosecution of the marchers, for carrying deadly or offensive weapons, but
whose identities have yet to be established. As for Jaime Tadeo, the Commission said that he should be prosecuted
both for violation of paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally without a permit and
for violation of Article 142, as amended, of the Revised Penal Code for inciting to sedition. As for the following
officers, namely: (1) Gen. Ramon E. Montaño; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres; (4)
Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their failure to make
effective use of their skill and experience in directing the dispersal operations in Mendiola, administrative sanctions
were recommended to be imposed.

The last and the most significant recommendation of the Commission was for the deceased and wounded victims of
the Mendiola incident to be compensated by the government. It was this portion that petitioners (Caylao group)
invoke in their claim for damages from the government.

Notwithstanding such recommendation, no concrete form of compensation was received by the victims. Thus, on
July 27, 1987, herein petitioners, (Caylao group) filed a formal letter of demand for compensation from the
Government. 10 This formal demand was indorsed by the office of the Executive Secretary to the Department of
Budget and Management (DBM) on August 13, 1987. The House Committee on Human Rights, on February 10,
1988, recommended the expeditious payment of compensation to the Mendiola victims. 11

After almost a year, on January 20, 1988, petitioners (Caylao group) were constrained to institute an action for
damages against the Republic of the Philippines, together with the military officers, and personnel involved in the
Mendiola incident, before the trial court. The complaint was docketed as Civil Case No. 88-43351.

On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State cannot be sued
without its consent. Petitioners opposed said motion on March 16, 1988, maintaining that the State has waived its
immunity from suit and that the dismissal of the instant action is contrary to both the Constitution and the
International Law on Human Rights.

Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the Republic of the
Philippines on the ground that there was no waiver by the State. Petitioners (Caylao group) filed a Motion for
Reconsideration therefrom, but the same was denied by respondent judge in his Order dated August 8, 1988.
Consequently, Caylao and her co-petitioners filed the instant petition.

On the other hand, the Republic of the Philippines, together with the military officers and personnel impleaded as
defendants in the court below, filed its petition for certiorari.
Having arisen from the same factual beginnings and raising practically identical issues, the two (2) petitions were
consolidated and will therefore be jointly dealt with and resolved in this Decision.

The resolution of both petitions revolves around the main issue of whether or not the State has waived its immunity
from suit.

Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign immunity from
suit. It is their considered view that by the recommendation made by the Commission for the government to
indemnify the heirs and victims of the Mendiola incident and by the public addresses made by then President
Aquino in the aftermath of the killings, the State has consented to be sued.

Under our Constitution the principle of immunity of the government from suit is expressly provided in Article XVI,
Section 3. The principle is based on the very essence of sovereignty, and on the practical ground that there can be
no legal right as against the authority that makes the law on which the right depends. 12 It also rests on reasons of
public policy — that public service would be hindered, and the public endangered, if the sovereign authority could be
subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the
means required for the proper administration of the government. 13

This is not a suit against the State with its consent.

Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the deceased and
the victims of the incident by the government does not in any way mean that liability automatically attaches to the
State. It is important to note that A.O. 11 expressly states that the purpose of creating the Commission was to have
a body that will conduct an "investigation of the disorder, deaths and casualties that took place." 14 In the exercise of
its functions, A.O. 11 provides guidelines, and what is relevant to Our discussion reads:

1 Its conclusions regarding the existence of probable cause for the commission of any offense and
of the persons probably guilty of the same shall be sufficient compliance with the rules on
preliminary investigation and the charges arising therefrom may be filed directly with the proper
court. 15

In effect, whatever may be the findings of the Commission, the same shall only serve as the cause of action in the
event that any party decides to litigate his/her claim. Therefore, the Commission is merely a preliminary venue. The
Commission is not the end in itself. Whatever recommendation it makes cannot in any way bind the State
immediately, such recommendation not having become final and, executory. This is precisely the essence of it being
a fact-finding body.

Secondly, whatever acts or utterances that then President Aquino may have done or said, the same are not
tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after
the incident, does not mean that there was an admission by the State of any liability. In fact to borrow the words of
petitioners (Caylao group), "it was an act of solidarity by the government with the people". Moreover, petitioners rely
on President Aquino's speech promising that the government would address the grievances of the rallyists. By this
alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has
consented to the suit.

Although consent to be sued may be given impliedly, still it cannot be maintained that such consent was given
considering the circumstances obtaining in the instant case.

Thirdly, the case does not qualify as a suit against the State.

Some instances when a suit against the State is proper are: 16

(1) When the Republic is sued by name;

(2) When the suit is against an unincorporated government agency;

(3) When the, suit is on its face against a government officer but the case is such that ultimate liability will belong not
to the officer but to the government.

While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although
the military officers and personnel, then party defendants, were discharging their official functions when the incident
occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission
findings, there was lack of justification by the government forces in the use of firearms. 17 Moreover, the members of
the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 18 as there was
unnecessary firing by them in dispersing the marchers. 19

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public
agent acting under the color of his office when his acts are wholly without authority. 20 Until recently in 1991, 21 this
doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and
non-accountability nor grant a privileged status not claimed by any other official of the Republic. The military and
police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety
of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that
they fired at the unruly crowd to disperse the latter.

While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions
cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers
to release them from any liability, and by the heirs and victims to demand indemnification from the government. The
principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires
no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to
the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act
only by virtue of a title of the state and as its agents and servants. 22 This Court has made it quite clear that even a
"high position in the government does not confer a license to persecute or recklessly injure another." 23

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident.
Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this court in
Shauf vs. Court of Appeals, 24 herein public officials, having been found to have acted beyond the scope of their
authority, may be held liable for damages.

WHEREFORE, finding no reversible error and no grave abuse of discretion committed by respondent Judge in
issuing the questioned orders, the instant petitions are hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur.

Gutierrez, Jr., J., is on leave.

G.R. No. 70547 January 22, 1993

PHILIPPINE NATIONAL RAILWAYS and HONORIO CABARDO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, and BALIWAG TRANSIT, INC., respondents.

The Solicitor General for petitioner.

Leopoldo Sta. Maria for private respondents.

MELO, J.:
The imputation of culpa on the part of herein petitioners as a result of the collision between its strain, bound for
Manila from La Union, with a Baliwag transit bus at the railroad crossing on the road going to Hagonoy, Bulacan on
August l0, 1974, is the subject of the petition at bar directed against the judgment of affirmance rendered by
respondent court, through the Fourth Civil Cases Division (Sison, Bidin (P), Veloso, JJ.), vis-a-vis the decretal
portion handed down by the court of origin in:

1. Ordering the defendants, jointly and severally to pay the plaintiff the amount of P179,511.52 as
actual damages.

2. Ordering the defendants jointly and severally to pay the plaintiff P436,642.03 as reimbursement
for the damages paid by the plaintiff to death, injury and damage claimants.

3. Ordering the defendants jointly and severally to pay exemplary damages in the amount of P50,
000.00 to the plaintiff.

4. Ordering the defendants jointly and severally to pay the plaintiff attorney's fees in the amount of
P5, 000.00.

5. Ordering the defendants, jointly and severally to pay the plaintiff interest at the legal rate on the
above amounts due the plaintiff from August 10, 1974 until fully paid.

6. Ordering the defendants to pay the cost of this suit.

7. Ordering the dismissal of the defendants' counterclaim for lack of factual and legal basis. (p. 101,
Record on Appeal; p. 103. Rollo.)

Culled from the text of the assailed disposition are the facts of the case at bar which are hereunder adopted
verbatim:

The case arose from a collision of a passenger express train of defendant Philippine National
Railways, (PNR) coming from San Fernando, La Union and bound for Manila and a passenger bus
of Baliwag Transit, Inc. which was on its way to Hagonoy, Bulacan, from Manila, but upon reaching
the railroad crossing at Barrio Balungao, Calumpit, Bulacan at about 1:30 in the afternoon of August
10, 1974, got stalled and was hit by defendant's express train causing damages to plaintiff's bus and
its passengers, eighteen (18) of whom died and fifty-three (53) others suffered physical injuries.
Plaintiff alleging that the proximate cause of the collision was the negligence and imprudence of
defendant PNR and its locomotive engineer, Honorio Cirbado, in operating its passenger train in a
busy intersection without any bars, semaphores, signal lights, flagman or switchman to warn the
public of approaching train that would pass through the crossing, filed the instant action for Damages
against defendants. The defendants, in their Answer traversed the material allegation of the
Complaint and as affirmative defense alleged that the collision was caused by the negligence,
imprudence and lack of foresight of plaintiff's bus driver, Romeo Hughes.

At the pre-trial conference held on June 23, 1976, the parties agreed on a partial stipulation of facts
and issues which as amplified at the continuation of the pre-trial conference, on July 12, 1976, are
as follows:

1 That plaintiff is a duly constituted corporation registered with the Securities and
Exchange Commission engaged in the business of transportation and operating
public utility buses for the public with lines covering Manila, Caloocan City, Quezon
City, Malabon, Rizal, Bulacan, Pampanga and Nueva Ecija, and particularly from
Manila to Hagonoy, Bulacan and return in the month of August, l974 passing thru the
town of Calumpit Bulacan, temporarily while the bridge at Hagonoy, Bulacan was
under construction;

2 That defendant Philippine National Railways is a purely government owned and

controlled corporation duly registered and existing virtue of Presidential Decree No.
741, with capacity to sue and be sued, and is likewise engaged in transporting
passengers and cargoes by trains and buses and that, it operates a train line
between San Fernando, La Union and Manila particularly Passenger Express Train
with Body No. 73, passing along the intersection of Barrio Balungao, Calumpit,
Bulacan, in going to San Fernando, La Union from Manila and return;

3. That on August 10, 1974, at about 1:20 o'clock in the afternoon, a Baliuag Transit
Bus with Body No. 1066 and Plate No. XS-929 PUB-Bulacan '74 was driven by its
authorized driver Romeo Hughes and PNR Train No. 73 was operated by Train
Engineer Honorio Cabardo alias Honorio Cirbado and at the railroad intersection at
Barrio Balungao, Calumpit, Bulacan, said passenger train No. 73 hit and bumped the
right mid portion of the plaintiff's passenger bus No. 1066, while the rear portion of
said bus was at the railroad track and its direction was towards Hagonoy, Bulacan at
about 1:30 o'clock in the afternoon;

4. That at the time of the collision there was a slight rainfall in the vicinity of the scene
of the accident and that there was at said intersection no bars, semaphores, and
signal lights that would warn the public of the approaching train that was about to
pass through the intersection and likewise there was no warning devices to passing
trains showing that they were about to pass an intersection in going to Manila from
San Fernando, La Union and back;

5. That on account of said collision, the Baliuag Transit Bus with Body No. 1066
driven by Romeo Hughes was damaged and eighteen (18) of its passengers died
and the rest who were more than fifty three (53) passengers suffered physical
injuries;

6. That after the investigation the Chief of Police of Calumpit, Bulacan, filed a
criminal case of Reckless Imprudence Causing Multiple Homicide with Multiple
Physical Injuries and Damage to Property against Romeo Hughes y Parfan, driver of
the Baliuag Transit bus docketed under Crim. Case No. 2392; while the train
Engineer Honorio Cabardo alias Honorio Cirbado was not included as an accused in
said case, although his train No. 73 was the one that hit and bumped the right rear
portion of the said bus;

7. That immediately after the said accident Major Manuel A. Macam, Chief of the
Municipal Police of Calumpit, Bulacan, together with some of his policemen
conducted an investigation of the accident;

8. That at the railroad crossing in Calumpit, Bulacan where the accident took place
there is no railroad crossing bar, however, during the pre-war days there was a
railroad crossing bar at said intersection; that, however, there was only one sign of
railroad crossing "Stop, Look and Listen" placed on a concrete slab and attached to a
concrete post existing at the approach of the railroad track from the Highway going
towards Hagonoy, Bulacan and that after the said railroad track there was a
designated jeep parking area at the right side in the direction from the Highway to
Hagonoy Bulacan;

9. That the train No. 73 driven by Train Engineer Honorio Cabardo alias Honorio
Cirbado stopped after passing the railroad crossing at a distance of about 50 meters
from the said intersection after the collision on August, 1974;

10. That the expected time of arrival of said Train No. 73 in Manila was 2:41 P.M.
and its departure time from San Fernando, La Union was 9:00 A.M. and its expected
arrival at Calumpit, Bulacan was 1:41 P.M. with no stop at Calumpit, Bulacan.

