G.R. No.

26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO
QUIMIGUING
and
JACOBA
CABILIN,plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffs-appellants.
Godardo Jacinto for defendant-appellee.

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

Appeal on points of law from an order of the Court of First Instance of
Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), in its Civil Case
No. 1590, dismissing a complaint for support and damages, and another order
denying amendment of the same pleading.
The events in the court of origin can be summarized as follows:
Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the
court below. In her complaint it was averred that the parties were neighbors in
Dapitan City, and had close and confidential relations; that defendant Icao,
although married, succeeded in having carnal intercourse with plaintiff several
times by force and intimidation, and without her consent; that as a result she
became pregnant, despite efforts and drugs supplied by defendant, and
plaintiff had to stop studying. Hence, she claimed support at P120.00 per
month, damages and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for lack of cause of action
since the complaint did not allege that the child had been born; and after
hearing arguments, the trial judge sustained defendant's motion and dismissed
the complaint.
Thereafter, plaintiff moved to amend the complaint to allege that as a result of
the intercourse, plaintiff had later given birth to a baby girl; but the court,
sustaining defendant's objection, ruled that no amendment was allowable,
since the original complaint averred no cause of action. Wherefore, the plaintiff
appealed directly to this Court.
We find the appealed orders of the court below to be untenable. A conceived
child, although as yet unborn, is given by law a provisional personality of its
own for all purposes favorable to it, as explicitly provided in Article 40 of the

Civil Code of the Philippines. The unborn child, therefore, has a right to support
from its progenitors, particularly of the defendant-appellee (whose paternity is
deemed admitted for the purpose of the motion to dismiss), even if the said
child is only "en ventre de sa mere;" just as a conceived child, even if as yet
unborn, may receive donations as prescribed by Article 742 of the same Code,
and its being ignored by the parent in his testament may result in preterition of
a forced heir that annuls the institution of the testamentary heir, even if such
child should be born after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn children may be accepted
by those persons who would legally represent them if they were already born.
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of 'representation.
It is thus clear that the lower court's theory that Article 291 of the Civil Code
declaring that support is an obligation of parents and illegitimate children "does
not contemplate support to children as yet unborn," violates Article 40
aforesaid, besides imposing a condition that nowhere appears in the text of
Article 291. It is true that Article 40 prescribing that "the conceived child shall
be considered born for all purposes that are favorable to it" adds further
"provided it be born later with the conditions specified in the following article"
(i.e., that the foetus be alive at the time it is completely delivered from the
mother's womb). This proviso, however, is not a condition precedent to the
right of the conceived child; for if it were, the first part of Article 40 would
become entirely useless and ineffective. Manresa, in his Commentaries (5th
Ed.) to the corresponding Article 29 of the Spanish Civil Code, clearly points
this out:
Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en
el sentido tecnico que la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados 'derechos en estado de
pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30,
no determina el nacimiento de aquellos derechos (que ya existian de
antemano), sino que se trata de un hecho que tiene efectos declarativos. (1
Manresa, Op. cit., page 271)

A second reason for reversing the orders appealed from is that for a married
man to force a woman not his wife to yield to his lust (as averred in the original
complaint in this case) constitutes a clear violation of the rights of his victim
that entitles her to claim compensation for the damage caused. Says Article
21 of the Civil Code of the Philippines:
ART. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
The rule of Article 21 is supported by Article 2219 of the same Code:
ART 2219. Moral damages may be recovered in the following and analogous
cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....
Thus, independently of the right to Support of the child she was carrying,
plaintiff herself had a cause of action for damages under the terms of the
complaint; and the order dismissing it for failure to state a cause of action was
doubly in error.
WHEREFORE, the orders under appeal are reversed and set aside. Let the
case be remanded to the court of origin for further proceedings conformable
to this decision. Costs against appellee Felix Icao. So ordered.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.

G.R. No. L-16439

July 20, 1961

ANTONIO
GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano
H.
de
A.P. Salvador for respondents.
REYES, J.B.L., J.:

Joya

for

petitioner.

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 thespes
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-39110

November 28, 1933

ANTONIA
L.
DE
JESUS,
vs.
CESAR SYQUIA, defendant-appellant.
Jose
Sotelo
for
Vicente J. Francisco for defendant-appellant.

ET

AL., plaintiff-appellant,

Saturday,
February 14, 1931

1:30

p.

m.

Rev. FATHER,
plaintiffs-appellants.

The baby due in June is mine and I should like for my name to be given to it.
CESAR SYQUIA

STREET, J.:
This action was instituted in the Court of First Instance of Manila by Antonia
Loanco de Jesus in her own right and by her mother, Pilar Marquez, as next
friend and representative of Ismael and Pacita Loanco, infants, children of the
first-named plaintiff, for the purpose of recovering from the defendant, Cesar
Syquia, the sum of thirty thousand pesos as damages resulting to the firstnamed plaintiff from breach of a marriage promise, to compel the defendant to
recognize Ismael and Pacita as natural children begotten by him with Antonia,
and to pay for the maintenance of the three the amount of five hundred pesos
per month, together with costs. Upon hearing the cause, after answer of the
defendant, the trial court erred a decree requiring the defendant to recognize
Ismael Loanco as his natural child and to pay maintenance for him at the rate
of fifty pesos per month, with costs, dismissing the action in other respects.
From this judgment both parties appealed, the plaintiffs from so much of the
decision as denied part of the relief sought by them, and the defendant from
that feature of the decision which required him to recognize Ismael Loanco
and to pay for his maintenance.
At the time with which we are here concerned, the defendant, Cesar Syquia
was of the age of twenty-three years, and an unmarried scion of the prominent
family in Manila, being possessed of a considerable property in his own right.
His brother-in-law, Vicente Mendoza is the owner of a barber shop in Tondo,
where the defendant was accustomed to go for tonsorial attention. In the
month of June Antonia Loanco, a likely unmarried girl of the age of twenty
years, was taken on as cashier in this barber shop. Syquia was not long in
making her acquaintance and amorous relations resulted, as a consequence
of which Antonia was gotten with child and a baby boy was born on June 17,
1931. The defendant was a constant visitor at the home of Antonia in the early
months of her pregnancy, and in February, 1931, he wrote and placed in her
hands a note directed to the padre who has expected to christen the baby.
This note was as follows:

The occasion for writing this note was that the defendant was on the eve of his
departure on a trip to China and Japan; and while he was abroad on this visit
he wrote several letters to Antonia showing a paternal interest in the situation
that had developed with her, and cautioning her to keep in good condition in
order that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong, and
promising to return to them soon. The baby arrived at the time expected, and
all necessary anticipatory preparations were made by the defendant. To this
he employed his friend Dr. Crescenciano Talavera to attend at the birth, and
made arrangements for the hospitalization of the mother in Saint Joseph's
Hospital of the City of Manila, where she was cared for during confinement.
When Antonio was able to leave the hospital, Syquia took her, with her mother
and the baby, to a house at No. 551 Camarines Street, Manila, where they
lived together for about a year in regular family style, all household expenses,
including gas and electric light, being defrayed by Syquia. In course of time,
however, the defendant's ardor abated and, when Antonia began to show
signs of a second pregnancy the defendant decamped, and he is now married
to another woman. A point that should here be noted is that when the time
came for christening the child, the defendant, who had charge of the
arrangement for this ceremony, caused the name Ismael Loanco to be given
to him, instead of Cesar Syquia, Jr., as was at first planned.
The first question that is presented in the case is whether the note to the padre,
quoted above, in connection with the letters written by the defendant to the
mother during pregnancy, proves an acknowledgment of paternity, within the
meaning of subsection 1 of article 135 of the Civil Code. Upon this point we
have no hesitancy in holding that the acknowledgment thus shown is sufficient.
It is a universal rule of jurisprudence that a child, upon being conceived,
becomes a bearer of legal rights and capable of being dealt with as a living
person. The fact that it is yet unborn is no impediment to the acquisition of
rights. The problem here presented of the recognition of unborn child is really
not different from that presented in the ordinary case of the recognition of a
child already born and bearing a specific name. Only the means and resources

of identification are different. Even a bequest to a living child requires oral

evidence to connect the particular individual intended with the name used.
It is contended however, in the present case that the words of description used
in the writings before us are not legally sufficient to indemnify the child now
suing as Ismael Loanco. This contention is not, in our opinion, well founded.
The words of recognition contained in the note to the padre are not capable of
two constructions. They refer to a baby then conceived which was expected to
be born in June and which would thereafter be presented for christening. The
baby came, and though it was in the end given the name of Ismael Loanco
instead of Cesar Syquia, Jr., its identity as the child which the defendant
intended to acknowledge is clear. Any doubt that might arise on this point is
removed by the letters Exhibit F, G, H, and J. In these letters the defendant
makes repeated reference to junior as the baby which Antonia, to whom the
letters were addressed, was then carrying in her womb, and the writer urged
Antonia to eat with good appetite in order that junior might be vigorous. In the
last letter (Exhibit J) written only a few days before the birth of the child, the
defendant urged her to take good care of herself and of junior also.
It seems to us that the only legal question that can here arise as to the
sufficiency of acknowledgment is whether the acknowledgment contemplated
in subsection 1 of article 135 of the Civil Code must be made in a single
document or may be made in more than one document, of indubitable
authenticity, written by the recognizing father. Upon this point we are of the
opinion that the recognition can be made out by putting together the
admissions of more than one document, supplementing the admission made
in one letter by an admission or admissions made in another. In the case
before us the admission of paternity is contained in the note to the padreand
the other letters suffice to connect that admission with the child then being
carried by Antonia L. de Jesus. There is no requirement in the law that the
writing shall be addressed to one, or any particular individual. It is merely
required that the writing shall be indubitable.
The second question that presents itself in this case is whether the trial court
erred in holding that Ismael Loanco had been in the uninterrupted possession
of the status of a natural child, justified by the conduct of the father himself,
and that as a consequence, the defendant in this case should be compelled to
acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil
Code. The facts already stated are sufficient, in our opinion, to justify the
conclusion of the trial court on this point, and we may add here that our
conclusion upon the first branch of the case that the defendant had
acknowledged this child in writings above referred to must be taken in

connection with the facts found by the court upon the second point. It is
undeniable that from the birth of this child the defendant supplied a home for
it and the mother, in which they lived together with the defendant. This situation
continued for about a year, and until Antonia became enciente a second time,
when the idea entered the defendant's head of abandoning her. The law fixes
no period during which a child must be in the continuous possession of the
status of a natural child; and the period in this case was long enough to evince
the father's resolution to concede the status. The circumstance that he
abandoned the mother and child shortly before this action was started is
unimportant. The word "continuous" in subsection 2 of article 135 of the Civil
Code does not mean that the concession of status shall continue forever, but
only that it shall not be of an intermittent character while it continues.
What has been said disposes of the principal feature of the defendant's appeal.
With respect to the appeal of the plaintiffs, we are of the opinion that the trial
court was right in refusing to give damages to the plaintiff, Antonia Loanco, for
supposed breach of promise to marry. Such promise is not satisfactorily
proved, and we may add that the action for breach of promise to marry has no
standing in the civil law, apart from the right to recover money or property
advanced by the plaintiff upon the faith of such promise. This case exhibits
none of the features necessary to maintain such an action. Furthermore, there
is no proof upon which a judgment could be based requiring the defendant to
recognize the second baby, Pacita Loanco.
Finally, we see no necessity or propriety in modifying the judgment as to the
amount of the maintenance which the trial court allowed to Ismael Loanco. And
in this connection we merely point out that, as conditions change, the Court of
First Instance will have jurisdiction to modify the order as to the amount of the
pension as circumstances will require.
The judgment appealed from is in all respects affirmed, without costs. So
ordered.
Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.

Separate Opinions

VILLA-REAL, J., dissenting:

The majority opinion is predicated on two grounds: First, that the defendantappellant Cesar Syquia has expressly acknowledged his paternity of the child
Ismael Loanco in an indubitable writing of his; and secondly, that said child
has enjoyed the uninterrupted possession of the status of a natural son of said
defendant-appellant Cesar Syquia, justified by his acts, as required by article
135 of the Civil Code.
The first conclusion is drawn from Exhibits C, F, G, H, and J.
Exhibit C, which is in the handwriting of any signed by the defendant-appellant
Cesar Syquia, reads as follows:
Sabado, 1.30 p. m. 14 febrero, 1931
Rev. PADRE:
La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de
a la criatura.
(Fdo.) CESAR SYQUIA
Exhibit F, G, H, and j, which are letters written by the said defendant-appellant
Cesar Syquia to plaintiff-appellee Antonia L. de Jesus prior to the birth of the
child contain the following expressions:
Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el
de junior tambien no lo manches. A cuerdate muy bien Toni que es por ti y
por junior volvere alli pronto. ..."
Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..."
Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come
tu mucho. ... ."
Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."
Article 135, number 1, provides as follows:
ART. 135. The father may be compelled to acknowledge his natural child in
the following cases:
1. When an indisputable paper written by him, expressly acknowledging his
paternity, is in existence.

Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article,
says:
Con arreglo al articulo que comentamos, no puede haber cuestion acerca de
si es posible admitir por otro medio la prueba de la paternidad natural.
Entendemos que no, porquel el articulo es terminante y la intencion de la ley
mas terminante aun. Se establecio en la base 5.a que "no se admitira
investigacion de la paternidad sino en los casos de delito, o cuando exista
escrito del padre en el que conste su voluntad indubitada de reconocer por
suyo al hijo, deliberadamente expresada con ese fin, o cuando medie
posesion de estado", y esto mismo es lo que se ordena en el presente articulo.
No puede, pues, prosperar la demanda para obligar al padre al
reconocimiento de un hijo natural, aunque solo se limite a pedir alimentos, si
no se funda en el reconocimiento expreso del padre hecho por escrito, en la
posesion constante de estado de hijo natural o en sentencia firme recaida en
causa por de delito violacin, estupro o rapto. El escrito y la sentencia habran
de acompaarse a la demandada, y no puede admitirse otra prueba que la
conducente a justificar que el escrito es indubitadamente del padre que en el
reconozca su paternidad, o la relativa a los actos directos del mismo padre o
de su familia, que demuestren la posesion continua de dicho estado. Para la
prueba de estos dos hechos podran utilizarse todos los medios que permite la
Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por cualquier
otro concepto se dirija a la investigacion de la paternidad.
xxx

xxx

xxx

En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente

que no basta hacerlo por incidencia; es indespensable que se consigne en el
escrito la voluntad indubitada, clara y terminante del padre, de reconocer por
suyo al hijo, deliberadamente expresada con este fin, como se ordena an la
base 5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888;
de suerte que el escrito, aunque contenga otros particulares, como sucede en
los testamentos, ha de tener por objecto el reconocimiento deliberado y
expreso del hijo natural. No llena, pues, ese objecto la manifestacion que
incidentalmente haga el padre de ser hijo natural suyo la persona a quien se
refiera, y mucho menos el dar a una persona el titulo y tratamiento de hijo en
cartas familiares. Sin embrago, en cada caso decidiran los un modo
suficientemente expresivo la paternidad, servira de base para acreditar, en
union con otros datos, la posesion contante del estado del hijo a los efectos
de este articulo, y con arreglo a su numero 2.

Let it first be noted that the law prohibits the investigation of paternity (Borres
and Barza vs. Municipality of Panay, 42 Phil., 643; Donado vs. Menendez
Donado, 55 Phil., 861). The only exceptions to this rule are those established
in article 135 of the Civil Code quoted above, the first of which is that the father
may be compelled to acknowledge his paternity, "When an indubitable writing
of his exists in which he expressly acknowledge his paternity." The writing that
is required by said provision must be complete in itself and by itself, and must
contain all the statements that are necessary to constitute a full and clear
acknowledgment by a father of his paternity of a child, in order that it may serve
as a basis for compelling him to acknowledge said child should be afterwards
deny his paternity. If several writings put together, each not being complete in
itself, should be necessary in order to obtain a full and complete expression of
acknowledgment by a father of his paternity of a child, the general prohibition
to investigate paternity would be violated.

2. When the child has been in the uninterrupted possession of the status of a
natural child of the defendant father, justified by the conduct of the father
himself or that of his family.

By the mere reading of all said letters, the one addressed to a priest and the
others to the herein plaintiff-appellee, Antonia L. de Jesus, the reader cannot
ascertain which is the "creature that is coming on June", which the defendantappellant, Cesar Syquia, says in the said letter addressed to the priest is his,
nor who is the "junior" that he recommends to said Antonia L. de Jesus to take
good care of, as there is nothing in anyone of said letters from which it may be
inferred that Antonia L. de Jesus was enciente at the time, that the "junior" was
the being she was carrying in her womb, and that it was the "creature that is
coming in June." To connect all these facts it was necessary to prove that
Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result
of such relations the woman became pregnant, and that she gave birth to a
boy in June 1931. All this certainly constitutes an investigation of the paternity
of Cesar Syquia of said child outside of the documents, which is prohibited by
law.

Despues del nacimiento del demandante Ismael Loanco, el demandado

estuvo viviendo con este y con la demandante Antonio L. de Jesus en la casa
No. 551 de la Calle Camarines, Manila, entregando a dicha demandante el
dinero para los gastos de casa y el pago del consumo de gas y luz electrica,
habiendo firmado el contrato para el suministro del fluido electrico en dicha
casa.

Either taken alone therefore, or in connection with Exhibits F, G, H, and J,

Exhibit C is insufficient to constitute a "indubitable writing of Cesar Syquia, in
which he expressly acknowledges his paternity of the child Ismael Loanco," as
required by number 1 of article 135 of the Civil Code.
As to the second ground of the decision of the majority, number 2 of article
135 of the Civil Code provides:
ART. 135. The father may be compelled to acknowledge his natural child in
the following cases:
xxx

xxx

xxx

The majority decision bases its connection on the second point on Exhibits C,
F, G, H, and J and the following facts, as found by the lower court in its
decision:
Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el
demandado Cesar Syquia llamo a su comprovinciano Dr. Crescenciano
Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila,
para que asistiera a aquella en su parto y a ese efecto llevo a la demandante
Antonia L. de Jesus acompaado del Dr. Talavera al Hospital San Jose, de
esta Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr.
Talavera, que firmo el certificado de necimiento Exhibit E.

Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing

that Ismael Loanco has enjoyed the continuous possession of the status of a
natural child, because being of prior date to the birth of said child they can not
be considered as direct acts of Cesar Syquia showing possession of the status
of natural child, as no human being can enjoy such possession until he be born
with legal capacity for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738;
Granados vs. Leynes, G.R. No. 31224, promulgated September 9, 1929, not
reported).
It must also be stated that Cesar Syquia refused to allow his name to be given
to the child Ismael when it was baptized, so that the name of its mother,
Loanco, had to be given to it.
The facts which were found by the court below to have been proved by the
testimony of the witnesses during the trial, are not sufficient to constitute the
uninterrupted possession of the status of Ismael Loanco as natural child of
said Cesar Syquia, in the light of the following authorities:
In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said:

. . . Confining ourselves to the acts proved to have been performed by Don

Telesforo, we find that he visited the mother of the plaintiff; that he paid money
for her support; that he paid money for the support of the plaintiff; that he hold
one witness that the plaintiff was his son; that the plaintiff called him "Papa,"
and that Don Telesforo answered to this designation; that when the plaintiff
visited Don Telesforo he kissed his hand; that Don Telesforo wrote letters to
him; that he paid his fees for instruction in school, and secured him a position
in a commercial house.
xxx

xxx

xxx

All these facts taken together are not sufficient to show that plaintiff possesses
continuously the status of a natural child. They may have a tendency to show
that Don Telesforo was the father of the child, but that it is not sufficient. It is
not sufficient that the father recognize the child as his. By the express terms
of article 135 that recognition must appear either in writing, made by the father,
or it must appear in acts which show that the son has possessed continuously
the status of a natural child. No recognition by the father of the child which
comes short of the requirements of these two paragraphs is sufficient. It must
appear that it was the intention of the father to recognize the child as to give
him that status, and that the acts performed by him were done with that
intention.
Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of
the Supreme Court of Spain says:
En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion
de estado de hijo natural se requiere que los actos sean de tal naturaleza que
revelen, a la vez que el convencimiento de la paternidad, la voluntad
ostensible de tener y tratar al hijo como tal en las relaciones sociales y de la
vida, y esto no accidentalmente, sino continuedamente, porque en tal
supuesto los actos tiene el mismo valor que el reconocimiento
expreso.lawphil.net
En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que
estima que el hecho de que dos nodrizas criaron a otros tantos nios,
sufragando el gasto el demandado, quien ademas iba a casa de la
demandante, los besada, los llamaba hijos y encargaba para los mismos el
mayor cuidado; el de que subvenia a las necesidades de la madre y de los
seis hijos que la nacieron, el primero de los cuales se llamaba como el padre;
y el de que los porteros de la casa donde vivio la actora sabian que el finado
visitaba a esta, se lamentaba de la mucha familia que tenia y era tenido en el
concepto publico como padre de los menores, no son suficientes para fundar

la declaracion de paternidad, pues no es legal confundir actos que puedan

revelar mas o menos la presuncion o convencimiento en que una persona este
de su paternidad con relacion a hijos naturales, con los que demuestren su
proposito de poner a estos hijos en la posesion de tal estado.
It will thus be seen from the foregoing discussion and authorities that the herein
defendant-appellant Cesar Syquia cannot be compelled to acknowledge the
child Ismael Loanco as his natural son because there exists not an indubitable
writing of his in which he expressly acknowledges his paternity of said child,
and because the said child has not enjoyed the uninterrupted possession of
the
status
of
a
natural
child
of
the
said
defendant-appellant, justified by his own conduct or that of his family, as
required by article 135 of the Civil Code.
The decision appealed from should, therefore, be reversed and the complaint
dismissed.

Avancea, C.J. and Imperial, J., concur.

G.R. No. L-770

April 27, 1948

ANGEL
T.
LIMJOCO, petitioner,
vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and
Delfin
Bienvenido A. Tan for respondent.

L.

Gonzales

for

petitioner.

HILADO, J.:
Under date of May 21, 1946, the Public Service Commission, through Deputy
Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro
O. Fragante, as applicant for a certificate of public convenience to install,
maintain and operate an ice plant in San Juan, Rizal, whereby said
commission held that the evidence therein showed that the public interest and
convenience will be promoted in a proper and suitable manner "by authorizing
the operation and maintenance of another ice plant of two and one-half (2-)
tons in the municipality of San Juan; that the original applicant Pedro O.
Fragante was a Filipino Citizen at the time of his death; and that his intestate

estate is financially capable of maintaining the proposed service". The

commission, therefore, overruled the opposition filed in the case and ordered
"that under the provisions of section 15 of Commonwealth Act No. 146, as
amended a certificate of public convenience be issued to the Intestate Estate
of the deceased Pedro Fragante, authorizing said Intestate Estate through its
Special or Judicial Administrator, appointed by the proper court of competent
jurisdiction, to maintain and operate an ice plant with a daily productive
capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and
to sell the ice produced from said plant in the said Municipality of San Juan
and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to
the conditions therein set forth in detail (petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in accordance with
law.
2. The decision of the Public Service Commission is not reasonably supported
by evidence.
3. The Public Service Commission erred in not giving petitioner and the Ice
and Cold Storage Industries of the Philippines, Inc., as existing operators, a
reasonable opportunity to meet the increased demand.
4. The decision of the Public Service Commission is an unwarranted departure
from its announced policy with respect to the establishment and operation of
ice plant. (Pp. 1-2, petitioner's brief.)
In his argument petitioner contends that it was error on the part of the
commission to allow the substitution of the legal representative of the estate
of Pedro O. Fragante for the latter as party applicant in the case then pending
before the commission, and in subsequently granting to said estate the
certificate applied for, which is said to be in contravention of law.
If Pedro O. Fragante had not died, there can be no question that he would
have had the right to prosecute his application before the commission to its
final conclusion. No one would have denied him that right. As declared by the
commission in its decision, he had invested in the ice plant in question P
35,000, and from what the commission said regarding his other properties and
business, he would certainly have been financially able to maintain and
operate said plant had he not died. His transportation business alone was
netting him about P1,440 a month. He was a Filipino citizen and continued to
be such till his demise. The commission declared in its decision, in view of the

evidence before it, that his estate was financially able to maintain and operate
the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said
application to its conclusion was one which by its nature did not lapse through
his death. Hence, it constitutes a part of the assets of his estate, for which a
right was property despite the possibility that in the end the commission might
have denied application, although under the facts of the case, the commission
granted the application in view of the financial ability of the estate to maintain
and operate the ice plant. Petitioner, in his memorandum of March 19, 1947,
admits (page 3) that the certificate of public convenience once granted "as a
rule, should descend to his estate as an asset". Such certificate would certainly
be property, and the right to acquire such a certificate, by complying with the
requisites of the law, belonged to the decedent in his lifetime, and survived to
his estate and judicial administrator after his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of
land and during the life of the option he died, if the option had been given him
in the ordinary course of business and not out of special consideration for his
person, there would be no doubt that said option and the right to exercise it
would have survived to his estate and legal representatives. In such a case
there would also be the possibility of failure to acquire the property should he
or his estate or legal representative fail to comply with the conditions of the
option. In the case at bar Pedro O. Fragrante's undoubted right to apply for
and acquire the desired certificate of public convenience the evidence
established that the public needed the ice plant was under the law
conditioned only upon the requisite citizenship and economic ability to
maintain and operate the service. Of course, such right to acquire or obtain
such certificate of public convenience was subject to failure to secure its
objective through nonfulfillment of the legal conditions, but the situation here
is no different from the legal standpoint from that of the option in the illustration
just given.
Rule 88, section 2, provides that the executor or administrator may bring or
defend actions, among other cases, for the protection of the property or rights
of the deceased which survive, and it says that such actions may be brought
or defended "in the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the executor
or administrator, the making of an inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his possession or
knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366,
367) the present chief Justice of this Court draws the following conclusion from
the decisions cited by him:
Therefore, unless otherwise expressly provided by law, any action affecting
the property or rights(emphasis supplied) of a deceased person which may be
brought by or against him if he were alive, may likewise be instituted and
prosecuted by or against the administrator, unless the action is for recovery of
money, debt or interest thereon, or unless, by its very nature, it cannot survive,
because death extinguishes the right . . . .
It is true that a proceeding upon the application for a certificate of public
convenience before the Public Service Commission is not an "action". But the
foregoing provisions and citations go to prove that the decedent's rights which
by their nature are not extinguished by death go to make up a part and parcel
of the assets of his estate which, being placed under the control and
management of the executor or administrator, can not be exercised but by him
in representation of the estate for the benefit of the creditors, devisees or
legatees, if any, and the heirs of the decedent. And if the right involved
happens to consist in the prosecution of an unfinished proceeding upon an
application for a certificate of public convenience of the deceased before the
Public Service Commission, it is but logical that the legal representative be
empowered and entitled in behalf of the estate to make the right effective in
that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336
of the Civil Code, respectively, consider as immovable and movable
things rights which are not material. The same eminent commentator says in
the cited volume (p. 45) that article 336 of the Civil Code has been deficiently
drafted in that it is not sufficiently expressive of all incorporeal rights which are
also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term,
property includes, among other things, "an option", and "the certificate of the
railroad commission permitting the operation of a bus line", and on page 748
of the same volume we read:
However, these terms (real property, as estate or interest) have also been
declared to include every species of title, inchoate or complete, and
embrace rights which lie in contract, whether executory or executed.
(Emphasis supplied.)

Another important question raised by petitioner is whether the estate of Pedro

O. Fragrante is a "person" within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine
in the jurisdiction of the State of Indiana:
As the estate of the decedent is in law regarded as a person, a forgery
committed after the death of the man whose name purports to be signed to the
instrument may be prosecuted as with the intent to defraud the estate.
Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before it a case
of forgery committed after the death of one Morgan for the purpose of
defrauding his estate. The objection was urged that the information did not
aver that the forgery was committed with the intent to defraud any person. The
Court, per Elliott, J., disposed of this objection as follows:
. . . The reason advanced in support of this proposition is that the law does not
regard the estate of a decedent as a person. This intention (contention) cannot
prevail. The estate of the decedent is a person in legal contemplation. "The
word "person" says Mr. Abbot, "in its legal signification, is a generic term, and
includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs.
Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.)
404. It said in another work that 'persons are of two kinds: natural and artificial.
A natural person is a human being. Artificial persons include (1) a collection or
succession of natural persons forming a corporation; (2) a collection of
property to which the law attributes the capacity of having rights and duties.
The latter class of artificial persons is recognized only to a limited extent in our
law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje &
L. Law Dict. 954. Our own cases inferentially recognize the correctness of the
definition given by the authors from whom we have quoted, for they declare
that it is sufficient, in pleading a claim against a decedent's estate, to designate
the defendant as the estate of the deceased person, naming him. Ginn vs.
Collins, 43 Ind. 271. Unless we accept this definition as correct, there would
be a failure of justice in cases where, as here, the forgery is committed after
the death of a person whose name is forged; and this is a result to be avoided
if it can be done consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the estate of a
decedent should be regarded as an artificial person. It is the creation of law for
the purpose of enabling a disposition of the assets to be properly made, and,
although natural persons as heirs, devises, or creditors, have an interest in the
property, the artificial creature is a distinct legal entity. The interest which

10

natural persons have in it is not complete until there has been a due
administration; and one who forges the name of the decedent to an instrument
purporting to be a promissory note must be regarded as having intended to
defraud the estate of the decedent, and not the natural persons having diverse
interests in it, since ha cannot be presumed to have known who those persons
were, or what was the nature of their respective interest. The fraudulent intent
is against the artificial person, the estate and not the natural persons
who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)
In the instant case there would also be a failure of justice unless the estate of
Pedro O. Fragrante is considered a "person", for quashing of the proceedings
for no other reason than his death would entail prejudicial results to his
investment amounting to P35,000.00 as found by the commission, not
counting the expenses and disbursements which the proceeding can be
presumed to have occasioned him during his lifetime, let alone those defrayed
by the estate thereafter. In this jurisdiction there are ample precedents to show
that the estate of a deceased person is also considered as having legal
personality independent of their heirs. Among the most recent cases may be
mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein
the principal plaintiff was the estate of the deceased Lazaro Mota, and this
Court gave judgment in favor of said estate along with the other plaintiffs in
these words:
. . . the judgment appealed from must be affirmed so far as it holds that
defendants Concepcion and Whitaker are indebted to he plaintiffs in the
amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the Code of
Civil Procedure, the heirs of a deceased person were considered in
contemplation of law as the continuation of his personality by virtue of the
provision of article 661 of the first Code that the heirs succeed to all the rights
and obligations of the decedent by the mere fact of his death. It was so held
by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment
of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as
held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well
as in many others decided by this Court after the innovations introduced by
the Code of Civil Procedure in the matter of estates of deceased persons, it
has been the constant doctrine that it is the estate or the mass of property,
rights and assets left by the decedent, instead of the heirs directly, that
becomes vested and charged with his rights and obligations which survive
after his demise.