SIMPLIFICATION OF ISSUES
 11. That the principal issue in the instant case is who between the driver Romeo
Hughes of Baliuag Transit, Incorporated and the train engineer Honorio Cabardo
alias Honorio Cirbado of the Philippine National Railways was negligent or whether
or not both are negligent; that likewise which of said companies was negligent at said
railroad intersection;

12. That another additional issue is whether the Baliuag Transit Incorporated has
exercised the diligence of a good father of the family in the selection and supervision
of its employees. (pp.
85-87, Record on Appeal). ( Annex A, Petition; pp. 79-82, Rollo)

In addition, respondent court deemed it necessary to reflect the salient findings of the case for damages as
formulated by the trial court:

Posed for resolution are the following issues: Who between the driver Romeo Hughes of the Baliuag
Transit Incorporated and Honorio Cabardo, train Engineer of the Philippine National Railways was
negligent in the operation of their respective vehicles, or whether or both were negligent? Could
either of the companies Baliuag Transit Incorporated and the Philippine National Railways be held
accountable for the collision because of negligence?

The defendants presented several statements or affidavits of alleged witnesses to the collision,
specifically Exhibits 2, 3, 4, 5, 6, 11, 13, 14, 15, 16, 17, 18 and 19; the Court is at a loss as to why
the persons who gave the said statements were not presented as witnesses during the trial of the
case, as aptly said, the statements are hearsay evidence (Azcueta v. Cabangbang, — 45 O.G. 144);
at most they be taken as proof only of the fact that statements of said persons were taken and that
investigation was conducted of the incident; the Court cannot consider the averments in said
statements as testimonies or evidence of truth.

Defendants endeavored to show that the proximate and immediate cause of the collision was the
negligence of the bus driver because the driver did not make a stop before ascending the railtrack;
he did not heed the warning or shoutings of bystanders and passengers and proceeded in traversing
the railtrack at a fast speed; that the bus driver was in fact violating Section 42(d) of R.A. 4136,
otherwise known as the Land Transportation and Traffic Code for failure to "stop, look, and listen" at
the intersection, before crossing the railtrack; that it is incumbent upon him to take the necessary
precautions at the intersection because the railroad track is in itself a warning; and the bus driver
ignored such a warning and must assume the responsibility for the result of the motion taken by him
(U.S. v. Mananquil, 42 Phil. 90)

Except the testimony of the train engineer Cabardo, there is no admissible evidence to show that
indeed, the bus driver did not take the necessary precaution in traversing the track. Note that he first
noticed the bus when it was only 15 meters away from him; he could not have possibly noticed the
position of the bus before negotiating the track.

On the other hand, it was shown by plaintiff that the bus driver Romeo Hughes took the necessary
precautions in traversing the track.

The bus driver had stopped before traversing the track and in fact asked the conductor to alight and
made a "Look and Listen" before proceeding; the conductor had done just that and made a signal to
proceed when he did not see any oncoming train. (TSN, October 2l, 1976, p. 4); plaintiff's bus drivers
and conductors are enjoined to observe such a precautionary measure in seminars conducted by
the company. (TSN, September 23, 1976. pp. 26-27).

The evidence disclosed that the train was running fast because by his own testimony, the train
engineer had testified that before reaching the station of Calumpit the terrain was downgrade and
levelled only after passing the Calumpit bridge (TSN, July 28, 1976, p. 14 ); the tendency of the train,
coming from a high point is to accelerate as the gravity will necessarily make it so, especially when it
is pulling seven coaches loaded with goods and passengers.
Moreover, upon impact, the bus loaded with passengers was dragged and thrown into a ditch
several meters away; the train had stopped only after the engine portion was about 190 meters away
from the fallen bus; several passengers were injured and at least 20 died; such facts conclusively
indicate that the train was speeding, because if it were moving at moderate speed, it would not run
some 190 meters after impact and throw the bus at quite a distance especially so when it is claimed
that the train's emergency brakes were applied.

Further, the train was an express train; its departure was 9:00 A.M. at San Fernando, La Union and
expected in Manila at 2:41 P.M.; the collision occurred at 1:30 P.M. or 4 1/2 hours after it left La
Union; surely, the train could have not negotiated such a distance in so short a time if it were not
running at fast speed.

It may be argued that a railroad is not subject to the same restrictions to the speed of its train as a
motorists (Mckelvey v. Delaware L. and W.R. Co. 253 App. D.V. 109, 300 NYS 1263 ); but it does
not follow that a train will be permitted to run fast under all conditions at any rate of speed it may
choose. It must regulate its speed with proper regard for the safety of human life and property
(Johnson v. Southern Pacific Company (Cal. App. 288 p. 81), considering the surrounding
circumstances particularly the nature of the locality (Atchinson, T. and SFR Co. v. Nicks (Arts) 165 p.
2d 167).

Cabardo's route included the passage over the said intersection; he could have noticed that it is a
very busy intersection because the crossroad leads to the Calumpit Poblacion as well as to the
neighboring town of Hagonoy; there was a parking lot by the side of the track whereat passengers
board jeepneys for the neighboring barrios and towns; stalls abound in the vicinity and bystanders
congregate nearby. A prudent train operator must, under the circumstances, slacken his speed
almost for the protection of motorists and pedestrians, not only when a collision is inevitable but
even if no hindrance is apparent on the way;

Moreover, there was an intermittent rain at the time of the collision (see stipulation of facts and
photographs); the condition of the weather was such that even if for this reason alone, the train
engineer should have foreseen that danger of collision lurked because of poor visibility of slippery
road; he should have taken extra precaution by considerably slackening its speed. This he failed to
do even if the nature of his job required him to observe care exercised by a prudent man.

Contributory negligence may not be ascribed to the bus driver; it was evident that he had taken the
necessary precautions before passing over the railway track; if the bus was hit, it was for reasons
beyond the control of the bus driver because he had no place to go; there were vehicles to his left
which prevented him in swerving towards that direction; his bus stalled in view of the obstructions in
his front where a sand and gravel truck stopped because of a jeep maneuvering into a garage up
front. All the wheels at the bus have already passed the rail portion of the track and only the rear
portion of the bus' body occupied or covered the railtrack. This was evident because the part of the
bus hit by the train was the rear since the bus fell on a nearby ditch. Otherwise, if the bus was really
hit in mid-body, the bus could have been halved into two because of the force of the impact.

The stipulation of facts between the parties show that there was no crossing bar at the railroad
intersection at Calumpit, Bulacan at the time of collision (par. 8, Stipulation of Facts); the plaintiff
contended and the defendants did not deny, that there were no signal lights, semaphores, flagman
or switchman thereat; the absence of such devices, the plaintiff argues constitute negligence on the
part of the Philippine National Railways.

A railroad is not required to have a gate (crossing bar) or a flagman, or to maintain signals at every
intersection; only at such places reasonably necessary; what is considered reasonably necessary
will depend on the amount of travel upon the road, the frequency with which trains pass over it and
the view which could be obtained of trains as they approach the crossing, and other conditions (Pari
v. Los Angeles, Ry. Corporation (Cal A2d) 128 p2d 563; Swdyk v. Indiana Harbor Belt R. Co. 148 F.
2d 795, and others).
 As has been amply discussed, the crossroad at the intersection at Calumpit is one which is a busy
thoroughfare; it leads to the Poblacion at Calumpit and other barrios as well as the town of Hagonoy;
the vicinity is utilized as a parking and waiting area for passengers of jeepneys that ply between the
barrios, clearly, the flow of vehicular traffic thereat is huge. It can be said also that, since there is no
other railtrack going North except that one passing at Calumpit, trains pass over it frequently;

A portion of the intersection is being used as a parking area with stalls and other obstructions
present making it difficult, if not impossible, to see approaching trains (see photographs).

The failure of the Philippine National Railways to put a cross bar, or signal light, flagman or
switchman, or semaphores is evidence of negligence and disregard of the safety of the public, even
if there is no law or ordinance requiring it, because public safety demands that said devices or
equipments be installed, in the light of aforesaid jurisprudence. In the opinion of this Court the X sign
or the presence of "STOP, LOOK, LISTEN" warnings would not be sufficient protection of the
motoring public as well as the pedestrians, in the said intersection;

The parties likewise have stipulated that during the pre-war days, there was a railroad crossing bar
at the said intersection (Par-8, Stipulation of Facts). It appears that it was a self imposed
requirement which has been abandoned. In a case it was held that where the use of a flagman was
self imposed, the abandonment thereof may constitute negligence. (Fleming v. Missouri and A. Ry.
Co. 198 ARDC 290, 128 S.W. 2d 286 and others; cited in Sec. 1082 SCRWARTZ, Vol. 2). Similarly,
the abandonment by the PNR of the use of the crossing bar at the intersection at Calumpit
constitutes negligence, as its installation has become imperative, because of the prevailing
circumstances in the place.

A railroad company has been adjudged guilty of negligence and civilly liable for damages when it
failed to install semaphores, or where it does not see to it that its flagman or switchman comply with
their duties faithfully, to motorist injured by a crossing train as long as he had crossed without
negligence on his part (Lilius vs. MRR, 39 Phil. 758). (Decision, pages 94-100, R A.; pp. 83-89,
Rollo).

On the aspect of whether the Philippine National Railways enjoys immunity from suit, respondent court initially noted
that an exculpation of this nature that was raised for the first time on appeal may no longer be entertained in view of
the proscription under Section 2, Rule 9 of the Revised Rules of Court, apart from the fact that the lawyer of
petitioner agreed to stipulate inter alia that the railroad company had capacity to sue and be sued. This being so,
respondent court continued, PNR was perforce estopped from disavowing the prejudicial repercussion of an
admission in judicio. Even as the laws governing the creation and rehabilitation of the PNR were entirely mute on its
power to sue and be sued, respondent court nonetheless opined that such prerogative was implied from the general
power to transact business pertinent or indispensable to the attainment of the goals of the railroad company under
Section 4 of Republic Act No. 4156 as amended by Republic Act No. 6366:

Sec. 4 General Powers — The Philippine National Railways shall have the following general powers:

(a) To do all such other things and to transact all such business directly or indirectly necessary,
incidental or conducive to the attainment of the purpose of the corporation; and

(b) Generally, to exercise all powers of a railroad corporation under the Corporation law.

in conjunction with Section 2(b) of Presidential Decree No. 741:

(b) To own or operate railroad transways, bus lines, trucklines, subways, and other kinds of land
transportation, vessels, and pipelines, for the purpose of transporting for consideration, passengers,
mail and property between any points in the Philippines;

Thus, respondent court utilized the doctrine of implied powers announced in National Airports Corporation vs.
Teodoro, Sr. and Philippine Airlines, Inc. (91 Phil. 203 [1952]), to the effect that the power to sue and be sued is
implicit from the faculty to transact private business. At any rate, respondent court characterized the railroad
company as a private entity created not to discharge a governmental function but, among other things, to operate a
transport service which is essentially a business concern, and thus barred from invoking immunity from suit.