The heirs were formerly considered as the continuation of the decedent's

personality simply by legal fiction, for they might not have been flesh and blood
the reason was one in the nature of a legal exigency derived from the
principle that the heirs succeeded to the rights and obligations of the decedent.
Under the present legal system, such rights and obligations as survive after
death have to be exercised and fulfilled only by the estate of the deceased.
And if the same legal fiction were not indulged, there would be no juridical
basis for the estate, represented by the executor or administrator, to exercise
those rights and to fulfill those obligations of the deceased. The reason and
purpose for indulging the fiction is identical and the same in both cases. This
is why according to the Supreme Court of Indiana in Billings vs. State, supra,
citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized
by law figures "a collection of property to which the law attributes the capacity
of having rights and duties", as for instance, the estate of a bankrupt or
deceased person.
Petitioner raises the decisive question of whether or not the estate of Pedro O.
Fragrante can be considered a "citizen of the Philippines" within the meaning
of section 16 of the Public Service Act, as amended, particularly the proviso
thereof expressly and categorically limiting the power of the commission to
issue certificates of public convenience or certificates of public convenience
and necessity "only to citizens of the Philippines or of the United States or to
corporations, copartnerships, associations, or joint-stock companies
constituted and organized under the laws of the Philippines", and the further
proviso that sixty per centum of the stock or paid-up capital of such entities
must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for
the legal fiction by which, for certain purposes, the estate of the deceased
person is considered a "person" is the avoidance of injustice or prejudice
resulting from the impossibility of exercising such legal rights and fulfilling such
legal obligations of the decedent as survived after his death unless the fiction
is indulged. Substantially the same reason is assigned to support the same
rule in the jurisdiction of the State of Indiana, as announced in Billings vs.
State, supra, when the Supreme Court of said State said:
. . . It seems reasonable that the estate of a decedent should be regarded as
an artificial person. it is the creation of law for the purpose of enabling a
disposition of the assets to be properly made . . . .
Within the framework and principles of the constitution itself, to cite just one
example, under the bill of rights it seems clear that while the civil rights

11

guaranteed therein in the majority of cases relate to natural persons, the term
"person" used in section 1 (1) and (2) must be deemed to include artificial or
juridical persons, for otherwise these latter would be without the constitutional
guarantee against being deprived of property without due process of law, or
the immunity from unreasonable searches and seizures. We take it that it was
the intendment of the framers to include artificial or juridical, no less than
natural, persons in these constitutional immunities and in others of similar
nature. Among these artificial or juridical persons figure estates of deceased
persons. Hence, we hold that within the framework of the Constitution, the
estate of Pedro O. Fragrante should be considered an artificial or juridical
person for the purposes of the settlement and distribution of his estate which,
of course, include the exercise during the judicial administration thereof of
those rights and the fulfillment of those obligations of his which survived after
his death. One of those rights was the one involved in his pending application
before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an
injustice would ensue from the opposite course.

person herein, we can find no justification for refusing to declare a like fiction
as to the extension of his citizenship for the purposes of this proceeding.

How about the point of citizenship? If by legal fiction his personality is

considered extended so that any debts or obligations left by, and surviving,
him may be paid, and any surviving rights may be exercised for the benefit of
his creditors and heirs, respectively, we find no sound and cogent reason for
denying the application of the same fiction to his citizenship, and for not
considering it as likewise extended for the purposes of the aforesaid unfinished
proceeding before the Public Service Commission. The outcome of said
proceeding, if successful, would in the end inure to the benefit of the same
creditors and the heirs. Even in that event petitioner could not allege any
prejudice in the legal sense, any more than he could have done if Fragrante
had lived longer and obtained the desired certificate. The fiction of such
extension of his citizenship is grounded upon the same principle, and
motivated by the same reason, as the fiction of the extension of personality.
The fiction is made necessary to avoid the injustice of subjecting his estate,
creditors and heirs, solely by reason of his death to the loss of the investment
amounting to P35,000, which he has already made in the ice plant, not
counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.

Decision affirmed, without costs. So ordered.

We can perceive no valid reason for holding that within the intent of the
constitution (Article IV), its provisions on Philippine citizenship exclude the
legal principle of extension above adverted to. If for reasons already stated our
law indulges the fiction of extension of personality, if for such reasons the
estate of Pedro O. Fragrante should be considered an artificial or juridical

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view
of the evidence of record, he would have obtained from the commission the
certificate for which he was applying. The situation has suffered but one
change, and that is, his death. His estate was that of a Filipino citizen. And its
economic ability to appropriately and adequately operate and maintain the
service of an ice plant was the same that it received from the decedent himself.
In the absence of a contrary showing, which does not exist here, his heirs may
be assumed to be also Filipino citizens; and if they are not, there is the simple
expedient of revoking the certificate or enjoining them from inheriting it.
Upon the whole, we are of the opinion that for the purposes of the prosecution
of said case No. 4572 of the Public Service Commission to its final conclusion,
both the personality and citizenship of Pedro O. Fragrante must be deemed
extended, within the meaning and intent of the Public Service Act, as
amended, in harmony with the constitution: it is so adjudged and decreed.

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions
PERFECTO, J., dissenting:
Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a
certificate of public convenience to operate an ice plant in San Juan, Rizal.
The limitation is in accordance with section 8 of Article XIV of the Constitution
which provides
No franchise, certificate, or any other form of authorization for the operation of
a public utility shall be granted except to citizens of the Philippines or to
corporations or other entities organized under the laws of the Philippines, sixty
per centum of the capital of which is owned by citizens of the Philippines, nor
such franchise, certificate or authorization be exclusive in character or for a
longer period than fifty years. No franchise granted to any individual, firm or
corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by Congress when the public interest so requires.

12

The main question in this case is whether the estate of Pedro O. Fragrante
fulfills the citizenship requirement. To our mind, the question can be restated
by asking whether the heirs of Pedro O. Fragrante fulfill the citizenship
requirement of the law.

vs.
QUALITY PLASTIC PRODUCTS, INC., defendant-appellee.

The estate is an abstract entity. As such, its legal value depends on what it
represents. It is a device by which the law gives a kind of personality and unity
to undetermined tangible persons, the heirs. They inherit and replace the
deceased at the very moment of his death. As there are procedural requisites
for their identification and determination that need time for their compliance, a
legal fiction has been devised to represent them. That legal fiction is the estate,
a liquid condition in process of solidification.

Eugenio T. Estavillo for appellee.

The estate, therefore, has only a representative value. What the law calls
estate is, a matter of fact, intended to designate the heirs of the deceased. The
question, therefore, in this case, boils down to the citizenship of the heirs of
Fragrante.
There is nothing in the record to show conclusively the citizenship of the heirs
of Fragrante. If they are Filipino citizens, the action taken by the Public Service
Commission should be affirmed. If they are not, it should be reversed.
Petitioner alleges that the estate is just a front or dummy for aliens to go around
the citizenship constitutional provision. It is alleged that Gaw Suy, the special
administrator of the estate, is an alien.
We are of the opinion that the citizenship of the heirs of Fragrante should be
determined by the Commission upon evidence that the party should be
present. It should also determine the dummy question raised by the petitioner.
We are of opinion and so vote that the decision of the Public Service
Commission of May 21, 1946, be set aside and that the Commission be
instructed to receive evidence of the above factual questions and render a new
decision accordingly.

Castillo & Castillo for appellants.

AQUINO, J.:p
On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case
No.
T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria,
Santiago Laurencio, Marcelino Sumalbag and Juana Darang to pay solidarity
Quality Plastic Products, Inc. the sum of P3,667.03 plus the legal rate of
interest from November, 1958. The lower court directed that in case the
defendants failed to pay the said amount before its decision became final, then
Quality Plastic Products, Inc. "is hereby authorized to foreclose the bond,
Exhibit A, in accordance with law, for the satisfaction of the judgment". (Under
that bond the four sureties bound themselves to answer solidarity for the
obligations of the principal, Vicente Soliven and certain real properties of the
sureties were "given as security for" their undertaking).
Upon defendants' failure to pay the amount of the judgment and after the
decision had become final, the lower court, on motion of Quality Plastic
Products, Inc., ordered the "foreclosure" of the surety bond and the sale at
public auction of the land of Pedro Oria which he had given as security under
the bond. Oria's land, which was covered by Original Certificate of Title No.
28732 and has an area of nine and six-tenths hectares, was levied upon and
sold by the sheriff at public auction on September 24, 1962. The sale was
confirmed by the lower court in its order of November 20, 1962.

G.R. No. L-27956 April 30, 1976

It turned out that Oria died on April 23, 1959 or long before June 13, 1960
when the action was filed. Oria's death was not known to Quality Plastic
Products, Inc. Nor were the representatives of Quality Plastic Products, Inc.
aware that in the same Tayug court Special Proceeding No. T-212, Testate
Estate of the deceased Pedro Oria, was pending.

DIONISIO DUMLAO, in his own behalf and in his capacity as

Administrator of the Testate Estate of the late Pedro Oria; FAUSTA
DUMLAO, AMADO DUMLAO, and BENJAMIN DUMLAO, plaintiffsappellants,

The summons and copies of the complaint for the five defendants in Civil Case
No.
T-662 had been personally served on June 24, 1960 by a deputy sheriff on
Soliven, the principal in the bond, who acknowledged such service by signing

13

on the back of the original summons in his own behalf and again signing for
his co-defendants.
On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed
Dumlao and all testamentary heirs in Oria's duly probated will, sued Quality
Plastic Products, Inc., also in the Tayug court for the annulment of the
judgment against Oria and the execution against his land. (Dionisio Dumlao
also sued in his capacity as administrator of Oria's testate estate).
The ground for annulment was lack of jurisdiction over the person of the
deceased Oria (Civil Case No. T- 873). It was only when Quality Plastic
Products, Inc. received the summons in Civil Case No. T-873 that it learned
that Oria was already dead at the time the prior case, Civil Case No. T-662,
was filed.
Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware
of the suit against Soliven and his sureties and that the said heirs were
estopped to question the court's jurisdiction over Oria.
After hearing the lower court held that it acquired jurisdiction over Soliven and
the other defendants in Civil Case No. T-662 by reason of their voluntary
appearance. It reasoned out that Soliven acted in bad faith because he did not
apprise the court that Oria was dead. It specifically ruled that "it had acquired
jurisdiction over the person" of Oria and that the judgment was valid as to him.
From that decision the plaintiffs appealed.
The four assignments of error of appellants Dumlao may be boiled down to the
issue as to the validity of the lower court's judgment against the deceased
Pedro Oria who, being already in the other world, was never served with
summons.
There is no difficulty in resolving that issue. Since no jurisdiction was acquired
over Oria, the judgment against him is a patent nullity (Ang Lam vs. Rosillosa
and Santiago, 86 Phil. 447; Asuncion vs. Nieto, 4 Phil. 97; Gorostiaga vs.
Sarte, 68 Phil. 4).
As far as Oria was concerned, the lower court's judgment against him in Civil
Case No. T-662 is void for lack of jurisdiction over his person. He was not, and
he could not have been, validly served with summons. He had no more civil
personality. His juridical capacity, which is the fitness to be the subject of legal
relations, was lost through death. (Arts. 37 and 42, Civil Code).
The lower court erred in ruling that since Soliven's counsel also appeared as
counsel for Oria, there was a voluntary appearance which enabled the court

to acquire jurisdiction over Oria, as contemplated in section 23, Rule 14 of the

Revised Rules of Court. Soliven's counsel could not have validly appeared for
a dead co-defendant. Estoppel has no application to this case.
But from the fact that appellants Dumlao had to sue Quality Plastic Products,
Inc. in order to annul the judgment against Oria, it does not follow that they are
entitled to claim attorney's fees against that corporation. The parties herein
agreed in their stipulation of facts that Quality Plastic Products, Inc. was
unaware of Oria's death. Appellants Dumlao in effect conceded that the
appellee acted in good faith in joining Oria as a co-defendant.
WHEREFORE, the lower court's decision is reversed and set aside. Its
judgment in Civil Case No. T-662 against Pedro Oria is declared void for lack
of jurisdiction. The execution sale of Oria's land covered by OCT No. 28732 is
also void. No costs.
SO ORDERED.
Fernando, Barredo, Antonio and Concepcion, Jr., JJ., concur.

G.R. No. L-21289 October 4, 1971

MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and LAU YUEN
YEUNG, petitioners-appellants,
vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.
Aruego, Mamaril & Associates for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Frine' C. Zaballero and Solicitor Sumilang V. Bernardo for respondentappellee.

BARREDO, J.:
Appeal from the following decision of the Court of First Instance of Manila in
its Civil Case No. 49705 entitled Moy Ya Lim Yao, etc., et al. vs. The
Commissioner of Immigration which, brief as it is, sufficiently depicts the
factual setting of and the fundamental issues involved in this case thus:
In the instant case, petitioners seek the issuance of a writ of injunction against
the Commissioner of Immigration, "restraining the latter and/or his authorized

14

representative from ordering plaintiff Lau Yuen Yeung to leave the Philippines
and causing her arrest and deportation and the confiscation of her bond, upon
her failure to do so."

Effect of the naturalization on wife and children. Any woman who is now or
may hereafter be married to a citizen of the Philippines, and who might herself
be lawfully naturalized shall be deemed a citizen of the Philippines.

The prayer for preliminary injunction embodied in the complaint, having been
denied, the case was heard on the merits and the parties submitted their
respective evidence.

The above-quoted provision is clear and its import unequivocal and hence it
should be held to mean what it plainly and explicitly expresses in unmistakable
terms. The clause "who might herself be lawfully naturalized" incontestably
implies that an alien woman may be deemed a citizen of the Philippines by
virtue of her marriage to a Filipino citizen only if she possesses all the
qualifications and none of the disqualifications specified in the law, because
these are the explicit requisites provided by law for an alien to be naturalized.
(Lee Suan Ay, Alberto Tan and Lee Chiao vs. Emilio Galang, etc., G. R. No.
L-11855). However, from the allegation of paragraph 3 of the complaint, to wit:

The facts of the case, as substantially and correctly stated by the Solicitor
General are these:
On February 8, 1961, Lau Yuen Yeung applied for a passport visa to enter the
Philippines as a non-immigrant. In the interrogation made in connection with
her application for a temporary visitor's visa to enter the Philippines, she stated
that she was a Chinese residing at Kowloon, Hongkong, and that she desired
to take a pleasure trip to the Philippines to visit her great (grand) uncle Lau
Ching Ping for a period of one month (Exhibits "l," "1-a," and "2"). She was
permitted to come into the Philippines on March 13, 1961, and was permitted
to stay for a period of one month which would expire on April 13, 1961. On the
date of her arrival, Asher Y, Cheng filed a bond in the amount of P1,000.00 to
undertake, among others that said Lau Yuen Yeung would actually depart from
the Philippines on or before the expiration of her authorized period of stay in
this country or within the period as in his discretion the Commissioner of
Immigration or his authorized representative might properly allow. After
repeated extensions, petitioner Lau Yuen Yeung was allowed to stay in the
Philippines up to February 13, 1962 (Exhibit "4"). On January 25, 1962, she
contracted marriage with Moy Ya Lim Yao alias Edilberto Aguinaldo Lim an
alleged Filipino citizen. Because of the contemplated action of respondent to
confiscate her bond and order her arrest and immediate deportation, after the
expiration of her authorized stay, she brought this action for injunction with
preliminary injunction. At the hearing which took place one and a half years
after her arrival, it was admitted that petitioner Lau Yuen Yeung could not write
either English or Tagalog. Except for a few words, she could not speak either
English or Tagalog. She could not name any Filipino neighbor, with a Filipino
name except one, Rosa. She did not know the names of her brothers-in-law,
or sisters-in-law.
Under the facts unfolded above, the Court is of the considered opinion, and so
holds, that the instant petition for injunction cannot be sustained for the same
reason as set forth in the Order of this Court, dated March 19, 1962, the
pertinent portions of which read:

3. That plaintiff Lau Yuen Yeung, Chinese by birth, who might herself be
lawfully naturalized as a Filipino citizen (not being disqualified to become such
by naturalization), is a Filipino citizen by virtue of her marriage on January 25,
1962 to plaintiff MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM, under
the Naturalization Laws of the Philippines.
it can be deduced beyond debate that petitioner Lau Yuen Yeung while
claiming not to be disqualified, does not and cannot allege that she possesses
all the qualifications to be naturalized, naturally because, having been
admitted as a temporary visitor only on March 13, 1961, it is obvious at once
that she lacks at least, the requisite length of residence in the Philippines
(Revised Naturalization Law, Sec. 2, Case No. 2, Sec. 3, Case No. 3).
Were if the intention of the law that the alien woman, to be deemed a citizen
of the Philippines by virtue of marriage to a Filipino citizen, need only be not
disqualified under the Naturalization Law, it would have been worded "and who
herself is not disqualified to become a citizen of the Philippines."
Second, Lau Yuen Yeung, a temporary Chinese woman visitor, whose
authorized stay in the Philippines, after repeated extensions thereof, was to
expire last February 28, 1962, having married her co-plaintiff only on January
25, 1962, or just a little over one month before the expiry date of her stay, it is
evident that said marriage was effected merely for convenience to defeat or
avoid her then impending compulsory departure, not to say deportation. This
cannot be permitted.
Third, as the Solicitor General has well stated:

First, Section 15 of the Revised Naturalization Law provides:

15

5. That petitioner Lau Yuen Yeung, having been admitted as a temporary alien
visitor on the strength of a deliberate and voluntary representation that she will
enter and stay only for a period of one month and thereby secured a visa,
cannot go back on her representation to stay permanently without first
departing from the Philippines as she had promised. (Chung Tiao Bing, et al.
vs. Commissioner of Immigration, G. R. No. L-9966, September 29, 1956; Ong
Se Lun vs. Board of Commissioners, G. R. No. L-6017, September 16, 1954;
Sec. 9, last par., Phil. Immigration Law).
The aforequoted argument of the Solicitor General is well buttressed not only
by the decided cases of the Supreme Court on the point mentioned above, but
also on the very provisions of Section 9, sub-paragraph (g) of the Philippine
Immigration Act of 1940 which reads:
An alien who is admitted as a non-immigrant cannot remain in the Philippines
permanently. To obtain permanent admission, a non-immigrant alien must
depart voluntarily to some foreign country and procure from the appropriate
Philippine Consul the proper visa and thereafter undergo examination by the
Officers of the Bureau of Immigration at a Philippine port of entry for
determination of his admissibility in accordance with the requirements of this
Act. (This paragraph is added by Republic Act 503). (Sec. 9, subparagraph (g)
of the Philippine Immigration Act of 1940).
And fourth, respondent Commissioner of Immigration is charged with the
administration of all laws relating to immigration (Sec. 3, Com. Act No. 613)
and in the performance of his duties in relation to alien immigrants, the law
gives the Commissioner of Immigration a wide discretion, a quasi-judicial
function in determining cases presented to him (Pedro Uy So vs.
Commissioner of Immigration CA-G. R. No. 23336-R, Dec. 15, 1960), so that
his decision thereon may not be disturbed unless he acted with abuse of
discretion or in excess of his jurisdiction.
It may also be not amiss to state that wife Lau Yuen Yeung, while she barely
and insufficiently talk in broken Tagalog and English, she admitted that she
cannot write either language.
The only matter of fact not clearly passed upon by His Honor which could have
some bearing in the resolution of this appeal is the allegation in the brief of
petitioners-appellants, not denied in the governments brief, that "in the hearing
..., it was shown thru the testimony of the plaintiff Lau Yuen Yeung that she
does not possess any of the disqualifications for naturalization." Of course, as
an additional somehow relevant factual matter, it is also emphasized by said
appellants that during the hearing in the lower court, held almost ten months

after the alleged marriage of petitioners, "Lau Yuen Yeung was already
carrying in her womb for seven months a child by her husband."
Appellants have assigned six errors allegedly committed by the court a quo,
thus:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CLAUSE "WHO
MIGHT HERSELF BE LAWFULLY NATURALIZED" (OF SECTION 15,
REVISED NATURALIZATION LAW) INCONTESTABLY IMPLIES THAT AN
ALIEN WOMAN MAY BE DEEMED A CITIZEN OF THE PHILIPPINES BY
VIRTUE OF HER MARRIAGE TO A FILIPINO CITIZEN, ONLY IF SHE
POSSESSES ALL THE QUALIFICATIONS AND NONE OF THE
DISQUALIFICATIONS SPECIFIED IN THE LAW.
II
THE LOWER COURT ERRED IN HOLDING THAT A WOMAN FOREIGNER
WHO DOES NOT POSSESS ANY OF THE DISQUALIFICATIONS FOR
CITIZENSHIP AND WHO MARRIED A FILIPINO CITIZEN IS STILL
CONSIDERED AN ALIEN EVEN AFTER SUCH MARRIAGE AS TO FALL
WITHIN THE REQUIREMENT OF SECTION 9, SUB-PARAGRAPH (9) OF
THE PHILIPPINE IMMIGRATION ACT OF 1940.
III
THE COURT ERRED IN CONCLUDING THAT LAU YUEN YEUNG'S
MARRIAGE TO A FILIPINO CITIZEN WAS ONLY FOR CONVENIENCE,
MERELY BECAUSE THE SAME WAS CELEBRATED JUST OVER A
MONTH BEFORE THE EXPIRY DATE OF HER AUTHORIZED STAY.
IV
THE LOWER COURT ERRED IN FAILING TO FIND THAT THE
COMMISSIONER OF IMMIGRATION ACTED WITH ABUSE OF
DISCRETION OR IN EXCESS OF HIS JURISDICTION WHEN SAID
OFFICER THREATENED TO SEND OUT OF THE COUNTRY PLAINTIFF
LAU YUEN YEUNG WITH WARNING THAT HER FAILURE TO DO SO
WOULD MEAN CONFISCATION OF HER BOND, ARREST AND
IMMEDIATE DEPORTATION, IN SPITE OF THE FACT THAT LAU YUEN
YEUNG IS NOW A FILIPINO CITIZEN.
V

16

THE LOWER COURT ERRED IN DISMISSING PLAINTIFFS-APPELLANTS'

COMPLAINT AND IN REFUSING TO PERMANENTLY ENJOIN THE
COMMISSIONER FROM ORDERING PLAINTIFF LAU YUEN YEUNG TO
LEAVE THE PHILIPPINES AS A TEMPORARY VISITOR WHICH SHE IS
NOT.
VI
THE LOWER COURT ERRED IN REFUSING TO GRANT PLAINTIFFSAPPELLANTS' MOTION FOR PRELIMINARY INJUNCTION EMBODIED IN
THEIR COMPLAINT, IN AN ORDER DATED MARCH 19, 1962. (PAGES 3641, RECORD ON APPEAL) .
We need not discuss these assigned errors separately. In effect, the above
decision upheld the two main grounds of objection of the Solicitor General to
the petition in the court below, viz:
That petitioner Lau Yuen Yeung, having been admitted as a temporary alien
visitor on the strength of a deliberate and voluntary representation that she will
enter and stay only for a period of one month and thereby secured a visa,
cannot go back on her representation to stay permanently without first
departing from the Philippines as she had promised. (Chung Tiao Bing, et al.
vs. Commissioner of Immigration, G.R. No. L-9966, September 29, 1956; Ong
Se Lun vs. Board of Commissioners, G.R. No. L-6017, Sept. 16, 1954, Sec. 9,
last par. Phil. Immigration Law);
That the mere marriage of a Filipino citizen to an alien does not automatically
confer on the latter Philippine citizenship. The alien wife must possess all the
qualifications required by law to become a Filipino citizen by naturalization and
none of the disqualifications. (Lee Suan Ay, Alberto Tan and Lee Chiao vs.
Galang, etc., G. R. No. L-11855, Dec. 25, 1959)
It is obvious from the nature of these objection that their proper resolution
would necessarily cover all the points raised in appellants' assignments of
error, hence, We will base our discussions, more or less, on said objections.
I
The first objection of the Solicitor General which covers the matters dealt with
in appellants' second and fourth assignments of error does not require any
lengthy discussion. As a matter of fact, it seem evident that the Solicitor
General's pose that an alien who has been admitted into the Philippines as a
non-immigrant cannot remain here permanently unless he voluntarily leaves
the country first and goes to a foreign country to secure thereat from the

appropriate Philippine consul the proper visa and thereafter undergo

examination by officers of the Bureau of Immigration at a Philippine port of
entry for determination of his admissibility in accordance with the requirements
of the Philippine Immigration Act of 1940, as amended by Republic Act 503, is
premised on the assumption that petitioner Lau Yuen Yeung is not a Filipino
citizen. We note the same line of reasoning in the appealed decision of the
court a quo. Accordingly, it is but safe to assume that were the Solicitor
General and His Honor of the view that said petitioner had become ipso facto a
Filipina by virtue of her marriage to her Filipino husband, they would have held
her as entitled to assume the status of a permanent resident without having to
depart as required of aliens by Section 9 (g) of the law.
In any event, to set this point at rest, We hereby hold that portion of Section 9
(g) of the Immigration Act providing:
An alien who is admitted as a non-immigrant cannot remain in the Philippines
permanently. To obtain permanent admission, a non-immigrant alien must
depart voluntarily to some foreign country and procure from the appropriate
Philippine consul the proper visa and thereafter undergo examination by the
officers of the Bureau of Immigration at a Philippine port of entry for
determination of his admissibility in accordance with the requirements of this
Act.
does not apply to aliens who after coming into the Philippines as temporary
visitors, legitimately become Filipino citizens or acquire Filipino citizenship.
Such change of nationality naturally bestows upon their the right to stay in the
Philippines permanently or not, as they may choose, and if they elect to reside
here, the immigration authorities may neither deport them nor confiscate their
bonds. True it is that this Court has vehemently expressed disapproval of
convenient ruses employed by alien to convert their status from temporary
visitors to permanent residents in circumvention of the procedure prescribed
by the legal provision already mentioned, such as in Chiong Tiao Bing vs.
Commissioner of Immigration, 99 Phil. 1020, wherein, thru Mr. Justice J.B.L.
Reyes, the Court, reiterating the ruling in Ong Se Lun vs. Board of Immigration
Commissioners, 95 PMI. 785, said:
... It is clear that if an alien gains admission to the Islands on the strength of a
deliberate and voluntary representation that he will enter only for a limited time,
and thereby secures the benefit of a temporary visa, the law will not allow him
subsequently to go back on his representation and stay permanently, without
first departing from the Philippines as he had promised. No officer can relieve
him of the departure requirements of section 9 of the Immigration Act, under

17

the guise of "change" or "correction", for the law makes no distinctions, and no
officer is above the law. Any other ruling would, as stated in our previous
decision, encourage aliens to enter the Islands on false pretences; every alien
so permitted to enter for a limited time, might then claim a right to permanent
admission, however flimsy such claim should be, and thereby compel our
government to spend time, money and effort to examining and verifying
whether or not every such alien really has a right to take up permanent
residence here. In the meanwhile, the alien would be able to prolong his stay
and evade his return to the port whence he came, contrary to what he
promised to do when he entered. The damages inherent in such ruling are selfevident.
On the other hand, however, We cannot see any reason why an alien who has
been here as a temporary visitor but who has in the meanwhile become a
Filipino should be required to still leave the Philippines for a foreign country,
only to apply thereat for a re-entry here and undergo the process of showing
that he is entitled to come back, when after all, such right has become
incontestible as a necessary concomitant of his assumption of our nationality
by whatever legal means this has been conferred upon him. Consider for
example, precisely the case of the minor children of an alien who is
naturalized. It is indubitable that they become ipso facto citizens of the
Philippines. Could it be the law that before they can be allowed permanent
residence, they still have to be taken abroad so that they may be processed to
determine whether or not they have a right to have permanent residence here?
The difficulties and hardships which such a requirement entails and its
seeming unreasonableness argue against such a rather absurd construction.
Indeed, as early as 1957, in Ly Giok Ha vs. Galang, 101 Phil. 459, Mr. Justice
Concepcion, our present Chief Justice, already ruled thus:
... (P)etitioners allege that, upon her marriage to a Filipino, Ly Giok Ha became
also a citizen of the Philippines. Indeed, if this conclusion were correct, it would
follow that, in consequence of her marriage, she had been naturalized as such
citizen, and, hence the decision appealed from would have to be affirmed, for
section 40(c) of Commonwealth Act 613 provides that "in the event of the
naturalization as a Philippine citizen ... of the alien on whose behalf the bond
deposit is given, the bond shall be cancelled or the sum deposited shall be
returned to the depositor or his legal representative." (At. pp. 462-463)
In other words, the applicable statute itself more than implies that the
naturalization of an alien visitor as a Philippine citizen logically produces the
effect of conferring upon him ipso facto all the rights of citizenship including
that of being entitled to permanently stay in the Philippines outside the orbit of

authority of the Commissioner of Immigration vis-a-vis aliens, if only because

by its very nature and express provisions, the Immigration Law is a law only
for aliens and is inapplicable to citizens of the Philippines. In the sense thus
discussed therefore, appellants' second and fourth assignments of error are
well taken.
II
Precisely, the second objection, of the Solicitor General sustained by the trial
judge is that appellant Lau Yuen Yeung's marriage to appellant Moya Lim Yao
alias Edilberto Aguinaldo whose Filipino citizenship is not denied did not have
the effect of making her a Filipino, since it has not been shown that she "might
herself be lawfully naturalized," it appearing clearly in the record that she does
not possess all the qualifications required of applicants for naturalization by
the Revised Naturalization Law, Commonwealth Act 473, even if she has
proven that she does not suffer from any of the disqualifications thereunder. In
other words, the Solicitor General implicitly concedes that had it been
established in the proceedings below that appellant Lau Yuen Yeung
possesses all the qualifications required by the law of applicants for
naturalization, she would have been recognized by the respondent as a
Filipino citizen in the instant case, without requiring her to submit to the usual
proceedings for naturalization.
To be sure, this position of the Solicitor General is in accord with what used to
be the view of this Court since Lee Suan Ay, et al. v. Emilio Galang, etc., et
al., G.R. No. L-11855, promulgated December 23, 1959, 106 Phil.,
706,713, 1 for it was only in Zita Ngo Burca vs. Republic, G.R. NO. L-24252
which was promulgated on January 30, 1967 (19 SCRA 186), that over the
pen of Mr. Justice Conrado Sanchez, this Court held that for an alien woman
who marries a Filipino to be deemed a Filipina, she has to apply for
naturalization in accordance with the procedure prescribed by the Revised
Naturalization Law and prove in said naturalization proceeding not only that
she has all the qualifications and none of the disqualifications provided in the
law but also that she has complied with all the formalities required thereby like
any other applicant for naturalization, 2 albeit said decision is not yet part of our
jurisprudence inasmuch as the motion for its reconsideration is still pending
resolution. Appellants are in effect urging Us, however, in their first and second
assignments of error, not only to reconsider Burca but to even reexamine Lee
Suan Ay which, as a matter of fact, is the prevailing rule, having been reiterated
in all subsequent decisions up to Go Im Ty. 3