In brushing aside petitioners' asseveration that the bus driver outraced the train at the crossing, respondent court
observed that the bus was hit by the train at its rear portion then protruding over the tracks as the bus could not
move because another truck at its front was equally immobile due to a jeep maneuvering into a nearby parking area.
Under these tight conditions, respondent court blamed the train engineer who admitted to have seen the
maneuvering jeep at a distance (TSN, July 28, 1976, page 18) and had the last clear chance to apply the brakes,
knowing fully well that the vehicles following the jeep could not move away from the path of the train. Apart from
these considerations, it was perceived below that the train was running fast during the entire trip since the train
stopped 190 meters from the point of impact and arrived at Calumpit, Bulacan earlier than its expected time of
arrival thereat.

Moreover, respondent court agreed with the conclusion reached by the trial court that the absence of a crossing bar,
signal light, flagman or switchman to warn the public of an approaching train constitutes negligence per the
pronouncement of this Court in Lilius vs. Manila Railroad Company (59 Phil 758 [1934]).

Concerning the exercise of diligence normally expected of an employer in the selection and supervision of its
employees, respondent court expressed the view that PNR was remiss on this score since it allowed Honorio
Cabardo, who finished only primary education and became an engineer only through sheer experience, to operate
the locomotive, not to mention the fact that such plea in avoidance was not asserted in the answer and was thus
belatedly raised on appeal.

Petitioner moved to reconsider, but respondent court was far from persuaded. Hence, the petition before Us which,
in essence, incorporates similar disputations anent PNR's immunity from suit and the attempt to toss the burden of
negligence from the train engineer to the bus driver of herein private respondent.

The bone of contention for exculpation is premised on the familiar maxim in political law that the State, by virtue of
its sovereign nature and as reaffirmed by constitutional precept, is insulated from suits without its consent (Article
16, Section 3, 1987 Constitution). However, equally conceded is the legal proposition that the acquiescence of the
State to be sued can be manifested expressly through a general or special law, or indicated implicitly, as when the
State commences litigation for the purpose of asserting an affirmative relief or when it enters into a contract (Cruz,
Philippine Political Law, 1991 edition, page 33; Sinco, Philippine Political Law, Eleventh Edition, 1962, page 34).
When the State participates in a covenant, it is deemed to have descended from its superior position to the level of
an ordinary citizen and thus virtually opens itself to judicial process. Of course, We realize that this Court qualified
this form of consent only to those contracts concluded in a proprietary capacity and therefore immunity will attach for
those contracts entered into in a governmental capacity, following the ruling in the 1985 case of United States of
America vs. Ruiz (136 SCRA 487 [1985]; cited by Cruz, supra at pages 36-37). But the restrictive interpretation laid
down therein is of no practical worth nor can it give rise to herein petitioner PNR's exoneration since the case of
Malong vs. Philippine National Railways (138 SCRA 63, [1985]); 3 Padilla, 1987 Constitution with Comments and
Cases, 1991 edition, page 644), decided three months after Ruiz was promulgated, was categorical enough to
specify that the Philippine National Railways "is not performing any governmental function" (supra, at page 68).

In Malong, Justice Aquino, speaking for the Court en banc, declared:

The Manila Railroad Company, the PNR's predecessor, as a common carrier, was not immune from
suit under Act No. 1510, its charter.

The PNR Charter, Republic Act No. 4156, as amended by Republic Act No. 6366 and Presidential
Decree No. 741, provides that the PNR is a government instrumentality under government
ownership during its 50-year term, 1964 to 2014. It is under the Office of the President of the
Philippines. Republic Act No. 6366 provides:

Sec. 1-a. Statement of policy. — The Philippine National Railways, being a factor for
socio-economic development and growth, shall be a part of the infrastructure
program of the government and as such shall remain in and under government
ownership during its corporate existence. The Philippine National Railways must be
administered with the view of serving the interests of the public by providing them the
 maximum of service and, while aiming at its greatest utility by the public, the
economy of operation must be ensured so that service can be rendered at the
minimum passenger and freight prices possible.

The charter also provides:

Sec. 4. General powers. — The Philippine National Railways shall have the following
general powers:

(a) To do all such other things and to transact all such business directly or indirectly
necessary, incidental or conducive to the attainment of the purpose of the
corporation; and

(b) Generally, to exercise all powers of a railroad corporation under the Corporation
Law. (This refers to Sections 81 to 102 of the Corporation Law on railroad
corporations, not reproduced in the Corporation Code.)

Section 36 of the Corporation Code provides that every corporation has the power to sue and be sued in its
corporate name. Section 13(2) of the Corporation Law provides that every corporation has the power to sue and be
sued in any court.

A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the
logical and practical ground that there can be no legal right as against the authority that makes the
law on which the right depends (Justice Holmes in Kawananakoa vs. Polyblank, 205 U.S. 353, 51 L.
3d 834).

The public service would be hindered, and public safety endangered, if the supreme authority could
be subjected to suit at the instance of every citizen and, consequently, controlled in the use and
disposition of the means required for the proper administration of the Government (The Siren vs.
U.S., 7 Wall. 152, 19 L. ed. 129). (at pp.
65-66).

To the pivotal issue of whether the State acted in a sovereign capacity when it organized the PNR for the purpose of
engaging in transportation, Malong continued to hold that:

. . . in the instant case the State divested itself of its sovereign capacity when it organized the PNR
which is no different from its predecessor, the Manila Railroad Company. The PNR did not become
immune from suit. It did not remove itself from the operation of Articles 1732 to 1766 of the Civil
Code on common carriers.

The correct rule is that "not all government entities, whether corporate or noncorporate, are immune
from suits. Immunity from suit is determined by the character of the objects for which the entity was
organized." (Nat. Airports Corp. vs. Teodoro and Phil. Airlines, Inc., 91 Phil. 203, 206; Santos vs.
Santos, 92 Phil. 281, 285; Harry Lyons, Inc. vs. USA, 104 Phil. 593).

Suits against State agencies with respect to matters in which they have assumed to act in a private
or nongovernmental capacity are not suits against the State (81 C.J.S. 1319).

Suits against State agencies with relation to matters in which they have assumed to
act in a private or nongovernmental capacity, and various suits against certain
corporations created by the State for public purposes, but to engage in matters
partaking more of the nature of ordinary business rather than functions of a
governmental or political character, are not regarded as suits against the State.

The latter is true, although the State may own the stock or property of such a
corporation, for by engaging in business operations through a corporation the State
 divests itself so far of its sovereign character, and by implicating consents to suits
against the corporation. (81 C.J.S. 1319).

The foregoing rule was applied to State Dock Commissions carrying on business relating to pilots,
terminals and transportation (Standard Oil Co. of New Jersey vs. U.S., 27 Fed. 2nd 370) and to
State Highways Commissions created to build public roads and given appropriations in advance to
discharge obligations incurred in their behalf (Arkansas State Highway Commission vs. Dodge, 26
SW 2nd 879 and State Highway Commission of Missouri vs. Bates, 296 SW 418, cited in National
Airports case).

The point is that when the government enters into a commercial business it abandons its sovereign
capacity and is to be treated like any other private corporation (Bank of the U.S. vs. Planters' Bank, 9
Wheat. 904, 6 L ed. 244, cited in Manila Hotel Employees Association vs. Manila Hotel Company, et
al., 73 Phil. 374, 388). The Manila Hotel case also relied on the following rulings:

By engaging in a particular business through the instrumentality of a corporation, the

government divests itself pro hac vice of its sovereign character, so as to render the
corporation subject to the rules of law governing private corporations.

When the State acts in its proprietary capacity, it is amenable to all the rules of law
which bind private individuals.

There is not one law for the sovereign and another for the subject, but when the
sovereign engages in business and the conduct of business enterprises, and
contracts with individuals, whenever the contract in any form comes before the
courts, the rights and obligation of the contracting parties must be adjusted upon the
same principles as if both contracting parties were private persons. Both stand upon
equality before the law, and the sovereign is merged in the dealer, contractor and
suitor (People vs. Stephens, 71 N.Y. 549).

It should be noted that in Philippine National Railways vs. Union de Maquinistas, etc., L-31948, July
25, 1978, 84 SCRA 223, it was held that the PNR funds could be garnished at the instance of a labor
union.

It would be unjust if the heirs of the victim of an alleged negligence of the PNR employees could not
sue the PNR for damages. Like any private common carrier, the PNR is subject to the obligations of
persons engaged in that private enterprise. It is not performing any governmental function.

Thus, the National Development Company is not immune from suit. It does not exercise sovereign
functions. It is an agency for the performance of purely corporate, proprietary or business functions
(National Development Company vs. Tobias, 117 Phil. 703, 705 and cases cited therein; National
Development Company vs. NDC Employees and Workers' Union, L-32387, August 19, 1975, 66
SCRA 18l, 184).

Other government agencies not enjoying immunity from suit are the Social Security System (Social
Security System vs. Court of Appeals,
L-41299, February 21, 1983, 120 SCRA 707) and the Philippine National Bank (Republic vs.
Philippine National Bank, 121 Phil. 26). (at pp. 66-68).

We come now to the question of whether respondent court properly agreed with the trial court in imputing
negligence on the part of the train engineer and his employer.

It was demonstrated beyond cavil in the course of the pre-trial hearings held for the purpose of stipulating on crucial
facts that the bus was hit on the rear portion thereof after it crossed the railroad tracks. Then, too the train engineer
was frank enough to say that he saw the jeep maneuvering into a parking area near the crossing which caused the
obstruction in the flow of traffic such that the gravel and sand truck including the bus of herein private respondent
were not able to move forward or to take the opposite lane due to other vehicles. The unmindful demeanor of the
train engineer in surging forward despite the obstruction before him is definitely anathema to the conduct of a
prudent person placed under the same set of perceived danger. Indeed:

When it is apparent, or when in the exercise of reasonable diligence commensurate with the
surroundings it should be apparent, to the company that a person on its track or to get on its track is
unaware of his danger or cannot get out of the way, it becomes the duty of the company to use such
precautions, by warnings, applying brakes, or otherwise, as may be reasonably necessary to avoid
injury to him. (65 Am. Jur., Second Edition. p. 649).