18

Actually, the first case in which Section 15 of the Naturalization Law,

Commonwealth Act 473, underwent judicial construction was in the first Ly
Giok Ha case, 4 one almost identical to the one at bar. Ly Giok Ha, a woman
of Chinese nationality, was a temporary visitor here whose authority to stay
was to expire on March 14, 1956. She filed a bond to guaranty her timely
departure. On March 8, 1956, eight days before the expiration of her authority
to stay, she married a Filipino by the name of Restituto Lacasta. On March 9,
1956, her husband notified the Commissioner of Immigration of said marriage
and, contending that his wife had become a Filipina by reason of said
marriage, demanded for the cancellation of her bond, but instead of acceding
to such request, the Commissioner required her to leave, and upon her failure
to do so, on March 16, 1956, the Commissioner confiscated her bond; a suit
was filed for the recovery of the bond; the lower court sustained her contention
that she had no obligation to leave, because she had become Filipina by
marriage, hence her bond should be returned. The Commissioner appealed to
this Court. In the said appeal, Mr. Justice Roberto Concepcion, our present
Chief Justice, spoke for the Court, thus:
The next and most important question for determination is whether her
marriage to a Filipino justified or, at least, excused the aforesaid failure of Ly
Giok Ha to depart from the Philippines on or before March 14, 1956. In
maintaining the affirmative view, petitioners alleged that, upon her marriage to
a Filipino, Ly Giok Ha became, also, a citizen of the Philippines. Indeed, if this
conclusion were correct, it would follow that, in consequence of her marriage,
she had been naturalized as such citizen, and, hence, the decision appealed
from would have to be affirmed, for section 40(c) of Commonwealth Act No.
613 provides that "in the event of the naturalization as a Philippine citizen ...
of the alien on whose behalf the bond deposit is given, the bond shall be
cancelled or the sum deposited shall be returned to the depositor or his legal
representative." Thus the issue boils down to whether an alien female who
marries a male citizen of the Philippines follows ipso facto his political status.
The pertinent part of section 15 of Commonwealth Act No. 473, upon which
petitioners rely, reads:
Any woman who is now or may hereafter be married to a citizen of the
Philippines, and who might herself be lawfully naturalized shall be deemed a
citizen of the Philippines.
Pursuant thereto, marriage to a male Filipino does not vest Philippine
citizenship to his foreign wife, unless she "herself may be lawfully naturalized."
As correctly held in an opinion of the Secretary of Justice (Op. No. 52, series

of 1950),* this limitation of section 15 excludes, from the benefits of

naturalization by marriage, those disqualified from being naturalized as
citizens of the Philippines under section 4 of said Commonwealth Act No.
473, namely:
(a) Persons opposed to organized government or affiliated with any
association or group of persons who uphold and teach doctrines opposing all
organized governments;
(b) Persons defending or teaching the necessity or propriety of violence,
personal assault, or assassination for the success and predominance of their
ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Persons convicted of crimes involving moral turpitude;
(e) Persons suffering from mental alienation or incurable contagious diseases;
(f) Persons who, during the period of their residence in the Philippines, have
not mingled socially with the Filipinos, or who have not evinced a sincere
desire to learn and embrace the customs, traditions, and ideals of the Filipinos;
(g) Citizens or subjects of nations with whom the ... Philippines are at war,
during the period of such war;
(h) Citizens or subjects of a foreign country other than the United States,
whose laws does not grant Filipinos the right to become naturalized citizens or
subjects thereof.
In the case at bar, there is neither proof nor allegation in the pleadings that Ly
Giok Ha does not fall under any of the classes disqualified by law. Moreover,
as the parties who claim that, despite her failure to depart from the Philippines
within the period specified in the bond in question, there has been no breach
thereof, petitioners have the burden of proving her alleged change of political
status, from alien to citizen. Strictly speaking, petitioners have not made out,
therefore a case against the respondents-appellants.
Considering, however, that neither in the administrative proceedings, nor in
the lower court, had the parties seemingly felt that there was an issue on
whether Ly Giok Ha may "be lawfully naturalized," and this being a case of first
impression in our courts, we are of the opinion that, in the interest of equity
and justice, the parties herein should be given an opportunity to introduce
evidence, if they have any, on said issue. (At pp. 462-464.) .

19

As may be seen, although not specifically in so many words, no doubt was left
in the above decision as regards the following propositions: .
1. That under Section 15 of Commonwealth Act 473, the Revised
Naturalization Law, the marriage of an alien woman to a Filipino makes her a
Filipina, if she "herself might be lawfully naturalized";

Philippines prior to or after June 17, 1939, and the marriage not having been
dissolved, and on the assumption that she possesses none of the
disqualifications mentioned in Section 4 of Commonwealth Act No. 473,
follows the citizenship of her husband. (Op. No. 176, s. 1940 of Justice Sec.
Jose Abad Santos.)

2. That this Court declared as correct the opinion of the Secretary of Justice
that the limitation of Section 15 of the Naturalization Law excludes from the
benefits of naturalization by marriage, only those disqualified from being
naturalized under Section 4 of the law qouted in the decision;

From the foregoing narration of facts, it would seem that the only material point
of inquiry is as to the citizenship of Arce Machura. If he shall be found to be a
citizen of the Philippines, his wife, Mrs. Lily James Machura, shall likewise be
deemed a citizen of the Philippines pursuant to the provision of Section 15,
Commonwealth Act No. 473, which reads in part as follows:

3. That evidence to the effect that she is not disqualified may be presented in
the action to recover her bond confiscated by the Commissioner of
Immigration;

Any woman who is now or may hereafter be married to a citizen of the

Philippines, and who might herself be lawfully naturalized shall be deemed a
citizen of the Philippines.

4. That upon proof of such fact, she may be recognized as Filipina; and

The phrase "who might herself be lawfully naturalized", as contained in the

above provision, means that the woman who is married to a Filipino citizen
must not belong to any of the disqualified classes enumerated in Section 4 of
the Naturalization Law (Ops., Sec. of Jus., No. 28, s. 1950; No. 43, s. 1948,
No. 95, s. 1941; Nos. 79 and 168, s. 1940). Under the facts stated in the within
papers, Mrs. Machura does not appear to be among the disqualified classes
mentioned in the law.

5. That in referring to the disqualification enumerated in the law, the Court

somehow left the impression that no inquiry need be made as to
qualifications, 5 specially considering that the decision cited and footnotes
several opinions of the Secretary of Justice, the immediate superior of the
Commissioner of Immigration, the most important of which are the following:
Paragraph (a), section 13 of Act No. 2927, as amended, (now section 15,
Commonwealth Act No. 473), provided that "any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be
lawfully naturalized shall be deemed a citizen of the Philippines." A similar
provision in the naturalization law of the United States has been construed as
not requiring the woman to have the qualifications of residence, good
character, etc., as in the case of naturalization by judicial proceedings, but
merely that she is of the race of persons who may be naturalized. (Kelly v.
Owen [Dist. Col. 1868] 7 Wall 496, 5F, 11, 12; ex parte Tryason [D. C. Wash.
1914] 215 F. 449, 27 Op. Atty. Gen. 507). (Op. No. 168, s. 1940 of Justice
Sec. Jose Abad Santos.)
In a previous opinion rendered for your Office, I stated that the clause "who
might herself be lawfully naturalized", should be construed as not requiring the
woman to have the qualifications of residence, good character, etc., as in
cases of naturalization by judicial proceedings, but merely that she is of the
race of persons who may be naturalized. (Op. No. 79, s. 1940)
Inasmuch as the race qualification has been removed by the Revised
Naturalization Law, it results that any woman who married a citizen of the

It having been shown that Arce Machura or Arsenio Guevara was born as an
illegitimate of a Filipino mother, he should be considered as a citizen of the
Philippines in consonance with the well-settled rule that an illegitimate child
follows the citizenship of his only legally recognized parent, the mother (Op.,
Sec. of Jus., Nos. 58, 98 & 281, s. 1948; No. 96, s. 1949). Her husband being
a Filipino, Mrs. Machura must necessarily be deemed as a citizen of the
Philippines by marriage (Sec. 15, Com. Act No. 473.) (Op. No. 52, s. 1950 of
Justice Sec. Ricardo Nepomuceno.)
The logic and authority of these opinions, compelling as they are, must have
so appealed to this Court that five days later, on May 22, 1957, in Ricardo Cua
v. The Board of Commissioners, 101 Phil. 521, Mr. Justice J.B.L. Reyes,
reiterated the same ruling on the basis of the following facts:
Tjioe Wu Suan, an Indonesian, arrived in Manila on November 1, 1952, but it
turned out that her passport was forged. On December 10, 1953, a warrant
was issued for her arrest for purpose of deportation. Later, on December 20,
1953, she married Ricardo Cua, a Filipino, and because of said marriage, the
Board of Special Inquiry considered her a Filipina. Upon a review of the case,

20

however, the Board of Immigration Commissioners insisted on continuing with

the deportation proceedings and so, the husband filed prohibition and
mandamus proceedings. The lower court denied the petition. Although this
Court affirmed said decision, it held, on the other hand, that:
Granting the validity of marriage, this Court has ruled in the recent case of Ly
Giok Ha v. Galang, supra, p. 459, that the bare fact of a valid marriage to a
citizen does not suffice to confer his citizenship upon the wife. Section 15 of
the Naturalization Law requires that the alien woman who marries a Filipino
must show, in addition, that she "might herself be lawfully naturalized" as a
Filipino citizen. As construed in the decision cited, this last condition requires
proof that the woman who married a Filipino is herself not disqualified under
section 4 of the Naturalization Law.
No such evidence appearing on record, the claim of assumption of Filipino
citizenship by Tjioe Wu Suan, upon her marriage to petitioner, is untenable.
The lower court, therefore, committed no error in refusing to interfere with the
deportation proceedings, where she can anyway establish the requisites
indispensable for her acquisition of Filipino citizenship, as well as the alleged
validity of her Indonesian passport. (Ricardo Cua v. The Board of Immigration
Commissioners, G. R. No. L-9997, May 22, 1957, 101 Phil. 521, 523.)
[Emphasis supplied] .
For emphasis, it is reiterated that in the above two cases, this Court expressly
gave the parties concerned opportunity to prove the fact that they were not
suffering from any of the disqualifications of the law without the need of
undergoing any judicial naturalization proceeding. It may be stated, therefore,
that according to the above decisions, the law in this country, on the matter of
the effect of marriage of an alien woman to a Filipino is that she thereby
becomes a Filipina, if it can be proven that at the time of such marriage, she
does not possess any of the disqualifications enumerated in Section 4 of the
Naturalization Law, without the need of submitting to any naturalization
proceedings under said law.
It is to be admitted that both of the above decisions made no reference to
qualifications, that is, as to whether or not they need also to be proved, but, in
any event, it is a fact that the Secretary of Justice understood them to mean
that such qualifications need not be possessed nor proven. Then Secretary of
Justice Jesus Barrera, who later became a distinguished member of this
Court, 6 so ruled in opinions rendered by him subsequent to Ly Giok Ha, the
most illustrative of which held: .

At the outset it is important to note that an alien woman married to a Filipino

citizen needs only to show that she "might herself be lawfully naturalized" in
order to acquire Philippine citizenship. Compliance with other conditions of the
statute, such as those relating to the qualifications of an applicant for
naturalization through judicial proceedings, is not necessary. (See: Leonard v.
Grant, 5 Fed. 11; 27 Ops. Atty. Gen [U.S.] 507; Ops. Sec. of Justice, No. 776,
s. 1940, and No. 111, s. 1953.
This view finds support in the case of Ly Giok Ha et al. v. Galang et al., G.R.
No. L-10760, promulgated May 17, 1957, where the Supreme Court,
construing the abovequoted section of the Naturalization Law, held that
"marriage to a male Filipino does not vest Philippine citizenship to his foreign
wife," unless she "herself may be lawfully naturalized," and that "this limitation
of Section 15 excludes, from the benefits of naturalization by marriage, those
disqualified from being naturalized as citizens of the Philippines under Section
4 of said Commonwealth Act No. 473." In other words, disqualification for any
of the causes enumerated in Section 4 of the Act is the decisive factor that
defeats the right of the foreign wife of a Philippine citizen to acquire Philippine
citizenship.
xxx xxx xxx
Does petitioner, Lim King Bian, belong to any of these groups The
Commissioner of Immigration does not say so but merely predicates his
negative action on the ground that a warrant of deportation for "overstaying" is
pending against the petitioner.
We do not believe the position is well taken. Since the grounds for
disqualification for naturalization are expressly enumerated in the law, a
warrant of deportation not based on a finding of unfitness to become
naturalized for any of those specified causes may not be invoked to negate
acquisition of Philippine citizenship by a foreign wife of a Philippine citizen
under Section 15 of the Naturalization Law. (Inclusio unius est exclusio
alterius) (Op. No. 12, s. 1958 of Justice Undersec. Jesus G. Barrera.)
Regarding the steps that should be taken by an alien woman married to a
Filipino citizen in order to acquire Philippine citizenship, the procedure followed
in the Bureau of Immigration is as follows: The alien woman must file a petition
for the cancellation of her alien certificate of registration alleging, among other
things, that she is married to a Filipino citizen and that she is not disqualified
from acquiring her husband's citizenship pursuant to section 4 of
Commonwealth Act No. 473, as amended. Upon the filing of said petition,
which should be accompanied or supported by the joint affidavit of the

21

petitioner and her Filipino husband to the effect that the petitioner does not
belong to any of the groups disqualified by the cited section from becoming
naturalized Filipino citizen (please see attached CEB Form 1), the Bureau of
Immigration conducts an investigation and thereafter promulgates its order or
decision granting or denying the petition. (Op. No. 38, s. 19058 of Justice Sec.
Jesus G. Barrera.)
This view finds support in the case of Ly Giok Ha et al., v. Galang et al. (G.R.
No. L-10760, promulgated May 17, 1957), where the Supreme Court,
construing the above-quoted section in the Revised Naturalization Law, held
that "marriage to a male Filipino does not vest Philippine citizenship to his
foreign wife, unless she herself may be lawfully naturalized," and that "this
limitation of Section 15 excludes, from the benefits of naturalization by
marriage, those disqualified from being naturalized as citizens of the
Philippines under Section 4 of said Commonwealth Act No. 473." In other
words, disqualification for any of the causes enumerated in section 4 of the Act
is the decisive factor that defeats the right of an alien woman married to a
Filipino citizen to acquire Philippine citizenship. (Op. 57, s. 1958 of Justice
Sec. Jesus G. Barrera.)
The contention is untenable. The doctrine enunciated in the Ly Giok Ha case
is not a new one. In that case, the Supreme Court held that under paragraph I
of Section 15 Of Commonwealth Act No. 473, 'marriage to a male Filipino does
not vest Philippine citizenship to his foreign wife unless she "herself may be
lawfully naturalized"', and, quoting several earlier opinions of the Secretary of
Justice, namely: No. 52, s. 1950; No. 168, s. 1940; No. 95, s. 1941; No. 63, s.
1948; No. 28. s. 1950, "this limitation of section 15 excludes from the benefits
of naturalization by marriage, those disqualified from being naturalized as
citizens of the Philippines under section 4 of said Commonwealth Act No. 473."
(Op. 134, s. 1962 of Justice Undersec. Magno S. Gatmaitan.)
It was not until more than two years later that, in one respect, the above
construction of the law was importantly modified by this Court in Lee Suan
Ay, supra, in which the facts were as follows:
Upon expiration of the appellant Lee Suan Ay's authorized period of temporary
stay in the Philippines (25 March 1955), on 26 March 1955 the Commissioner
of Immigration asked the bondsman to present her to the Bureau of
Immigration within 24 hours from receipt of notice, otherwise the bond will be
confiscated(Annex 1). For failure of the bondsman to comply with the foregoing
order, on 1 April 1955. the Commissioner of Immigration ordered the cash
bond confiscated (Annex E). Therefore, there was an order issued by the