Likewise, it was established that the weather condition was characterized with intermittent rain which should have
prompted the train engineer to exercise extra precaution. Also, the train reached Calumpit, Bulacan ahead of
scheduled arrival thereat, indicating that the train was travelling more than the normal speed of 30 kilometers per
hour. If the train were really running at 30 kilometers per hour when it was approaching the intersection, it would
probably not have travelled 190 meters more from the place of the accident (page 10, Brief for Petitioners). All of
these factors, taken collectively, engendered the concrete and yes, correct conclusion that the train engineer was
negligent who, moreover, despite the last opportunity within his hands vis-a-vis the weather condition including the
presence of people near the intersection, could have obviated the impending collision had he slackened his speed
and applied the brakes (Picart vs. Smith, 37 Phil. 809 [1918]).Withal, these considerations were addressed to the
trial judge who, unlike appellate magistrates, was in a better position to assign weight on factual questions. Having
resolved the question of negligence between the train engineer and the bus driver after collating the mass of
evidence, the conclusion reached thereafter thus commands great respect especially so in this case where
respondent court gave its nod of approval to the findings of the court of origin (Co vs. Court of Appeals, 193 SCRA
198; 206 [1991]); Amigo vs. Teves, 50 O.G. 5799; Regalado, Remedial Law Compendium, Fifth edition, page 353).

What exacerbates against petitioners' contention is the authority in this jurisdiction to the effect that the failure of a
railroad company to install a semaphore or at the very least, to post a flagman or watchman to warn the public of the
passing train amounts to negligence (Lilius vs. Manila Railroad Company, 59 Phil. 758 [1934]).

WHEREFORE, the petition is hereby DISMISSED and the decision of respondent court AFFIRMED.

SO ORDERED.

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL,
respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his
citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he
says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry
into this matter, considering that the petition for quo warranto against him was not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment
of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough,
all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if
it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this
petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The
petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on
that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the
petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was
paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election
Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the
Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural
Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing
fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by
law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the
timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically
Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied
ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate
Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated
it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected
although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as
solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988.
He immediately paid the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-
proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed
suspended under Section 248 of the Omnibus Election Code. At any rate, he says, Rule 36, Section 5, of the
2

COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven
days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. These
3

rules could not retroact to January 26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of
filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private
respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and
did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution.
However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its
publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became
effective on January 5, 1988. Its Section 30 provides in part:
 Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations
promulgated by the Commission shall take effect on the seventh day after their publication in the
Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on
time. We agree with the respondents that the fee was paid during the ten-day period as extended by the
pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not
require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the
requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record
that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven
days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily
Inquirer, or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera when he argues that the resolutions became effective "immediately
4

upon approval" simply because it was so provided therein. We held in that case that publication was still
necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not
imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the
timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun
Insurance Office, Ltd. v. Asuncion, however this Court, taking into account the special circumstances of that
5

case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the court may allow the payment of the said fee
within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20,
1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, the
Commission may refuse to take action thereon until they are paid and may dismiss the action or
the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for
failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of
citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a
qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important
consideration than the reglementary period the petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the
quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and
considering the necessity for an early resolution of that more important question clearly and urgently affecting
the public interest, we shall directly address it now in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear that our sole
function in this proceeding should be to resolve the single issue of whether or not the Court of
Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be
deemed pro forma. But going over the extended pleadings of both parties, the Court is
immediately impressed that substantial justice may not be timely achieved, if we should decide
this case upon such a technical ground alone. We have carefully read all the allegations and
arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable
and unusually competent counsel, and we feel we can better serve the interests of justice by
broadening the scope of our inquiry, for as the record before us stands, we see that there is
enough basis for us to end the basic controversy between the parties here and now, dispensing,
however, with procedural steps which would not anyway affect substantially the merits of their
respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the
period for appeal to lapse, the more correct procedure was for the respondent court to forward
the case to the proper court which was the Court of Appeals for appropriate action. Considering,
however, the length of time that this case has been pending, we apply the rule in the case of Del
Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc.
v. Court of Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to settle the
entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation. No useful purpose will be served if this case is
remanded to the trial court only to have its decision raised again to the
Intermediate Appellate Court and from there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141,
January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the rendition of a
verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court
of Appeals. The facts and the legal propositions involved will not change, nor should the
ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is
time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v.
Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v.
Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil. 162). Sound practice seeks to accommodate the theory which avoids
lâwphî1.ñèt

waste of time, effort and expense, both to the parties and the government, not to speak of delay
in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic
of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should
act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99
Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that
this Court act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is not necessary where
the court is in a position to resolve the dispute based on the records before it. On many
occasions, the Court, in the public interest and the expeditious administration of justice, has
resolved actions on the merits instead of remanding them to the trial court for further
proceedings, such as where the ends of justice would not be subserved by the remand of the case
or when public interest demands an early disposition of the case or where the trial court had
already received all the evidence of the parties. 8
This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed
that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its

own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so
doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment,
from resolving the petition for quo warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the petitioner's
citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner
to be a citizen of the Philippines. The second was rendered by the Commission on Immigration and
10

Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate
Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the
petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case."
Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until
representations shall have been made with the Australian Embassy for official verification of the petitioner's
alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners
Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the
proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally
naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from
the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien
with the CID upon his return to this country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an
Australian citizen as of that date by reason of his naturalization in 1976. That statement is reproduced in full
12

as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment
signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as
such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23
November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9
April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-
73), and do hereby certify that the statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the
Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required
to meet normal requirements for the grant of citizenship and was granted Australian citizenship
by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must take an oath
of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I
 ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his
former nationality as this would depend on the citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980
on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50 of
Australian Citizenship Act 1948 which relates to the giving of false or misleading information of
a material nature in respect of an application for Australian citizenship. If such a prosecution was
successful, he could be deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the
Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other
than marriage, then he would automatically lose as Australian citizenship under Section 17 of the
Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE
AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT
MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by
the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with
the Australian Government through the Embassy of the Philippines in Canberra has elicited the
following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath
of allegiance or make an affirmation of allegiance which carries a renunciation of "all other
allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR.
Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:

OATH OF ALLEGIANCE
 I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear
true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and
successors according to law, and that I will faithfully observe the laws of Australia and fulfill my
duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will
be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her
heirs and successors according to law, and that I will faithfully observe the Laws of Australia
and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained
Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared
before the immigration authorities that he was an alien and registered as such under Alien Certificate of
Registration No. B-323985. He later asked for the change of his status from immigrant to a returning former
16

Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. He also categorically
17

declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even
sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the
petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this
ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of
his acts, let alone the fact that he was assisted by counsel when he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's political
affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but
this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in
several cases. Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss
19

or in the answer, having been invoked only when the petitioner filed his reply to the private respondent's
20

comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him
of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino
because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal
and positive process, simplified in his case because he was married to an Australian citizen. As a condition for
such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both
quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty
Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not
divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of
CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1)
naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of
allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner.
It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was
found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically
restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a
matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely
rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The
possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has
been automatically reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of
Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim,
that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree
of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that
he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine
citizenship through repatriation by applying with the Special Committee on Naturalization
created by Letter of Instruction No. 270, and, if their applications are approved, taking the
necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed
to have reacquired Philippine citizenship. The Commission on Immigration and Deportation
shall thereupon cancel their certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his
alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a
citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the
Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. He
21

was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government
Code providing in material part as follows:

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

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the
will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate,
it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the
people of that locality could not have, even unanimously, changed the requirements of the Local Government
Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the
Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to
preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their
countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that he was
qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the
office now held by him. These qualifications are continuing requirements; once any of them is lost during
incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not possessed at all in the first place on the day of the
election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to
serve as such.
Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can
replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest
number of votes in the election, he was obviously not the choice of the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections decided in 1985. In that case,
22

the candidate who placed second was proclaimed elected after the votes for his winning rival, who was
disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second
placer won by default. That decision was supported by eight members of the Court then with three dissenting
23 24

and another two reserving their vote. One was on official leave.
25 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case
of Geronimo v. Ramos, Which represents the more logical and democratic rule. That case, which reiterated the
27

doctrine first announced in 1912 in Topacio vs. Paredes was supported by ten members of the Court without
28 29

any dissent, although one reserved his vote, another took no part and two others were on leave. There the
30 31 32

Court held:

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the majority of which have
positively declared through their ballots that they do not choose him.

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 a fundamental Idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to
vote the winner into office or maintain him there. However, in the absence of a statute which
clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in
the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as
stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this
priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so
endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him
material and other attractions that he may not find in his own country. To be sure, he has the right to renounce
the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. But having
33

done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour
or he is himself disowned by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be
restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and
he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not
be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The
temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,

vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at
which it is aimed. The 1987 Constitution mandates that an aspirant for election to the House of Representatives
1

be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the election." The mischief which this provision — reproduced verbatim
2

from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with
the conditions and needs of a community and not identified with the latter, from an elective office to serve that
community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the
First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following
information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED

IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District
of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" with the
5

Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In
his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency
requirement for candidates for the House of Representatives on the evidence of declarations made by her in
Voter Registration Record 94-No. 3349772 and in her Certificate of Candidacy. He prayed that "an order be
6

issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry
"seven" months to "since childhood" in item no. 8 of the amended certificate. On the same day, the Provincial
8

Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground
that it is filed out of time, the deadline for the filing of the same having already lapsed on March
20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before
the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head
Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the
head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original
Certificate of Candidacy was the result of an "honest misinterpretation" which she sought to rectify by adding
10

the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence. Impugning respondent's motive in filing the petition
11

seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed
her intended registration by writing a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following
completion of her six month actual residence therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the First District to the Second District and
pursued such a move up to the Supreme Court, his purpose being to remove respondent as
petitioner's opponent in the congressional election in the First District. He also filed a bill, along
with other Leyte Congressmen, seeking the creation of another legislative district to remove the
town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the instant petition for the same
objective, as it is obvious that he is afraid to submit along with respondent for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13

came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009
meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3)
canceling her original Certificate of Candidacy. Dealing with two primary issues, namely, the validity of
14

amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of
candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the
First Legislative District, to which she could have responded "since childhood." In an
accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of
disqualification by alleging that she has been a resident of the First Legislative District of Leyte
since childhood, although she only became a resident of the Municipality of Tolosa for seven
months. She asserts that she has always been a resident of Tacloban City, a component of the
First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent
announced that she would be registering in Tacloban City so that she can be a candidate for the
District. However, this intention was rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides,
the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she
was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she
thought what was asked was her actual and physical presence in Tolosa is not easy to believe
because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to
be elected immediately preceding the election." Thus, the explanation of respondent fails to be
persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is

devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case
of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is
misplaced. The case only applies to the "inconsequential deviations which cannot affect the
result of the election, or deviations from provisions intended primarily to secure timely and
orderly conduct of elections." The Supreme Court in that case considered the amendment only as
a matter of form. But in the instant case, the amendment cannot be considered as a matter of
form or an inconsequential deviation. The change in the number of years of residence in the
place where respondent seeks to be elected is a substantial matter which determines her
qualification as a candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects the filer. To admit the amended
certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the
detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to
prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7 months residency the respondent
indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration
Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot,
Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy
is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August
24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters
thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of
these three (3) different documents show the respondent's consistent conviction that she has
transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period
of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7
months. The Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by

this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not
complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with
"domicile" which imports not only the intention to reside in a fixed place but also personal
presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which when absent for business or pleasure, or for like reasons, one
intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-
Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991,
the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since
childhood is nothing more than to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the
respondent in her affidavit. Except for the time that she studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered
voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978,
she served as member of the Batasang Pambansa as the representative of the City of Manila and
later on served as the Governor of Metro Manila. She could not have served these positions if she
had not been a resident of the City of Manila. Furthermore, when she filed her certificate of
candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro
Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election
officer of San Juan, Metro Manila requesting for the cancellation of her registration in the
permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she became a resident of
many places, including Metro Manila. This debunks her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile.
She registered as a voter in different places and on several occasions declared that she was a
resident of Manila. Although she spent her school days in Tacloban, she is considered to have
abandoned such place when she chose to stay and reside in other different places. In the case of
Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to
remain there; and (3) intention to abandon the old domicile. In other words there must basically
be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and
later on in Manila, coupled with her intention to stay there by registering as a voter there and
expressly declaring that she is a resident of that place, she is deemed to have abandoned
Tacloban City, where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative
of such intention. Respondent's statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any evidence to show that her conduct, one
year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that
prior to her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte
"since childhood."