Commissioner of Immigration confiscating or forfeiting the cash bond. Unlike

in forfeiture of bail bonds in criminal proceedings, where the Court must enter
an order forfeiting the bail bond and the bondsman must be given an
opportunity to present his principal or give a satisfactory reason for his inability
to do so, before final judgment may be entered against the bondsman,(section
15, Rule 110; U.S. v. Bonoan, 22 Phil. 1.) in forfeiture of bonds posted for the
temporary stay of an alien in the Philippines, no court proceeding is necessary.
Once a breach of the terms and conditions of the undertaking in the bond is
committed, the Commissioner of Immigration may, under the terms and
conditions thereof, declare it forfeited in favor of the Government. (In the
meanwhile, on April 1, 1955, Lee Suan Ay and Alberto Tan, a Filipino, were
joined in marriage by the Justice of the Peace of Las Pias, Rizal.)
Mr. Justice Sabino Padilla speaking for a unanimous court which included
Justices Concepcion and Reyes who had penned Ly Giok Ha, and Ricardo
Cua, ruled thus:
The fact that Lee Suan Ay (a Chinese) was married to a Filipino citizen does
not relieve the bondsman from his liability on the bond. The marriage took
place on 1 April 1955, and the violation of the terms and conditions of the
undertaking in the bond failure to depart from the Philippines upon
expiration of her authorized period of temporary stay in the Philippines (25
March 1955) and failure to report to the Commissioner of Immigration within
24 hours from receipt of notice were committed before the marriage.
Moreover, the marriage of a Filipino citizen to an alien does not automatically
confer Philippine citizenship upon the latter. She must possess the
qualifications required by law to become a Filipino citizen by
naturalization.* There is no showing that the appellant Lee Suan Ay possesses
all the qualifications and none of the disqualifications provided for by law to
become a Filipino citizen by naturalization.
Pertinently to be noted at once in this ruling, which, to be sure, is the one relied
upon in the appealed decision now before Us, is the fact that the footnote of
the statement therein that the alien wife "must possess the qualifications
required by law to become a Filipino citizen by naturalization" makes reference
to Section 15, Commonwealth Act 473 and precisely, also to Ly Giok Ha v.
Galang, supra. As will be recalled, on the other hand, in the opinions of the
Secretary of Justice explicitly adopted by the Court in Ly Giok Ha, among
them, Opinion No. 176, Series of 1940, above-quoted, it was clearly held that
"(I)n a previous opinion rendered for your Office, I stated that the clause "who
might herself be lawfully naturalized", should be construed as not requiring the
woman to have the qualifications of residence, good character, etc., as in

22

cases of naturalization by judicial proceedingsbut merely that she is of the race

by persons who may be naturalized. (Op. No. 79, s. 1940)
Since Justice Padilla gave no reason at all for the obviously significant
modification of the construction of the law, it could be said that there was need
for clarification of the seemingly new posture of the Court. The occasion for
such clarification should have been in Kua Suy, etc., et al. vs. The
Commissioner of Immigration, G.R. No. L-13790, October 31, 1963, penned
by Mr. Justice J.B.L. Reyes, who had rendered the opinion in Ricardo
Cua,supra, which followed that in Ly Giok Ha, supra, but apparently seeing no
immediate relevancy in the case on hand then of the particular point in issue
now, since it was not squarely raised therein similarly as in Lee Suan Ay,
hence, anything said on the said matter would at best be no more than obiter
dictum, Justice Reyes limited himself to holding that "Under Section 15 of the
Naturalization Act, the wife is deemed a citizen of the Philippines only if she
"might herself be lawfully naturalized," so that the fact of marriage to a citizen,
by itself alone, does not suffice to confer citizenship, as this Court has
previously ruled in Ly Giok Ha v. Galang, 54 O.G. 356, and in Cua v. Board of
Immigration Commissioners, 53 O.G. 8567; and there is here no evidence of
record as to the qualifications or absence of disqualifications of appellee Kua
Suy", without explaining the apparent departure already pointed out from Ly
Giok Ha and Ricardo Cua. Even Justice Makalintal, who wrote a separate
concurring and dissenting opinion merely lumped together Ly Giok Ha,
Ricardo Cua and Lee Suan Ay and opined that both qualifications and nondisqualifications have to be shown without elucidating on what seemed to be
departure from the said first two decisions.
It was only on November 30, 1963 that to Mr. Justice Roberto Regala fell the
task of rationalizing the Court's position. In Lo San Tuang v. Galang, G.R. No.
L-18775, November 30, 1963, 9 SCRA 638, the facts were simply these: Lo
San Tuang, a Chinese woman, arrived in the Philippines on July 1, 1960 as a
temporary visitor with authority to stay up to June 30, 1961. She married a
Filipino on January 7, 1961, almost six months before the expiry date of her
permit, and when she was requested to leave after her authority to stay had
expired, she refused to do so, claiming she had become a Filipina by marriage,
and to bolster her position, she submitted an affidavit stating explicitly that she
does not possess any of the disqualifications enumerated in the Naturalization
Law, Commonwealth Act 473. When the case reached the court, the trial judge
held for the government that in addition to not having any of the
disqualifications referred to, there was need that Lo San Tuang should have
also possessed all the qualifications of residence, moral character, knowledge
of a native principal dialect, etc., provided by the law. Recognizing that the

issue squarely to be passed upon was whether or not the possession of all the
qualifications were indeed needed to be shown apart from non-disqualification,
Justice Regala held affirmatively for the Court, reasoning out thus: .
It is to be noted that the petitioner has anchored her claim for citizenship on
the basis of the decision laid down in the case of Leonard v. Grant, 5 Swy.
603, 5 F 11, where the Circuit Court of Oregon held that it was only necessary
that the woman "should be a person of the class or race permitted to be
naturalized by existing laws, and that in respect of the qualifications arising out
of her conduct or opinions, being the wife of a citizen, she is to be regarded as
qualified for citizenship, and therefore considered a citizen." (In explanation of
its conclusion, the Court said: "If, whenever during the life of the woman or
afterwards, the question of her citizenship arises in a legal proceeding, the
party asserting her citizenship by reason of her marriage with a citizen must
not only prove such marriage, but also that the woman then possessed all the
further qualifications necessary to her becoming naturalized under existing
laws, the statute will be practically nugatory, if not a delusion and a share. The
proof of the facts may have existed at the time of the marriage, but years after,
when a controversy arises upon the subject, it may be lost or difficult to find.")
In other words, all that she was required to prove was that she was a free white
woman or a woman of African descent or nativity, in order to be deemed an
American citizen, because, with respect to the rest of the qualifications on
residence, moral character, etc., she was presumed to be qualified.
Like the law in the United States, our former Naturalization Law (Act No. 2927,
as amended by Act No. 3448) specified the classes of persons who alone
might become citizens of the Philippines, even as it provided who were
disqualified. Thus, the pertinent provisions of that law provided:
Section 1. Who may become Philippine citizens Philippine citizenship may
be acquired by (a) natives of the Philippines who are not citizens thereof under
the Jones Law; (b) natives of the Insular possessions of the United States; (c)
citizens of the United States, or foreigners who under the laws of the United
States may become citizens of said country if residing therein.
Section 2. Who are disqualified. The following cannot be naturalized as
Philippine citizens: (a) Persons opposed to organized government or affiliated
with any association or group of persons who uphold and teach doctrines
opposing all organized government; (b) persons defending or teaching the
necessity or propriety of violence, personal assault or assassination for the
success and predominance of their ideas; (c) polygamists or believers in the
practice of polygamy; (d) persons convicted of crimes involving moral

23

turpitude; (e) persons suffering from mental alienation or incurable contagious

diseases; (f) citizens or subjects of nations with whom the United States and
the Philippines are at war, during the period of such war.
Section 3. Qualifications. The persons comprised in subsection (a) of
section one of this Act, in order to be able to acquire Philippine citizenship,
must be not less than twenty-one years of age on the day of the hearing of
their petition.
The persons comprised in subsections (b) and (c) of said section one shall, in
addition to being not less than twenty-one years of age on the day of the
hearing of the petition, have all and each of the following qualifications:
First. Residence in the Philippine Islands for a continuous period of not less
than five years, except as provided in the next following section;
Second. To have conducted themselves in a proper and irreproachable
manner during the entire period of their residence in the Philippine Islands, in
their relation with the constituted government as well as with the community in
which they are living;
Third. To hold in the Philippine Islands real estate worth not less than one
thousand pesos, Philippine currency, or have some known trade or profession;
and
Fourth. To speak and write English, Spanish, or some native tongue.
In case the petitioner is a foreign subject, he shall, besides, declare in writing
and under oath his intention of renouncing absolutely and perpetually all faith
and allegiance to the foreign authority, state or sovereignty of which he was a
native, citizen or subject.
Applying the interpretation given by Leonard v. Grant supra, to our law as it
then stood, alien women married to citizens of the Philippines must, in order
to be deemed citizens of the Philippines, be either (1) natives of the Philippines
who were not citizens thereof under the Jones Law, or (2) natives of other
Insular possessions of the United States, or (3) citizens of the United States
or foreigners who under the laws of the United States might become citizens
of that country if residing therein. With respect to the qualifications set forth in
Section 3 of the former law, they were deemed to have the same for all intents
and purposes.
But, with the approval of the Revised Naturalization Law (Commonwealth Act
No. 473) on June 17, 1939, Congress has since discarded class or racial

consideration from the qualifications of applicants for naturalization (according

to its proponent, the purpose in eliminating this consideration was, first, to
remove the features of the existing naturalization act which discriminated in
favor of the Caucasians and against Asiatics who are our neighbors, and are
related to us by racial affinity and, second, to foster amity with all nations
[Sinco, Phil. Political Law 502 11 ed.]), even as it retained in Section 15 the
phrase in question. The result is that the phrase "who might herself be lawfully
naturalized" must be understood in the context in which it is now found, in a
setting so different from that in which it was found by the Court in Leonard v.
Grant.
The only logical deduction from the elimination of class or racial consideration
is that, as the Solicitor General points out, the phrase "who might herself be
lawfully naturalized" must now be understood as referring to those who under
Section 2 of the law are qualified to become citizens of the Philippines.
There is simply no support for the view that the phrase "who might herself be
lawfully naturalized" must now be understood as requiring merely that the alien
woman must not belong to the class of disqualified persons under Section 4 of
the Revised Naturalization Law. Such a proposition misreads the ruling laid
down in Leonard v. Grant. A person who is not disqualified is not necessarily
qualified to become a citizen of the Philippines, because the law treats
"qualifications" and "disqualifications" in separate sections. And then it must
not be lost sight of that even under the interpretation given to the former law,
it was to be understood that the alien woman was not disqualified under
Section 2 of that law. Leonard v. Grant did not rule that it was enough if the
alien woman does not belong to the class of disqualified persons in order that
she may be deemed to follow the citizenship of her husband: What that case
held was that the phrase "who might herself be lawfully naturalized, merely
means that she belongs to the class or race of persons qualified to become
citizens by naturalization the assumption being always that she is not
otherwise disqualified.
We therefore hold that under the first paragraph of Section 15 of the
Naturalization Law, an alien woman, who is married to a citizen of the
Philippines, acquires the citizenship of her husband only if she has all the
qualifications and none of the disqualifications provided by law. Since there is
no proof in this case that petitioner has all the qualifications and is not in any
way disqualified, her marriage to a Filipino citizen does not automatically make
her a Filipino citizen. Her affidavit to the effect that she is not in any way
disqualified to become a citizen of this country was correctly disregarded by
the trial court, the same being self-serving.

24

Naturally, almost a month later in Sun Peck Yong v. Commissioner of

Immigration, G.R. No. L-20784, December 27, 1963, 9 SCRA 875, wherein the
Secretary of Foreign Affairs reversed a previous resolution of the preceding
administration to allow Sun Peck Yong and her minor son to await the taking
of the oath of Filipino citizenship of her husband two years after the decision
granting him nationalization and required her to leave and this order was
contested in court, Justice Barrera held:
In the case of Lo San Tuang v. Commissioner of Immigration (G.R. No. L18775, promulgated November 30, 1963; Kua Suy vs. Commissioner of
Immigration, L-13790, promulgated October 31, 1963), we held that the fact
that the husband became a naturalized citizen does not automatically make
the wife a citizen of the Philippines. It must also be shown that she herself
possesses all the qualifications, and none of the disqualifications, to become
a citizen. In this case, there is no allegation, much less showing, that petitionerwife is qualified to become a Filipino citizen herself. Furthermore, the fact that
a decision was favorably made on the naturalization petition of her husband is
no assurance that he (the husband) would become a citizen, as to make a
basis for the extension of her temporary stay.
On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136, December 27,
1963, 9 SCRA 876, Justice Barrera reiterated the same ruling and citing
particularly Lo San Tuang and Kua Suy, held that the marriage of Tong Siok
Sy to a Filipino on November 12, 1960 at Taichung, Taiwan and her taking
oath of Filipino citizenship before the Philippine Vice-Consul at Taipeh, Taiwan
on January 6, 1961 did not make her a Filipino citizen, since she came here
only in 1961 and obviously, she had not had the necessary ten-year residence
in the Philippines required by the law.
Such then was the status of the jurisprudential law on the matter under
discussion when Justice Makalintal sought a reexamination thereof in Choy
King Tee v. Galang, G.R. No. L-18351, March 26, 1965, 13 SCRA 402. Choy
King Tee's husband was granted Philippine citizenship on January 13, 1959
and took the oath on January 31 of the same year. Choy King Tee first came
to the Philippines in 1955 and kept commuting between Manila and Hongkong
since then, her last visa before the case being due to expire on February 14,
1961. On January 27, 1961, her husband asked the Commissioner of
Immigration to cancel her alien certificate of registration, as well as their child's,
for the reason that they were Filipinos, and when the request was denied as
to the wife, a mandamus was sought, which the trial court granted. Discussing
anew the issue of the need for qualifications, Justice Makalintal not only
reiterated the arguments of Justice Regala in Lo San Tuang but added further

that the ruling is believed to be in line with the national policy of selective
admission to Philippine citizenship. 7
No wonder, upon this authority, in Austria v. Conchu, G.R. No. L-20716, June
22, 1965, 14 SCRA 336, Justice J.P. Bengzon readily reversed the decision of
the lower court granting the writs of mandamus and prohibition against the
Commissioner of Immigration, considering that Austria's wife, while admitting
she did not possess all the qualifications for naturalization, had submitted only
an affidavit that she had none of the disqualifications therefor. So also did
Justice Dizon similarly hold eight days later in Brito v. Commissioner, G.R. No.
L-16829, June 30, 1965, 14 SCRA 539.
Then came the second Ly Giok Ha case 8 wherein Justice J. B. L. Reyes took
occasion to expand on the reasoning of Choy King Tee by illustrating with
examples "the danger of relying exclusively on the absence of
disqualifications, without taking into account the other affirmative requirements
of the law." 9
Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on July 30,
1966, 10 Justice Zaldivar held for the Court that an alien woman who is
widowed during the dependency of the naturalization proceedings of her
husband, in order that she may be allowed to take the oath as Filipino, must,
aside from proving compliance with the requirements of Republic Act 530,
show that she possesses all the qualifications and does not suffer from any of
the disqualifications under the Naturalization Law, citing in the process the
decision to such effect discussed above, 11 even as he impliedly reversed pro
tanto the ruling in Tan Lin v. Republic, G.R. No. L-13786, May 31, 1961, 2
SCRA 383.
Accordingly, in Burca, Justice Sanchez premised his opinion on the
assumption that the point now under discussion is settled law.
In the case now at bar, the Court is again called upon to rule on the same
issue. Under Section 15 of the Naturalization Law, Commonwealth Act 473,
providing that:
SEC. 15. Effect of the naturalization on wife and children. Any woman, who
is now or may hereafter be married to a citizen of the Philippines, and who
might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.
Minor children of persons naturalized under this law who have been born in
the Philippines shall be considered citizens thereof.

25

A foreign-born minor child, if dwelling in the Philippines at the time of the

naturalization of the parent, shall automatically become a Philippine citizen,
and a foreign-born child, who is not in the Philippines at the time the parent is
naturalized, shall be deemed a Philippine citizen only during his minority,
unless he begins to reside permanently in the Philippines when still a minor, in
which case, he will continue to be a Philippine citizen even after becoming of
age.

Ty (including the writer of this opinion), the Court decided to further reexamine
the matter. After all, the ruling first laid in Lee Suan Ay, and later in Lo San
Tuang, Choy King Tee stand the second (1966) Ly Giok Ha, did not
categorically repudiate the opinions of the Secretary of Justice relied upon by
the first (1959) Ly Giok Ha. Besides, some points brought to light during the
deliberations in this case would seem to indicate that the premises of the later
cases can still bear further consideration.

A child born outside of the Philippines after the naturalization of his parent,
shall be considered a Philippine citizen unless within one year after reaching
the age of majority he fails to register himself as a Philippine citizen at the
American Consulate of the country where he resides, and to take the
necessary oath of allegiance.

Whether We like it or not, it is undeniably factual that the legal provision We

are construing, Section 15, aforequoted, of the Naturalization Law has been
taken directly, copied and adopted from its American counterpart. To be more
accurate, said provision is nothing less than a reenactment of the American
provision. A brief review of its history proves this beyond per adventure of
doubt.

is it necessary, in order that an alien woman who marries a Filipino or who is

married to a man who subsequently becomes a Filipino, may become a Filipino
citizen herself, that, aside from not suffering from any of the disqualifications
enumerated in the law, she must also possess all the qualifications required
by said law? if nothing but the unbroken line from Lee Suan Ay to Go Im Ty,
as recounted above, were to be considered, it is obvious that an affirmative
answer to the question would be inevitable, specially, if it is noted that the
present case was actually submitted for decision on January 21, 1964 yet,
shortly after Lo San Tuang, Tong Siok Sy and Sun Peck Yong, all supra, and
even before Choy King Tee, supra, were decided. There are other
circumstances, however, which make it desirable, if not necessary, that the
Court take up the matter anew. There has been a substantial change in the
membership of the Court since Go Im Ty, and of those who were in the Court
already when Burca was decided, two members, Justice Makalintal and Castro
concurred only in the result, precisely, according to them, because (they
wanted to leave the point now under discussion open in so far as they are
concerned. 12 Truth to tell, the views and arguments discussed at length with
copious relevant authorities, in the motion for reconsideration as well as in the
memorandum of the amici curae 13 in the Burca case cannot just be taken
lightly and summarily ignored, since they project in the most forceful manner,
not only the legal and logical angles of the issue, but also the imperative
practical aspects thereof in the light of the actual situation of the thousands of
alien wives of Filipinos who have so long, even decades, considered
themselves as Filipinas and have always lived and acted as such, officially or
otherwise, relying on the long standing continuous recognition of their status
as such by the administrative authorities in charge of the matter, as well as by
the courts. Under these circumstances, and if only to afford the Court an
opportunity to consider the views of the five justices who took no part in Go Im

The first Naturalization Law of the Philippines approved by the Philippine

Legislature under American sovereignty was that of March 26, 1920, Act No.
2927. Before then, as a consequence of the Treaty of Paris, our citizenship
laws were found only in the Organic Laws, the Philippine Bill of 1902, the Act
of the United States Congress of March 23, 1912 and later the Jones Law of
1916. In fact, Act No. 2927 was enacted pursuant to express authority granted
by the Jones Law. For obvious reasons, the Philippines gained autonomy on
the subjects of citizenship and immigration only after the effectivity of the
Philippine Independence Act. This made it practically impossible for our laws
on said subject to have any perspective or orientation of our own; everything
was American.
The Philippine Bill of 1902 provided pertinently: .
SECTION 4. That all inhabitants of the Philippine Islands continuing to reside
herein who were Spanish subjects on the eleventh day of April, eighteenhundred and ninety-nine, and then resided in said Islands, and their children
born subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands and as such entitled to the protection of the United States,
except such as shall have elected to preserve their allegiance to the Crown of
Spain in accordance with the provisions of the treaty of peace between the
United States and Spain signed at Paris December tenth, eighteen hundred
and ninety-eight.
This Section 4 of the Philippine Bill of 1902 was amended by Act of Congress
of March 23, 1912, by adding a provision as follows:

26

Provided, That the Philippine Legislature is hereby authorized to provide by

law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the natives
of other insular possessions of the United States, and such other persons
residing in the Philippine Islands who would become citizens of the United
States, under the laws of the United States, if residing therein.
The Jones Law reenacted these provisions substantially: .
SECTION 2. That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine, and
then resided in said islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands, except such as
shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United
States and Spain, signed at Paris December tenth, eighteen hundred and
ninety-eight and except such others as have since become citizens of some
other country: Provided, That the Philippine Legislature, herein provided for, is
hereby authorized to provide by law for the acquisition of Philippine citizenship
by those natives of the Philippine Islands who do not come within the foregoing
provisions, the natives of the insular possessions of the United States, and
such other persons residing in the Philippine Islands who are citizens of the
United States under the laws of the United States if residing therein.
For aught that appears, there was nothing in any of the said organic laws
regarding the effect of marriage to a Filipino upon the nationality of an alien
woman, albeit under the Spanish Civil Code provisions on citizenship, Articles
17 to 27, which were, however, abrogated upon the change of sovereignty, it
was unquestionable that the citizenship of the wife always followed that of the
husband. Not even Act 2927 contained any provision regarding the effect of
naturalization of an alien, upon the citizenship of his alien wife, nor of the
marriage of such alien woman with a native born Filipino or one who had
become a Filipino before the marriage, although Section 13 thereof provided
thus: .
SEC. 13. Right of widow and children of petitioners who have died. In case
a petitioner should die before the final decision has been rendered, his widow
and minor children may continue the proceedings. The decision rendered in
the case shall, so far as the widow and minor children are concerned, produce
the same legal effect as if it had been rendered during the life of the petitioner.
It was not until November 30, 1928, upon the approval of Act 3448, amending
Act 2977, that the following provisions were added to the above Section 13:

SECTION 1. The following new sections are hereby inserted between sections
thirteen and fourteen of Act Numbered Twenty-nine hundred and Twentyseven:
SEC. 13(a). Any woman who is now or may hereafter be married to a citizen
of the Philippine Islands and who might herself be lawfully naturalized, shall
be deemed a citizen of the Philippine Islands.
SEC. 13(b). Children of persons who have been duly naturalized under this
law, being under the age of twenty-one years at the time of the naturalization
of their parents, shall, if dwelling in the Philippine Islands, be considered
citizens thereof.
SEC. 13(c). Children of persons naturalized under this law who have been
born in the Philippine Islands after the naturalization of their parents shall be
considered citizens thereof.
When Commonwealth Act 473, the current naturalization law, was enacted on
June 17, 1939, the above Section 13 became its Section 15 which has already
been quoted earlier in this decision. As can be seen, Section 13 (a)
abovequoted was re-enacted practically word for word in the first paragraph of
this Section 15 except for the change of Philippine Islands to Philippines. And
it could not have been on any other basis than this legislative history of our
naturalization law that each and everyone of the decisions of this Court from
the first Ly Giok Ha to Go Im Ty, discussed above, were rendered.
As stated earlier, in the opinion of Chief Justice Concepcion in the first Ly Giok
Ha, it was quite clear that for an alien woman who marries a Filipino to become
herself a Filipino citizen, there is no need for any naturalization proceeding
because she becomes a Filipina ipso facto from the time of such marriage,
provided she does not suffer any of the disqualifications enumerated in Section
4 of Commonwealth Act 473, with no mention being made of whether or not
the qualifications enumerated in Section 2 thereof need be shown. It was only
in Lee Suan Ay in 1959 that the possession of qualifications were specifically
required, but it was not until 1963, in Lo San Tuang, that Justice Regala
reasoned out why the possession of the qualifications provided by the law
should also be shown to be possessed by the alien wife of a Filipino, for her to
become a Filipina by marriage.
As may be recalled, the basic argument advanced by Justice Regala was
briefly as follows: That "like the law in the United States, our Naturalization
Law specified the classes of persons who alone might become citizens, even
as it provided who were disqualified," and inasmuch as Commonwealth Act

27

473, our Naturalization Law since 1939 did not reenact the section providing
who might become citizens, allegedly in order to remove racial discrimination
in favor of Caucasians and against Asiatics, "the only logical deduction ... is
that the phrase "who might herself be lawfully naturalized" must now be
understood as referring to those who under Section 2 of the law are qualified
to become citizens of the Philippines" and "there is simply no support for the
view that the phrase "who might herself be lawfully naturalized" must now be
understood as requiring merely that the alien woman must not belong to the
class of disqualified persons under Section 4 of the Revised Naturalization
Law." 14
A similar line of reasoning was followed in Choy King Tee, which for ready
reference may be qouted:
The question has been settled by the uniform ruling of this Court in a number
of cases. The alien wife of a Filipino citizen must first prove that she has all the
qualifications required by Section 2 and none of the disqualifications
enumerated in Section 4 of the Naturalization Law before she may be deemed
a Philippine citizen (Lao Chay v. Galang, L-190977, Oct. 30, 1964, citing Lo
San Tuang v. Galang, L-18775, Nov. 30, 1963; Sun Peck Yong v.
Commissioner of Immigration, L-20784, December 27, 1963; Tong Siok Sy v.
Vivo, L-21136, December 27, 1963). The writer of this opinion has submitted
the question anew to the court for a possible reexamination of the said ruling
in the light of the interpretation of a similar law in the United States after which
Section 15 of our Naturalization Law was patterned. That law was section 2 of
the Act of February 10, 1855 (Section 1994 of the Revised Statutes of the
U.S.). The local law, Act No. 3448, was passed on November 30, 1928 as an
amendment to the former Philippine Naturalization Law, Act No. 2927, which
was approved on March 26, 1920. Under this Naturalization Law, acquisition
of Philippine citizenship was limited to three classes of persons, (a) Natives of
the Philippines who were not citizens thereof; (b) natives of the other insular
possessions of the United States; and (c) citizens of the United States, or
foreigners who, under the laws of the United States, may become citizens of
the latter country if residing therein. The reference in subdivision (c) to
foreigners who may become American Citizens is restrictive in character, for
only persons of certain specified races were qualified thereunder. In other
words, in so far as racial restrictions were concerned there was at the time a
similarity between the naturalization laws of the two countries and hence there
was reason to accord here persuasive force to the interpretation given in the
United States to the statutory provision concerning the citizenship of alien
women marrying American citizens.

This Court, however, believes that such reason has ceased to exist since the
enactment of the Revised Naturalization Law, (Commonwealth Act No. 473)
on June 17, 1939. The racial restrictions have been eliminated in this Act, but
the provision found in Act No. 3448 has been maintained. It is logical to
presume that when Congress chose to retain the said provision that to be
deemed a Philippine citizen upon marriage the alien wife must be one "who
might herself be lawfully naturalized," the reference is no longer to the class or
race to which the woman belongs, for class or race has become immaterial,
but to the qualifications and disqualifications for naturalization as enumerated
in Sections 2 and 4 of the statute. Otherwise the requirement that the woman
"might herself be lawfully naturalized" would be meaningless surplusage,
contrary to settled norms of statutory construction.
The rule laid down by this Court in this and in other cases heretofore decided
is believed to be in line with the national policy of selective admission to
Philippine citizenship, which after all is a privilege granted only to those who
are found worthy thereof, and not indiscriminately to anybody at all on the basis
alone of marriage to a man who is a citizen of the Philippines, irrespective of
moral character, ideological beliefs, and identification with Filipino ideals,
customs and traditions.
Appellee here having failed to prove that she has all the qualifications for
naturalization, even, indeed, that she has none of the disqualifications, she is
not entitled to recognition as a Philippine citizen.
In the second Ly Giok Ha, the Court further fortified the arguments in favor of
the same conclusion thus:
On cross-examination, she (Ly Giok Ha) failed to establish that: (1) she has
been residing in the Philippines for a continuous period of at least (10) years
(p. 27, t.s.n., id.); (2) she has a lucrative trade, profession, or lawful occupation
(p. 13, t.s.n., id.); and (3) she can speak and write English, or any of the
principal Philippine languages (pp. 12, 13, t.s.n., id.).
While the appellant Immigration Commissioner contends that the words
emphasized indicate that the present Naturalization Law requires that an alien
woman who marries a Filipino husband must possess the qualifications
prescribed by section 2 in addition to not being disqualified under any of the
eight ("a" to "h") subheadings of section 4 of Commonwealth Act No. 473, in
order to claim our citizenship by marriage, both the appellee and the court
below (in its second decision) sustain the view that all that the law demands is
that the woman be not disqualified under section 4.

28

At the time the present case was remanded to the court of origin (1960) the
question at issue could be regarded as not conclusively settled, there being
only the concise pronouncement in Lee Suan Ay, et al. v. Galang, G. R. No.
L-11855, Dec. 23, 1959, to the effect that:

"upholding or teaching doctrines opposing all organized governments", nor

"defending or teaching the necessity or propriety of violence, personal assault
or assassination for the success or predominance of their ideas." Et sic de
caeteris.

The marriage of a Filipino citizen to an alien does not automatically confer

Philippine citizenship upon the latter. She must possess the qualifications
required by law to become a Filipino citizen by naturalization.

The foregoing instances should suffice to illustrate the danger of relying

exclusively on the absence of disqualifications, without taking into account the
other affirmative requirements of the law, which, in the case at bar, the
appellee Ly Giok Ha admittedly does not possess.

Since that time, however, a long line of decisions of this Court has firmly
established the rule that the requirement of section 15 of Commonwealth Act
473 (the Naturalization Act), that an alien woman married to a citizen should
be one who "might herself be lawfully naturalized," means not only woman free
from the disqualifications enumerated in section 4 of the Act but also one who
possesses the qualifications prescribed by section 2 of Commonwealth Act
473 (San Tuan v. Galang, L-18775, Nov. 30, 1963; Sun Peck Yong v. Com. of
Immigration, L-20784, Dee. 27, 1963; Tong Siok Sy v. Vivo, L-21136, Dec. 27,
1963; Austria v. Conchu, L-20716, June 22, 1965; Choy King Tee v. Galang,
L-18351, March 26, 1965; Brito v. Com. of Immigration, L-16829, June 30,
1965).
Reflection will reveal why this must be so. The qualifications prescribed under
section 2 of the Naturalization Act, and the disqualifications enumerated in its
section 4 are not mutually exclusive; and if all that were to be required is that
the wife of a Filipino be not disqualified under section 4, the result might well
be that citizenship would be conferred upon persons in violation of the policy
of the statute. For example, section 4 disqualifies only
(c) Polygamists or believers in the practice of polygamy; and
(d) Persons convicted of crimes involving moral turpitude,
so that a blackmailer, or a maintainer of gambling or bawdy houses, not
previously convicted by a competent court would not be thereby disqualified;
still, it is certain that the law did not intend such person to be admitted as a
citizen in view of the requirement of section 2 that an applicant for citizenship
"must be of good moral character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy,
in government by certain selected classes, in the right to vote exclusively by
certain "herrenvolk", and thus disbelieve in the principles underlying the
Philippine Constitution; yet she would not be disqualified under section 4, as
long as she is not "opposed to organized government," nor affiliated to groups

As to the argument that the phrase "might herself be lawfully naturalized" was
derived from the U.S. Revised Statutes (section 1994) and should be given
the same territorial and racial significance given to it by American courts, this
Court has rejected the same in Lon San Tuang v. Galang, L-18775, November
30, 1963; and in Choy King Tee v. Galang, L-18351, March 26, 1965.
It is difficult to minimize the persuasive force of the foregoing rationalizations,
but a closer study thereof cannot bat reveal certain relevant considerations
which adversely affect the premises on which they are predicated, thus
rendering the conclusions arrived thereby not entirely unassailable.
1. The main proposition, for instance, that in eliminating Section 1 of Act 2927
providing who are eligible for Philippine citizenship, the purpose of
Commonwealth Act 473, the Revised Naturalization Law, was to remove the
racial requirements for naturalization, thereby opening the door of Filipino
nationality to Asiatics instead of allowing the admission thereto of Caucasians
only, suffers from lack of exact accuracy. It is important to note, to start with,
that Commonwealth Act 473 did away with the whole Section 1 of Act 2927
which reads, thus:
SECTION 1. Who may become Philippine citizens. Philippine citizenship
may be acquired by: (a) natives of the Philippines who are not citizens thereof
under the Jones Law; (b) natives of the other Insular possessions of the United
States; (c) citizens of the United States, or foreigners who under the laws of
the United States may become citizens of said country if residing therein.
and not only subdivision (c) thereof. Nowhere in this whole provision was there
any mention of race or color of the persons who were then eligible for
Philippine citizenship. What is more evident from said provision is that it
reflected the inevitable subordination of our legislation during the preCommonwealth American regime to the understandable stations flowing from
our staffs as a territory of the United States by virtue of the Treaty of Paris. In
fact, Section 1 of Act 2927 was precisely approved pursuant to express