To further support the assertion that she could have not been a resident of the First District of
Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she
placed in her Voter Registration Record that she resided in the municipality of Tolosa for a
period of six months. This may be inconsequential as argued by the respondent since it refers
only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First
District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only.15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's
Motion for Reconsideration of the April 24, 1995 Resolution declaring her not qualified to run for the position
16

of Member of the House of Representatives for the First Legislative District of Leyte. The Resolution tersely
17

stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it,
no new substantial matters having been raised therein to warrant re-examination of the resolution
granting the petition for disqualification.
18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of
the canvass show that she obtained the highest number of votes in the congressional elections in the First
District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution
directing that the proclamation of petitioner be suspended in the event that she obtains the highest number of
votes.19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the
elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass
completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed
that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy
of said Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First
District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this
court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be
classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a
period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner
outside the period mandated by the Omnibus Election Code for disqualification cases under
Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after the May 8, 1995 elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application
of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in
agreement with the general proposition that for the purposes of election law, residence is synonymous with
domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining a candidate's qualifications for election to the House
of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic this court
20

took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for
business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they
disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or
21

physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If
a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to have different residences in
22

various places. However, a person can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this
23

distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may have a residence in one place
and a domicile in another. Residence is not domicile, but domicile is residence coupled with the
intention to remain for an unlimited time. A man can have but one domicile for the same purpose
at any time, but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of residence
without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political
laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the
fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, the Court held that "the term residence. . . is synonymous with domicile which imports not
24

only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." Larena vs. Teves reiterated the same doctrine in a case involving the
25 26

qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental.
Faypon vs. Quirino, held that the absence from residence to pursue studies or practice a profession or
27

registration as a voter other than in the place where one is elected does not constitute loss of residence. So 28

settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has
stated that the mere absence of an individual from his permanent residence without the intention to abandon it
does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have
placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually
means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention,
there was an attempt to require residence in the place not less than one year immediately
preceding the day of the elections. So my question is: What is the Committee's concept of
 residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile
or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, "and a resident thereof", that is,
in the district for a period of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has
raised the same point that "resident" has been interpreted at times as a matter of intention rather
than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual
residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a
provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote
as enacted by law. So, we have to stick to the original concept that it should be by domicile and
not physical residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded that the framers of the
31

1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as
having the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency
requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned
entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as
seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining
whether or not and individual has satisfied the constitution's residency qualification requirement. The said
statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to
deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her
disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in
the space provided for the residency qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was
"since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First
District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa,
Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate
would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately
by the entry for residence in the constituency where a candidate seeks election thus:
 7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven
Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of
petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence
or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the
second requiring domicile — coupled with the circumstances surrounding petitioner's registration as a voter in
Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest
mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the
Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the
time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously
lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's
domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according
to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter.
Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel,
Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and
maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given
place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to
do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the
assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the
time she filed her certificate of candidacy because she became a resident of many places" flies in the face of
settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile
for election law purposes. In Larena vs. Teves, supra, we stressed:
33

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives
with his family in a municipality without having ever had the intention of abandoning it, and
without having lived either alone or with his family in another municipality, has his residence in
the former municipality, notwithstanding his having registered as an elector in the other
municipality in question and having been a candidate for various insular and provincial positions,
stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, We explained that:

34

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may desire to return to his native town to cast his ballot but for professional or
business reasons, or for any other reason, he may not absent himself from his professional or
 business activities; so there he registers himself as voter as he has the qualifications to be one
and is not willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin has not forsaken him. 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 constitute abandonment or loss of such residence. It finds justification
in the natural desire and longing of every person to return to his place of birth. This strong
feeling of attachment to the place of one's birth must be overcome by positive proof of
abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC
was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not
only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile,
which we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from
1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to
Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House
of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a
congressman of Ilocos Norte and registered there as a voter. When her husband was elected
Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965, when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel,
Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to
Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for
election as President of the Philippines and filed her Certificate of Candidacy wherein she
indicated that she is a resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the last four decades. None of these purposes unequivocally
point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born
in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her
adulthood there and eventually established residence in different parts of the country for various reasons. Even
during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to
her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting well-publicized projects for the benefit of her province
and hometown, and establishing a political power base where her siblings and close relatives held positions of
power either through the ballot or by appointment, always with either her influence or consent. These well-
publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power
in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in
Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she
did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her
residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely
expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile
of origin by operation of law. This domicile was not established only when her father brought his family back to
Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate:
37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one;
and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to
continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity
or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. In the case at bench, the evidence adduced by private
38

respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of
domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with
one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as
a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and "residence." The presumption that the wife
39

automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use
of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two
concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms
imply relations between a person and a place; but in residence, the relation is one of fact while in
domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the
wife from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the
female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses
her domicile of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:
 La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales,
sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means
wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual
residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is
further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring to another positive act of relocating the family
to another home or place of actual residence. The article obviously cannot be understood to refer to domicile
which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not
only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with
the concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and
unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles
(of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix
a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and
fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into
account the situations where the couple has many residences (as in the case of the petitioner). If the husband has
to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they
may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence."
Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for
professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular
matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision
must be made from a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a
place. A person can have two or more residences, such as a country residence and a city
residence. Residence is acquired by living in place; on the other hand, domicile can exist without
actually living in the place. The important thing for domicile is that, once residence has been
established in one place, there be an intention to stay there permanently, even if residence is also
established in some other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an
iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations where the spouses could not be compelled to live with each
42
other such that the wife is either allowed to maintain a residence different from that of her husband or, for
obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In
De la Vina vs. Villareal this Court held that "[a] married woman may acquire a residence or domicile separate
43

from that of her husband during the existence of the marriage where the husband has given cause for divorce." 44

Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an
event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband
either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not
be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo the Court held
45

that:

Upon examination of the authorities, we are convinced that it is not within the province of the
courts of this country to attempt to compel one of the spouses to cohabit with, and render
conjugal rights to, the other. Of course where the property rights of one of the pair are invaded,
an action for restitution of such rights can be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the
restitution of the purely personal right of consortium. At best such an order can be effective for
no other purpose than to compel the spouses to live under the same roof; and he experience of
those countries where the courts of justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it, that court would make a
mandatory decree, enforceable by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v.
Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and
Admiralty Division of the High Court of Justice, expressed his regret that the English law on the
subject was not the same as that which prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the
injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy
of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and
in case of disobedience may serve in appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover,
has ever attempted to make a preemptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow and live with her husband, who
had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby,
36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea of
enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order
of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and
in the alternative, upon her failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for
the return of the wife to the marital domicile was sanctioned by any other penalty than the
consequences that would be visited upon her in respect to the use and control of her property;
 and it does not appear that her disobedience to that order would necessarily have been followed
by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged —
by virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The
problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan,
Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's
residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what
petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code.
To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term
residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the
concept of women's rights in the intervening years by making the choice of domicile a product of mutual
agreement between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil
Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-
affecting the rights and obligations of husband and wife — the term residence should only be interpreted to
mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only
acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of
the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and
Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." 47

Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her
brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG
Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having
been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or
chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she
cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one
where situations exist within the subsistence of the marriage itself where the wife gains a domicile different
from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we
are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting
petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of
the Omnibus Election Code. Moreover, petitioner contends that it is the House of Representatives Electoral
48
Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally
construed to be merely directory, "so that non-compliance with them does not invalidate the judgment on the
49

theory that if the statute had intended such result it would have clearly indicated it." The difference between a
50

mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by
several American authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of
expediency, the reason being that less injury results to the general public by disregarding than
enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation
of thirty (30) days within which a decree may be entered without the consent of counsel, it was
held that "the statutory provisions which may be thus departed from with impunity, without
affecting the validity of statutory proceedings, are usually those which relate to the mode or time
of doing that which is essential to effect the aim and purpose of the Legislature or some incident
of the essential act." Thus, in said case, the statute under examination was construed merely to be
directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision
after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our
courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having
failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is
52

evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification
case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole
judge of all contests relating to the elections, returns and qualifications of members of Congress begins only
after a candidate has become a member of the House of Representatives. Petitioner not being a member of the
53

House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or
deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a
distinction was made on such a ground here. Surely, many established principles of law, even of election laws
were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals,
including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny
an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the
mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a
seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions
dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby
directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of
the First District of Leyte.

SO ORDERED.
G.R. No. L-21855 January 30, 1968

IN THE MATTER OF THE PETITION OF ANDRES SINGSON TO BE ADMITTED OR TO BE DECLARED A

CITIZEN OF THE PHILIPPINES. ANDRES SINGSON, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

Mabanag, Elegir & Associates for petitioner-appellant.

Office of the Solicitor General for oppositor-appellee.

MAKALINTAL, J.:

Appeal from the order of the Court of First Instance of La Union dated July 15, 1963 setting aside and declaring null
and void its previous decision declaring petitioner a citizen of the Philippines in Naturalization Case No. 30.

Petitioner filed his petition for naturalization on October 12, 1959, with an alternative prayer that he be permitted to
present evidence of his Philippine citizenship and declared a Filipino citizen accordingly. After due publication and
hearing, there being no opposition from either the office of the Solicitor General or the Provincial Fiscal, the lower
court received the evidence for the petitioner. On August 9, 1960 it rendered its decision holding that inasmuch as
petitioner was already a Filipino citizen as borne out by the evidence presented, there was no need to give due course
to his petition for naturalization since it would serve no useful purpose for him. Accordingly, the lower court granted
petitioner's alternative prayer and declared him a citizen of the Philippines.

The above-mentioned conclusion was arrived at after the lower court found that:

From the evidence adduced, it appears that the petitioner has from the time he became of the age of
discretion been considering himself a Filipino citizen as shown in his residence certificates, stating therein
his citizenship as a Filipino. He did not register himself as an alien in the Bureau of Immigration. When he
reached the age of majority, he started exercising the right of suffrage and in 1941 made his declaration of
intention to elect Filipino citizenship. He explained that if he filed his petition he only did so because he
wanted to secure a categorical declaration about his citizenship in order to avoid further molestations by
some agencies or persons, who according to him, constantly pestered him about his status.

The evidence further conclusively show that said petitioner was born in the Philippines with a Filipino mother
and a Chinese father who were not legally married during their cohabitation up to the time of their death.
These are not contradicted by any evidence presented in this case, because as a matter of fact no
opposition whatsoever has been registered by the government through either the office of the Solicitor
General or the office of the Provincial Fiscal of La Union. In the case of Leon Retunil Sy Quiamsuan vs.
Republic of the Philippines (49 0. G. 492, February 1953), the Supreme Court ruled:

When the evidence in applicant's possession proves in his opinion that he has already the status of
a Filipino citizen as would make it unnecessary to press further his petition for naturalization, he may
be declared a Filipino citizen in the same proceedings. There is nothing in the law which would
prohibit this alternative procedure. This course has been followed in a number of cases (Palanca vs.
Republic, L-301, April 7, 1948; Santos Go vs. Government, 52 Phil. 543; Serra vs. Republic, L-4223,
May 12, 1952).

The State did not appeal from the aforequoted decision. However, after the lapse of more than two years or on
December 17, 1962, the Solicitor General filed a petition to set aside the decision and to declare the same null and
void on the following grounds:

(a) At the time of the hearing of his petition, the herein petitioner had not always deported himself to be a
Filipino citizen and in fact he had registered himself with the Bureau of Immigration as a Chinese and was
thereby issued on August 29, 1950, his Alien Certificate of Registration No. A-105940 at San Fernando La
Union; and
 (b) That whatever rights petitioner has to Philippine citizenship by virtue of his alleged "illegitimate birth" of a
Filipino mother, granting the same to be true, he had already forfeited when he expressly renounced his
rights and privileges as a Filipino citizen, as contained in his affidavit executed on October 19, 1948 and
wherein he expressly considered himself to be a citizen of China.

Petitioner opposed, and the Solicitor General replied to the opposition. After petitioner's counter-reply the case was
set for hearing. At the hearing the parties did not present evidence but submitted a "stipulation of facts", which was
actually nothing more than an enumeration of the pleadings submitted and the proceedings which transpired in relation
to this case. Paragraph 7 thereof particularly raised as a legal issue the proposition that "the Government cannot
reopen this case or attack the decision collaterally in this same proceeding inasmuch as the decision rendered herein
did not confer Philippine citizenship upon petitioner, but merely confirmed his Philippine citizenship, . . . ."

On July 15, 1963 the lower court issued an order declaring the decision rendered on August 9, 1960, which found
petitioner to be a Filipino citizen, void and of no force and effect. This order is based principally on an affidavit (Annex
"A") dated October 19, 1948, allegedly executed by petitioner. In said affidavit petitioner appears to have expressly
renounced all his rights and privileges as a Filipino citizen in the event that he should be considered as such by virtue
of his having been born out of wedlock of a Chinese father and a Filipino mother.

The question before us is whether or not the lower court erred in setting aside its previous order declaring petitioner
a citizen of the Philippines. Appellant contends that inasmuch as the original decision did not confer Philippine
citizenship upon him but merely confirmed such citizenship, the doctrine of res judicata and laches prevents the
Government from attacking collaterally the questioned decision more than two (2) years after its rendition. On the
other hand, appellee argues that although the petition for naturalization granted petitioners alternative prayer that he
be declared a citizen, that fact alone did not operate to convert the case into a petition for declaratory relief nor did
the judgment place appellant beyond the reach of legal remedies available under the Naturalization Law.

The order declaring petitioner a citizen in the naturalization proceeding was obviously predicated on two (2) grounds,
namely: (1) that the evidence presented by him in support of his claim that he is a Filipino citizen is true and reliable;
and (2) that the court a quo believed at the time it rendered its decision (August 9, 1960) that it could properly declare
petitioner a citizen in the same proceeding should the evidence presented so warrant, apparently relying on the ruling
in Sy Quiamsuan vs. Republic (92 Phil. 675), which was favorably cited in a later case (Sen et al. vs. Republic, G.R.
No. L-6868, April 30, 1955), as follows:

We find no error on the part of the lower court in allowing (petitioner) to present proof regarding his
Philippine citizenship in (naturalization) proceedings when, in his opinion, the evidence in his possession
proves that he has already that status as would make it unnecessary to press further his petition for
naturalization. There is nothing in the law which would prohibit this alternative procedure. In fact, this course
has been followed in a number of cases wherein the very evidence presented to substantiate the petition for
naturalization rendered the latter unnecessary and the court proceeded to dismiss the case after
pronouncement that petitioner is already a Philippine citizen. Such a pronouncement is inevitable if we have
to sanction the petition for dismissal and it is unfair and unjust to quash the proceedings if the claim for
Philippine citizenship is not substantiated.

At the time the lower court rendered its decision of August 9, 1960, declaring petitioner a citizen of the Philippines,
the ruling in the Sy Quiamsuan and Sen cases was no longer controlling. The lower court thus premised that decision
on jurisprudence which had already been modified, particularly by the case of Suy Chan vs. Republic (G. R. No.
14159, April 18, 1960), which held:

1. Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an
individual. Courts of justice exist for the settlement of justiciable controversies, which imply a given right,
legally demandable and enforceable, an act or omission violative of said right, and a remedy, granted or
sanctioned by law, for said breach of right. As an incident only of the adjudication of the rights of the parties
to a controversy, the court may pass upon, and make a pronouncement relative to, their status. Otherwise,
such a pronouncement is beyond judicial power. . . . At times, the law permits the acquisition of a given
status, such as naturalization, by judicial decree. But, there is no similar legislation authorizing the institution
of a judicial proceeding to declare that a given person is part of our citizenry.
The above ruling was reiterated in the case of Yu Chin vs. Republic (G. R. No. L-15775 April 29, 1961), where this
Court declared:

The above holding, being the correct exposition and interpretation of the law involved, overrules our holdings
in Pablo y Sen et al. vs. Republic, G. R. No. L-6868, April 30, 1955, and other previous cases, to the effect
that the court can make a declaration that an applicant for naturalization is a Filipino citizen in the same
naturalization proceedings if the evidence so warrants. (The Suy Chan ruling was also quoted with approval
in Santiago vs. Commissioner of Immigration, G. R. No. L-14653, January 31, 1963)

It would seem therefore that the decision of August 9 was the result of an erroneous appreciation of the applicable
jurisprudence at the time. Even so, however, the error did not necessarily render the decision void, and the same
would acquire force and effect unless reversed on appeal or set aside on other recognized grounds, such as fraud in
its procurement.

One such ground is that relied upon by the Solicitor General here, namely, the fact that in 1948 petitioner executed
an affidavit which reads as follows:

That I am duly registered under Alien Certificate of Registration No. 162732-V, issued at San Fernando, La
Union on May 30, 1947;

That in the year 1927, I was admitted or landed here in the Philippines and was issued LCR No. 76410-
45575 issued at Manila on December 16, 1927;

That even if I was admitted as a son of P.I. citizen, I have always exercised my rights as a citizen or subject
of China for the reason that I was already at the age of majority when I first arrived in this country and that I
have always registered under the Immigration Act of 1940;

That if I am considered as a Filipino citizen as shown in my LCR Co., I hereby renounce all right and
privileges accorded to a Filipino Citizen and therefore consider myself now as a citizen or subject of China.

The contents of the aforesaid affidavit were not revealed by appellee in his petition and his failure to do so led the
court to declare him a citizen. If appellee had really executed the said affidavit there can be no doubt that the court a
quo correctly set aside its previous decision. But appellee has raised the genuineness and due execution of the
affidavit as an issue, and in fact denied the same as well as the truth of its contents, in his opposition to the Solicitor
General's principal motion below.

The stipulation of facts, upon which the parties agreed to submit the case for resolution, does not show any admission
by appellee of the genuineness and due execution of the affidavit in question. All that was stipulated on in this respect
is that when the Solicitor General filed his petition to set aside the decision of August 9, the affidavit was attached
thereto as an annex. When the court a quo set aside its original decision without affording appellee a chance to
present evidence to rebut the Republic's allegation of fraudulent representation by him, it virtually deprived him of his
day in court.

WHEREFORE, the order appealed from is set aside, and the case remanded to the court below for further proceedings
in connection with the motion of Solicitor General to set aside and annul the decision declaring petitioner a Filipino
citizen. No pronouncement as to costs.

March 8, 2016

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x
G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ
Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with
extremely urgent application for an ex parte issuance of temporary restraining order/status quo ante order
and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the
Commission on Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC
En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and (
4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC)
and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish
Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody
over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days
after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner
was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and
Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC)
of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be
changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although
necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed
adoption, the petitioner's adoptive mother discovered only sometime in the second half of 2005 that the lawyer
2

who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
indicating petitioner's new name and the name of her adoptive parents. Without delay, petitioner's mother
3

executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe. 4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification
Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 by the Department of
6

Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport
and respectively secured Philippine Passport Nos. L881511 and DD156616. 7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines but she opted to continue her studies abroad and left for the United States of America (U.S.) in
8

1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her
Bachelor of Arts degree in Political Studies.
9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the
Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. Desirous of being with her
10

husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony
or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. Her two 12

daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July
1998 and 5 June 2004, respectively. 13

On 18 October 2001, petitioner became a naturalized American citizen. She obtained U.S. Passport No.
14

017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's
candidacy for President in the May 2004 elections. It was during this time that she gave birth to her youngest
daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning
of her father's deteriorating medical condition. Her father slipped into a coma and eventually expired. The
17

petitioner stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as
to assist in the settlement of his estate. 18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her
earnest desire to be with her grieving mother, the petitioner and her husband decided to move and reside
permanently in the Philippines sometime in the first quarter of 2005. The couple began preparing for their
19

resettlement including notification of their children's schools that they will be transferring to Philippine schools
for the next semester; coordination with property movers for the relocation of their household goods, furniture
20

and cars from the U.S. to the Philippines; and inquiry with Philippine authorities as to the proper procedure to
21

be followed in bringing their pet dog into the country. As early as 2004, the petitioner already quit her job in
22

the U.S. 23

Finally, petitioner came home to the Philippines on 24 May 2005 and without delay, secured a Tax
24

Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately followed while 25

her husband was forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their
family home there. 26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a
condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of
2005. The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by
27

the Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006. Meanwhile, her
28

children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the
family's remaining household belongings. She travelled back to the Philippines on 11 March 2006.
29 30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and
abandonment of their address in the U.S. The family home was eventually sold on 27 April 2006. Petitioner's
31 32

husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started
working for a major Philippine company in July 2006. 33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City
where they built their family home and to this day, is where the couple and their children have been residing.
34 35
A Transfer Certificate of Title covering said property was issued in the couple's name by the Register of Deeds
of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic
Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003. Under the same Act, she
36

filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with
petitions for derivative citizenship on behalf of her three minor children on 10 July 2006. As can be gathered
37

from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and declared that she is deemed to
have reacquired her Philippine citizenship while her children are considered as citizens of the Philippines. 38

Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three
(3) children.39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006. She also 40

secured from the DFA a new Philippine Passport bearing the No. XX4731999. This passport was renewed on
41

18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA. 42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
Television Review and Classification Board (MTRCB). Before assuming her post, petitioner executed an
43

"Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American
Citizenship" before a notary public in Pasig City on 20 October 2010, in satisfaction of the legal requisites
44

stated in Section 5 of R.A. No. 9225. The following day, 21 October 2010 petitioner submitted the said
45

affidavit to the BI and took her oath of office as Chairperson of the MTRCB. From then on, petitioner stopped
46 47

using her American passport. 48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States." On that day, she accomplished a sworn
49

questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB
Chairperson on 21 October 2010 with the intent, among others, of relinquishing her American citizenship. In 50

the same questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the
United States" effective 21 October 2010. 52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for
the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the
Philippines before May 13, 2013." Petitioner obtained the highest number of votes and was proclaimed Senator
53

on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. In her COC, the56

petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day
before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. The petitioner 57

attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to
before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC
cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due
course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division. She is convinced that the COMELEC has jurisdiction over her petition. Essentially, Elamparo's
59 60

contention is that petitioner committed material misrepresentation when she stated in her COC that she is a
natural-born Filipino citizen and that she is a resident of the Philippines for at least ten (10) years and eleven
(11) months up to the day before the 9 May 2016 Elections. 61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on
account of the fact that she was a foundling. Elamparo claimed that international law does not confer natural-
62

born status and Filipino citizenship on foundlings. Following this line of reasoning, petitioner is not qualified
63

to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino
citizen to begin with. Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to
64

have lost that status when she became a naturalized American citizen. According to Elamparo, natural-born
65

citizenship must be continuous from birth. 66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration
she made in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six (
6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be counted at the earliest from July 2006,
when she reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her
domicile in the Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo
warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the
Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or deliberate intent to misrepresent on her
part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency
qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered
citizens;

b. foundlings are presumed under international law to have been born of citizens of the place
where they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC
for President in the May 9, 2016 Elections and that the same is in full force and effect and has
not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;
 f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as
early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A.
No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest
mistake, not binding and should give way to evidence on her true date of reacquisition of
domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to
decide a purely political question, that is, should she serve as the country's next leader.
68

After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC,
filed for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National
and Local Elections, contained material representations which are false. The fallo of the aforesaid Resolution
reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or
Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President
of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED. 69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC
En Banc resolved in its 23 December 2015 Resolution by denying the same. 70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras
(Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, docketed as SPA
71

No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown
parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship
is determinative of natural-born status. Tatad invoked the rule of statutory construction that what is not
73

included is excluded. He averred that the fact that foundlings were not expressly included in the categories of
citizens in the 193 5 Constitution is indicative of the framers' intent to exclude them. Therefore, the burden lies
74

on petitioner to prove that she is a natural-born citizen.

75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that
foundlings have a nationality. According to Tatad, international conventions and treaties are not self-executory
76

and that local legislations are necessary in order to give effect to treaty obligations assumed by the Philippines. 77

He also stressed that there is no standard state practice that automatically confers natural-born status to
foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine
citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as
she was a foundling. 79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year
residency requirement. Tatad opined that petitioner acquired her domicile in Quezon City only from the time
80

she renounced her American citizenship which was sometime in 2010 or 2011. Additionally, Tatad questioned
81

petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat
and her frequent trips to the U.S. 82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139
(DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-
born citizen. He advanced the view that former natural-born citizens who are repatriated under the said Act
83

reacquires only their Philippine citizenship and will not revert to their original status as natural-born citizens. 84

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of
the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against
her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines
prior to her reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten
(10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, docketed as SPA No. 15-007
85

(DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be
cancelled on the ground that she did not possess the ten-year period of residency required for said candidacy
and that she made false entry in her COC when she stated that she is a legal resident of the Philippines for ten
(10) years and eleven (11) months by 9 May 2016. Contreras contended that the reckoning period for
86

computing petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition to
reacquire Philippine citizenship was approved by the BI. He asserted that petitioner's physical presence in the
87

country before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she
was then living here as an American citizen and as such, she was governed by the Philippine immigration laws. 88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not
invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus
Election Code. Instead, Tatad completely relied on the alleged lack of residency and natural-born status of
89

petitioner which are not among the recognized grounds for the disqualification of a candidate to an elective
office.
90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her
ineligibility for the Presidency. A petition for quo warranto falls within the exclusive jurisdiction of the
91

Presidential Electoral Tribunal (PET) and not the COMELEC. 92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. Otherwise
93

stated, she has a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be
citizens of the country where they are found. Consequently, the petitioner is considered as a natural-born
94

citizen of the Philippines. 95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the
right to reacquire her natural-born status. Moreover, the official acts of the Philippine Government enjoy the
96
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born
citizen, her appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC. She 97

believed that all these acts reinforced her position that she is a natural-born citizen of the Philippines.
98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice
in the Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home in Corinthian Hills. 99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she
renounced her American citizenship as long as the three determinants for a change of domicile are complied
with. She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite
100

for the acquisition of a new domicile of choice. 101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake
made in good faith. 102

In a Resolution promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a
103

natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines
for a period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective position of President of the
Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT

the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution.
On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with
urgent prayer for the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining
the COMELEC and its representatives from implementing the assailed COMELEC Resolutions until further
orders from the Court. The Court also ordered the consolidation of the two petitions filed by petitioner in its
Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET
ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
 3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave
abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for
President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or
cancelled "on the exclusive ground" that she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the
issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation case, decide the
qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition
to other requirements, must present their platform or program of government; and accredit citizens' arms
of the Commission on Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission, in
addition to other penalties that may be prescribed by law.
 (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation
of places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive,
order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of
the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the Constitution.
There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, which was104

affirmatively cited in the En Banc decision in Fermin v. COMELEC is our guide. The citation in Fermin reads:
105

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is
noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of
voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification
is contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in § 12 and §68 of the Omnibus Election Code
and in §40 of the Local Government Code and are for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the
purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have
this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed
in §2 of the Law does not imply that he does not suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the
importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election
the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins because of the very acts for which his disqualification is
being sought. That is why it is provided that if the grounds for disqualification are established, a candidate will
not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some reason he
has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the
determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is
satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made after the election and only in the event
they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the
COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be. 106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the
amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate. 107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a
competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by
law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of
Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent court that the candidate sought to be
disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law
or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other.
Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the
qualification of a candidate. The facts of qualification must beforehand be established in a prior proceeding
before an authority properly vested with jurisdiction. The prior determination of qualification may be by statute,
by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification
"provided by law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course
on grounds of false representations regarding his or her qualifications, without a prior authoritative finding that
he or she is not qualified, such prior authority being the necessary measure by which the falsity of the
representation can be found. The only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior decisions against
which the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this
case, alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to
rule essentially that since foundlings are not mentioned in the enumeration of citizens under the 1935
108

Constitution, they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner
109

admitted that she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship with a Filipino
citizen when "it is certain that such relationship is indemonstrable," proceeded to say that "she now has the
burden to present evidence to prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in
Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation. That said,
110

there is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-born
Filipino. Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino
citizen. The private respondents should have shown that both of petitioner's parents were aliens. Her admission
that she is a foundling did not shift the burden to her because such status did not exclude the possibility that her
parents were Filipinos, especially as in this case where there is a high probability, if not certainty, that her
parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such
parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce
belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except when it tends
in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) that from 1965
111

to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos
born in the country was 10,558,278. The statistical probability that any child born in the Philippines in that
decade is natural-born Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo
Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in
the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304
foreigners, or 99.55%. Also presented were figures for the child producing ages (15-49). In 1960, there were
230,528 female Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349
Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190
female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted, during the
oral arguments, that at the time petitioner was found in 1968, the majority of the population in Iloilo was
Filipino.
112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an
infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal
1 âwp hi1

bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature and the
ordinary habits of life. All of the foregoing evidence, that a person with typical Filipino features is abandoned
113

in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such
that there would be more than a 99% chance that a child born in the province would be a Filipino, would
indicate more than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That
probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules
on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the
Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get
pregnant and leave their newborn babies behind. We do not face a situation where the probability is such that
every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need
to frame our questions properly. What are the chances that the parents of anyone born in the Philippines would
be foreigners? Almost zero. What are the chances that the parents of anyone born in the Philippines would be
Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046
children born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to natural born Filipino children is
1:1357. This means that the statistical probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of
Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
means that the statistical probability that any child born in the Philippines on that decade would be a natural
born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the
statistical probability that a child born in the Philippines would be a natural born Filipino will not be affected by
whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent
might even be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not
imagine foreigners abandoning their children here in the Philippines thinking those infants would have better
economic opportunities or believing that this country is a tropical paradise suitable for raising abandoned
children. I certainly doubt whether a foreign couple has ever considered their child excess baggage that is best
left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the
statistical certainty - 99.9% - that any child born in the Philippines would be a natural born citizen, a decision
denying foundlings such status is effectively a denial of their birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of
human beings. Your Honor, constitutional interpretation and the use of common sense are not separate
disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is
silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to foundlings, there is a need to examine the
intent of the framers. In Nitafan v. Commissioner of Internal Revenue, this Court held that:
114

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers. 115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. The following
exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children
of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural
children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I
refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are considered
Spaniards, because the presumption is that a child of unknown parentage is the son of a Spaniard. This may be
applied in the Philippines in that a child of unknown parentage born in the Philippines is deemed to be Filipino,
and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown
parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner
who does not recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother
and father [whom the latter] does not recognize, should also be considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not]
refer to them. By international law the principle that children or people born in a country of unknown parents
are citizens in this nation is recognized, and it is not necessary to include a provision on the subject
exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that
persons of "unknown parentage" are not citizens but only because their number was not enough to merit specific
mention. Such was the account, cited by petitioner, of delegate and constitution law author Jose Aruego who
117

said:
 During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines,
and also foundlings; but this amendment was defeated primarily because the Convention believed that
the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them,
should be governed by statutory legislation. Moreover, it was believed that the rules of international law
were already clear to the effect that illegitimate children followed the citizenship of the mother, and that
foundlings followed the nationality of the place where they were found, thereby making unnecessary the
inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a
textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence
is by saying that it was the view of Montinola and Roxas which prevailed that there is no more need to
expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution
can constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn
existing rules. This is basic. What matters here is that Montinola and Roxas were able to convince their
colleagues in the convention that there is no more need to expressly declare foundlings as Filipinos because
they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of
redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3)
of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is
appropriate to invoke a famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not
silently silent, it is silently vocal.
118

The Solicitor General makes the further point that the framers "worked to create a just and humane society,"
that "they were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent
against foundlings." He exhorts that, given the grave implications of the argument that foundlings are not
natural-born Filipinos, the Court must search the records of the 1935, 1973 and 1987 Constitutions "for an
express intention to deny foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution really intended to take this path to
the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three
Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social
justice. Of special consideration are several provisions in the present charter: Article II, Section 11 which
provides that the "State values the dignity of every human person and guarantees full respect for human rights,"
Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities x x x" and Article XV, Section 3 which requires the State to defend the "right of children to
assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their development." Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide
that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to
family rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even
though living abroad." Adoption deals with status, and a Philippine adoption court will have jurisdiction only if
the adoptee is a Filipino. In Ellis and Ellis v. Republic, a child left by an unidentified mother was sought to be
119

adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it
has jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is
the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the
theory that jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to
this theory, we have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not
over the status of the petitioners, who are foreigners. (Underlining supplied)
120

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-
Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country
Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption
of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this
Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a
foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under Article
IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to perform an act"
means that the act must be personally done by the citizen. In this instance, the determination of foundling status
is done not by the child but by the authorities. Secondly, the object of the process is the determination of the
121

whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not analogous to
naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of
an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a
Foundling Certificate issued in her favor. The Decree of Adoption issued on 13 May 1974, which approved
122

petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his
wife, Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling. 123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can
become part of the sphere of domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. On the other hand, generally accepted principles of international law, by
124

virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive
from treaty obligations. Generally accepted principles of international law include international custom as
evidence of a general practice accepted as law, and general principles of law recognized by civilized nations. 125

International customary rules are accepted as binding as a result from the combination of two elements: the
established, widespread, and consistent practice on the part of States; and a psychological element known as the
opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it. "General principles of
126

law recognized by civilized nations" are principles "established by a process of reasoning" or judicial logic,
based on principles which are "basic to legal systems generally," such as "general principles of equity, i.e., the
127

general principles of fairness and justice," and the "general principle against discrimination" which is embodied
in the "Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention
Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of
Employment and Occupation." These are the same core principles which underlie the Philippine Constitution
128

itself, as embodied in the due process and equal protection clauses of the Bill of Rights. 129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally
accepted principles of international law and binding on the State. Article 15 thereof states:
130

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to
acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the child would
otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article
24 thereof provide for the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right, to such measures of protection as are required by his status as a minor,
on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from
birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended,
and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality of the
country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage
is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it
was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found,
contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be
considered to have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction
of Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the
1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1)
ofwhich effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations
131

Convention on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon
132

v. Tagitis, this Court noted that the Philippines had not signed or ratified the "International Convention for the
133

Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced
disappearances in the said convention was nonetheless binding as a "generally accepted principle of
international law." Razon v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of
international law although the convention had been ratified by only sixteen states and had not even come into
force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner points out, the
Court was content with the practice of international and regional state organs, regional state practice in Latin
America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, where only
134

four countries had "either ratified or acceded to" the 1966 "Convention on the Recognition and Enforcement of
135

Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also
pointed out that that nine member countries of the European Common Market had acceded to the Judgments
Convention. The Court also cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only
the practices of fourteen countries were considered and yet, there was pronouncement that recognition of
foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of
international law" are based not only on international custom, but also on "general principles of law recognized
by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice,
fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems generally," support the notion that the right against enforced
136

disappearances and the recognition of foreign judgments, were correctly considered as "generally accepted
principles of international law" under the incorporation clause.

Petitioner's evidence shows that at least sixty countries in Asia, North and South America, and Europe have
137

passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness;
twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally
accepted principle of international law to presume foundlings as having been born of nationals of the country in
which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international
law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to
"Filipino children." In all of them, foundlings are among the Filipino children who could be adopted. Likewise,
it has been pointed that the DFA issues passports to foundlings. Passports are by law, issued only to citizens.
This shows that even the executive department, acting through the DFA, considers foundlings as Philippine
citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is
rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of
natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the
Philippines. As the empirical data provided by the PSA show, that presumption is at more than 99% and is a
virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were
designed to address the plight of a defenseless class which suffers from a misfortune not of their own making.
We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of
the community of nations. The Solicitor General's warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions
were drafted because the world community is concerned that the situation of foundlings renders them legally
invisible. It would be tragically ironic if this Honorable Court ended up using the international instruments
which seek to protect and uplift foundlings a tool to deny them political status or to accord them second-class
citizenship. 138

The COMELEC also ruled that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did
139

not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant
must perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in
general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140

repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino
who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if
he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his
former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-
Condon v. COMELEC where we described it as an "abbreviated repatriation process that restores one's
141

Filipino citizenship x x x." Also included is Parreno v. Commission on Audit, which cited Tabasa v. Court of
142

Appeals, where we said that "[t]he repatriation of the former Filipino will allow him to recover his natural-
143

born citizenship. Parreno v. Commission on Audit is categorical that "if petitioner reacquires his Filipino
144

citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-
born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was
obviously passed in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired.
Congress saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is
not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in
Bengson III v. HRET where the phrase "from birth" was clarified to mean at the time of birth: "A person who
145

at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is
"repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that
there are only two types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and that
there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only two
classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the process of naturalization to obtain
Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason
therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be
elected as member of the House of Representatives. 146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always
revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of
Appeals and Jejomar Erwin S. Binay, Jr., where we decreed reversed the condonation doctrine, we cautioned
147

that it "should be prospective in application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of the Philippines." This Court also
said that "while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized
as good law prior to its abandonment. Consequently, the people's reliance thereupon should be respected." 148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she
put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born Filipino. It has been contended that the
data required were the names of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to
sever all legal ties between the biological parents and the adoptee, except when the biological parent is the
spouse of the adoptee." Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate
149

"attesting to the fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear any
notation that it is an amended issue." That law also requires that "[a]ll records, books, and papers relating to
150

the adoption cases in the files of the court, the Department [of Social Welfare and Development], or any other
agency or institution participating in the adoption proceedings shall be kept strictly confidential." The law
151

therefore allows petitioner to state that her adoptive parents were her birth parents as that was what would be
stated in her birth certificate anyway. And given the policy of strict confidentiality of adoption records,
petitioner was not obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for
cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material
representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before
the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the
day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a
resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of
"Period of Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11 months"
which according to her pleadings in these cases corresponds to a beginning date of 25 May 2005 when she
returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There
are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention
to remain there; and 3. an intention to abandon the old domicile. To successfully effect a change of domicile,
152

one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning
the former place of residence and establishing a new one and definite acts which correspond with the purpose.
In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual. 153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and
relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing her
arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail
correspondences starting in March 2005 to September 2006 with a freight company to arrange for the shipment
of their household items weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of
Animal Industry inquiring how to ship their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army
in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title Insurance
Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to
the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit
from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed
with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming that
the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to
finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its
Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May
2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two
requisites, namely, physical presence and animus manendi, but maintained there was no animus non-
revertendi. The COMELEC disregarded the import of all the evidence presented by petitioner on the basis of
154

the position that the earliest date that petitioner could have started residence in the Philippines was in July 2006
when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on
Coquilla v. COMELEC, Japzon v. COMELEC and Caballero v. COMELEC. During the oral arguments,
155 156 157

the private respondents also added Reyes v. COMELEC. Respondents contend that these cases decree that the
158

stay of an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner was still
an American (without any resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay
from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v.
COMELEC, the only evidence presented was a community tax certificate secured by the candidate and his
159
declaration that he would be running in the elections. Japzon v. COMELEC did not involve a candidate who
160

wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that
residence is distinct from citizenship, the issue there was whether the candidate's acts after reacquisition
sufficed to establish residence. In Caballero v. COMELEC, the candidate admitted that his place of work was
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abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC, the candidate was found
162

to be an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof she
offered was a seven-month stint as provincial officer. The COMELEC, quoted with approval by this Court, said
that "such fact alone is not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the
Court had no choice but to hold that residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and
taken together leads to no other conclusion that she decided to permanently abandon her U.S. residence (selling
the house, taking the children from U.S. schools, getting quotes from the freight company, notifying the U.S.
Post Office of the abandonment of their address in the U.S., donating excess items to the Salvation Army, her
husband resigning from U.S. employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her
children in Philippine schools, buying property here, constructing a residence here, returning to the Philippines
after all trips abroad, her husband getting employed here). Indeed, coupled with her eventual application to
reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the years, it is
clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free
as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a
Balikbayan Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who
must leave after one year. Included in the law is a former Filipino who has been naturalized abroad and "comes
or returns to the Philippines." The law institutes a balikbayan program "providing the opportunity to avail of
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the necessary training to enable the balikbayan to become economically self-reliant members of society upon
their return to the country" in line with the government's "reintegration program." Obviously, balikbayans are
164 165

not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it
would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year.
That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate himself into
the community before he attends to the necessary formal and legal requirements of repatriation. And that is
exactly what petitioner did - she reestablished life here by enrolling her children and buying property while
awaiting the return of her husband and then applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There
is no judicial precedent that comes close to the facts of residence of petitioner. There is no indication in
Coquilla v. COMELEC, and the other cases cited by the respondents that the Court intended to have its rulings
166

there apply to a situation where the facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that
petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was
false because she put six ( 6) years and six ( 6) months as "period of residence before May 13, 2013" in her
2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine resident only in
November 2006. In doing so, the COMELEC automatically assumed as true the statement in the 2012 COC and
the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as
the period of residence as of the day she submitted that COC in 2012. She said that she reckoned residency from
April-May 2006 which was the period when the U.S. house was sold and her husband returned to the
Philippines. In that regard, she was advised by her lawyers in 2015 that residence could be counted from 25
May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as
inquiring about residence as of the time she submitted the COC, is bolstered by the change which the
COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the
day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge that the
first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return
of her husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat,
would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means conclusive.
There is precedent after all where a candidate's mistake as to period of residence made in a COC was overcome
by evidence. In Romualdez-Marcos v. COMELEC, the candidate mistakenly put seven (7) months as her
167

period of residence where the required period was a minimum of one year. We said that "[i]t is the fact of
residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or
not an individual has satisfied the constitutions residency qualification requirement." The COMELEC ought to
have looked at the evidence presented and see if petitioner was telling the truth that she was in the Philippines
from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned
here on 24 May 2005 not because it was false, but only because COMELEC took the position that domicile
could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not
take away the fact that in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24
May 2005. When she claimed to have been a resident for ten (10) years and eleven (11) months, she could do so
in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for
quo warranto had been filed against her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225,
was an established fact to repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted
that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately, also in the press. Respondents have not
disputed petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the
media, the stated period of residence in the 2012 COC and the circumstances that surrounded the statement
were already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her
Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC
when she put in six ( 6) years and six ( 6) months as she misunderstood the question and could have truthfully
indicated a longer period. Her answer in the SET case was a matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October 2015, she could not be said to have been attempting to hide
her erroneous statement in her 2012 COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement
and have it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's
pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC.
Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact
(eligibility and qualifications for elective office), but should evince a deliberate intent to mislead, misinform or
hide a fact which would otherwise render a candidate ineligible. It must be made with an intention to deceive
the electorate as to one's qualifications to run for public office.
168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced
dates all of which can evince animus manendi to the Philippines and animus non revertedi to the United States
of America. The veracity of the events of coming and staying home was as much as dismissed as
inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator"
which the COMELEC said "amounts to a declaration and therefore an admission that her residence in the
Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner]
fails to meet the residency requirement for President." This conclusion, as already shown, ignores the standing
jurisprudence that it is the fact of residence, not the statement of the person that determines residence for
purposes of compliance with the constitutional requirement of residency for election as President. It ignores the
easily researched matter that cases on questions of residency have been decided favorably for the candidate on
the basis of facts of residence far less in number, weight and substance than that presented by petitioner. It
169

ignores, above all else, what we consider as a primary reason why petitioner cannot be bound by her declaration
in her COC for Senator which declaration was not even considered by the SET as an issue against her eligibility
for Senator. When petitioner made the declaration in her COC for Senator that she has been a resident for a
period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at the time the declaration for Senator
was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the general
public was never made aware by petitioner, by word or action, that she would run for President in 2016.
Presidential candidacy has a length-of-residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator. Such other facts of residence have never
been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to
finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in
Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was
enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in
San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian
Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled
[petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate
of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and
"Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the
family's remaining household belongings. [Petitioner] returned to the Philippines on 11 March 2006.
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In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May
2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built
their family home. 170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the
exclusive ground of false representation, to consider no other date than that mentioned by petitioner in her COC
for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the
Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly
diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC), entitled
Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and
Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No.
15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the
Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the
Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the
First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and Local
Elections of 9 May 2016.