29

authority without which it could not have been done, granted by an amendment
to Section 4 of the Philippine Bill of 1902 introduced by the Act of the United
States Congress of March 23, 1912 and which was reenacted as part of the
Jones Law of 1916, the pertinent provisions of which have already been footed
earlier. In truth, therefore, it was because of the establishment of the Philippine
Commonwealth and in the exercise of our legislative autonomy on citizenship
matters under the Philippine Independence Act that Section 1 of Act 2927 was
eliminated, 15 and not purposely to eliminate any racial discrimination
contained in our Naturalization Law. The Philippine Legislature naturally
wished to free our Naturalization Law from the impositions of American
legislation. In other words, the fact that such discrimination was removed was
one of the effects rather than the intended purpose of the amendment.

was the first "Act to Establish a Bureau of Immigration and Naturalization and
to provide for a Uniform Rule for Naturalization of Aliens throughout the United
States" contained no racial disqualification requirement, except as to Chinese,
the Act of May 6, 1882 not being among the expressly repealed by this law,
hence it is clear that when Act 2927 was enacted, subdivision (e) of its Section
1 could not have had any connotation of racial exclusion necessarily, even if it
were traced back to its origin in the Act of the United States Congress of 1912
already mentioned above. 16 Thus, it would seem that the rationalization in the
qouted decisions predicated on the theory that the elimination of Section 1 of
Act 2927 by Commonwealth Act 473 was purposely for no other end than the
abolition of racial discrimination in our naturalization law has no clear factual
basis. 17

2. Again, the statement in Choy King Tee to the effect that "the reference in
subdivision (c) (of Section 1 of Act 2927) to foreigners who may become
American citizens is restrictive in character, for only persons of certain
specified races were qualified thereunder" fails to consider the exact import of
the said subdivision. Explicitly, the thrust of the said subdivision was to confine
the grant under it of Philippine citizenship only to the three classes of persons
therein mentioned, the third of which were citizens of the United States and,
corollarily, persons who could be American citizens under her laws. The words
used in the provision do not convey any idea of favoring aliens of any particular
race or color and of excluding others, but more accurately, they refer to all the
disqualifications of foreigners for American citizenship under the laws of the
United States. The fact is that even as of 1906, or long before 1920, when our
Act 2927 became a law, the naturalization, laws of the United States already
provided for the following disqualifications in the Act of the Congress of June
29, 1906:

3. In view of these considerations, there appears to be no cogent reason why

the construction adopted in the opinions of the Secretary of Justice referred to
in the first Ly Giok Ha decision of the Chief Justice should not prevail. It is
beyond dispute that the first paragraph of Section 15 of Commonwealth Act
473 is a reenactment of Section 13(a) of Act 2927, as amended by Act 3448,
and that the latter is nothing but an exact copy, deliberately made, of Section
1994 of the Raised Statutes of the United States as it stood before its repeal
in 1922. 18 Before such repeal, the phrase "who might herself be lawfully
naturalized" found in said Section 15 had a definite unmistakable construction
uniformly foIlowed in all courts of the United States that had occasion to apply
the same and which, therefore, must be considered, as if it were written in the
statute itself. It is almost trite to say that when our legislators enacted said
section, they knew of its unvarying construction in the United States and that,
therefore, in adopting verbatim the American statute, they have in effect
incorporated into the provision, as thus enacted, the construction given to it by
the American courts as well as the Attorney General of the United States and
all administrative authorities, charged with the implementation of the
naturalization and immigration laws of that country. (Lo Cham v. Ocampo, 77
Phil., 635 [1946]; Laxamana v. Baltazar, 92 Phil., 32 [1952]; Hartley v.
Commissioner, 295 U.S. 216, 79 L. ed. 1399, 55 S Ct. 756 [19353; Helvering
v. Winmill, 305 U.S. 79, 83 L ed. 52, 59 S Ct. 45 [1938]; Helvering v. R. J.
Reynolds Tobacco Co., 306 U.S. 110, 83 L ed. 536, 59 S Ct. 423 [1939]. [p.
32, Memo of Amicus Curiae]).

SEC. 7. That no person who disbelieves in or who is opposed to organized

government, or who is a member of or affiliated with any organization
entertaining and teaching such disbelief in or opposition to organized
government, or who advocates or teaches the duty, necessity, or propriety of
the unlawful assaulting or killing of any officer or officers, either of specific
individuals or of officers generally, of the Government of the United States, or
of any other organized government, because of his or their official character,
or who is a polygamist, shall be naturalized or be made a citizen of the United
States.
and all these disqualified persons were, therefore, ineligible for Philippine
citizenship under Section 1 of Act 2927 even if they happened to be
Caucasians. More importantly, as a matter of fact, said American law, which

A fairly comprehensive summary of the said construction by the American

courts and administrative authorities is contained in United States of America
ex rel. Dora Sejnensky v. Robert E. Tod, Commissioner of Immigration, Appt.,
295 Fed. 523, decided November 14, 1922, 26 A. L. R. 1316 as follows:

30

Section 1994 of the Revised Statutes (Comp. Stat. 3948, 2 Fed. Sta. Anno. 2d
ed. p. 117) provides as follows: "Any woman who is now or may hereafter be
married to a citizen of the United States, and who might herself be lawfully
naturalized, shall be deemed a citizen."
Section 1944 of the Revised Stat. is said to originate in the Act of Congress of
February 10, 1855 (10 Stat. at L. 604, chap. 71), which in its second section
provided "that any woman, who might lawfully be naturalized under the existing
laws, married, or who shall be married to a citizen of the United States, shall
be deemed and taken to be a citizen."
And the American Statute of 1855 is substantially a copy of the earlier British
Statute 7 & 8 Vict. chap. 66, s 16, 1844, which provided that "any woman
married, or who shall be married, to a natural-born subject or person
naturalized, shall be deemed and taken to be herself naturalized, and have all
the rights and privileges of a natural born subject."
The Act of Congress of September 22, 1922 (42 Stat. at L. 1021, chap. 411,
Comp. Stat. 4358b, Fed. Stat. Anno. Supp. 1922, p. 255), being "An Act
Relative to the Naturalization and Citizenship of Married Women," in 2,
provides "that any woman who marries a citizen of the United States after the
passage of this Act, ... shall not become a citizen of the United States by
reason of such marriage ..."
Section 6 of the act also provides "that 1994 of the Revised Statutes ... are
repealed."
Section 6 also provides that `such repeal shall not terminate citizenship
acquired or retained under either of such sections, ..." meaning 2 and 6. So
that this Act of September 22, 1922, has no application to the facts of the
present case, as the marriage of the relator took place prior to its passage.
This case, therefore, depends upon the meaning to be attached to 1994 of the
Revised Statutes.
In 1868 the Supreme Court, in Kelly v. Owen, 7 Wall. 496, 498, 19 L. ed. 283,
284, construed this provision as found in the Act of 1855 as follows: "The term,
"who might lawfully be naturalized under the existing laws," only limits the
application of the law to free white women. The previous Naturalization Act,
existing at the time, only required that the person applying for its benefits
should be "a free white person," and not an alien enemy."
This construction limited the effect of the statute to those aliens who belonged
to the class or race which might be lawfully naturalized, and did not refer to

any of the other provisions of the naturalization laws as to residence or moral

character, or to any of the provisions of the immigration laws relating to the
exclusion or deportation of aliens.
In 1880, in Leonard v. Grant (C. C.) 5 Fed. 11, District Judge Deady also
construed the Act of 1855, declaring that "any woman who is now or may
hereafter be married to a citizen of the United States, and might herself be
lawfully naturalized, shall be deemed a citizen." He held that "upon the
authorities, and the reason, if not the necessity, of the case," the statute must
be construed as in effect declaring that an alien woman, who is of the class or
race that may be lawfully naturalized under the existing laws, and who marries
a citizen of the United States, is such a citizen also, and it was not necessary
that it should appear affirmatively that she possessed the other qualifications
at the time of her marriage to entitle her to naturalization.
In 1882, the Act of 1855 came before Mr. Justice Harlan, sitting in the circuit
court, in United States v. Kellar, 13 Fed. 82. An alien woman, a subject of
Prussia came to the United States and married here a naturalized citizen. Mr.
Justice Harlan, with the concurrence of Judge Treat, held that upon her
marriage she became ipso facto a citizen of the United States as fully as if she
had complied with all of the provisions of the statutes upon the subject of
naturalization. He added: "There can be no doubt of this, in view of the decision
of the Supreme Court of the United, States in Kelly v. Owen, 7 Wall. 496, 19
L. ed. 283." The alien "belonged to the class of persons" who might be lawfully
naturalized.
In 1904, in Hopkins v. Fachant, 65 C. C. A. 1, 130 Fed. 839, an alien woman
came to the United States from France and entered the country contrary to the
immigration laws. The immigration authorities took her into custody at the port
of New York, with the view of deporting her. She applied for her release under
a writ of habeas corpus, and pending the disposition of the matter she married
a naturalized American citizen. The circuit court of appeals for the ninth Circuit
held, affirming the court below, that she was entitled to be discharged from
custody. The court declared: "The rule is well settled that her marriage to a
naturalized citizen of the United States entitled her to be discharged. The
status of the wife follows that of her husband, ... and by virtue of her marriage
her husband's domicil became her domicil." .
In 1908, the circuit court for the district of Rhode Island in Re Rustigian, 165.
Fed. 980, had before it the application of a husband for his final decree of
naturalization. It appeared that at that time his wife was held by the immigration
authorities at New York on the ground that she was afflicted with a dangerous

31

and contagious disease. Counsel on both sides agreed that the effect of the
husband's naturalization would be to confer citizenship upon the wife. In view
of that contingency District Judge Brown declined to pass upon the husband's
application for naturalization, and thought it best to wait until it was determined
whether the wife's disease was curable. He placed his failure to act on the
express ground that the effect of naturalizing the husband might naturalize her.
At the same time he express his opinion that the husband's naturalization
would not effect her naturalization, as she was not one who could become
lawfully naturalized. "Her own capacity (to become naturalized)," the court
stated "is a prerequisite to her attaining citizenship. If herself lacking in that
capacity, the married status cannot confer it upon her." Nothing, however, was
actually decided in that case, and the views expressed therein are really
nothing more than mere dicta. But, if they can be regarded as something more
than that, we find ourselves, with all due respect for the learned judge, unable
to accept them.
In 1909, in United States ex rel. Nicola v. Williams, 173 Fed. 626, District
Judge Learned Hand held that an alien woman, a subject of the Turkish
Empire, who married an American citizen while visiting Turkey, and then came
to the United States, could not be excluded, although she had, at the time of
her entry, a disease which under the immigration laws would have been
sufficient ground for her exclusion, if she bad not had the status of a citizen.
The case was brought into this court on appeal, and in 1911 was affirmed, in
106 C. C. A. 464, 184 Fed. 322. In that case, however at the time the relators
married, they might have been lawfully naturalized, and we said: "Even if we
assume the contention of the district attorney to be correct that marriage will
not make a citizen of a woman who would be excluded under our immigration
laws, it does not affect these relators."
We held that, being citizens, they could not be excluded as aliens; and it was
also said to be inconsistent with the policy of our law that the husband should
be a citizen and the wife an alien. The distinction between that case and the
one now before the court is that, in the former case, the marriage took place
before any order of exclusion had been made, while in this the marriage was
celebrated after such an order was made. But such an order is a mere
administrative provision, and has not the force of a judgment of a court, and
works no estoppel. The administrative order is based on the circumstances
that existed at the time the order of exclusion was made. If the circumstances
change prior to the order being carried into effect, it cannot be executed. For
example, if an order of exclusion should be based on the ground that the alien
was at the time afflicted with a contagious disease, and it should be made
satisfactorily to appear, prior to actual deportation, that the alien had entirely

recovered from the disease, we think it plain that the order could not be carried
into effect. So, in this case, if, after the making of the order of exclusion and
while she is permitted temporarily to remain, she in good faith marries an
American citizen, we cannot doubt the validity of her marriage, and that she
thereby acquired, under international law and under 1994 of the Revised
Statutes, American citizenship, and ceased to be an alien. There upon, the
immigration authorities lost their jurisdiction over her, as that jurisdiction
applies only to aliens, and not to citizens.
In 1910, District Judge Dodge, in Ex parte Kaprielian, 188 Fed. 694, sustained
the right of the officials to deport a woman under the following circumstances:
She entered this country in July, 1910, being an alien and having been born in
Turkey. She was taken into custody by the immigration authorities in the
following September, and in October a warrant for her deportation was issued.
Pending hearings as to the validity of that order, she was paroled in the
custody of her counsel. The ground alleged for her deportation was that she
was afflicted with a dangerous and contagious disease at the time of her entry.
One of the reasons assigned to defeat deportation was that the woman had
married a citizen of the United States pending the proceedings for her
deportation. Judge Dodge declared himself unable to believe that a marriage
under such circumstances "is capable of having the effect claimed, in view of
the facts shown." He held that it was no part of the intended policy of 1994 to
annul or override the immigration laws, so as to authorize the admission into
the country of the wife of a naturalized alien not otherwise entitled to enter,
and that an alien woman, who is of a class of persons excluded by law from
admission to the United States does not come within the provisions of that
section. The court relied wholly upon the dicta contained in the Rustigian Case.
No other authorities were cited.
In 1914, District Judge Neterer, in Ex parte Grayson, 215 Fed. 449, construed
1994 and held that where, pending proceedings to deport an alien native of
France as an alien prostitute, she was married to a citizen of the United States,
she thereby became a citizen, and was not subject to deportation until her
citizenship was revoked by due process of law. It was his opinion that if, as
was contended, her marriage was conceived in fraud, and was entered into for
the purpose of evading the immigration laws and preventing her deportation,
such fact should be established in a court of competent jurisdiction in an action
commenced for the purpose. The case was appealed and the appeal was
dismissed. 134 C. C. A. 666, 219 Fed. 1022.
It is interesting also to observe the construction placed upon the language of
the statute by the Department of Justice. In 1874, Attorney General Williams,

32

14 Ops. Atty. Gen. 402, passing upon the Act of February 10, 1855, held that
residence within the United States for the period required by the naturalization
laws was riot necessary in order to constitute an alien woman a citizen, she
having married a citizen of the United States abroad, although she never
resided in the United States, she and her husband having continued to reside
abroad after the marriage.
In 1909, a similar construction was given to the Immigration Act of May 5,
1907, in an opinion rendered by Attorney General Wickersham. It appeared an
unmarried woman, twenty-eight years of age and a native of Belgium, arrived
in New York and went at once to a town in Nebraska, where she continued to
reside. About fifteen months after her arrival she was taken before a United
States commissioner by way of instituting proceedings under the Immigration
Act (34 Stat. at L. 898, chap. 1134, Comp. Stat. 4242, 3 Fed. Stat. Anno. 2d
ed. p. 637) for her deportation, on the ground that she had entered this country
for the purpose of prostitution, and had been found an inmate of a house of
prostitution and practicing the same within three years after landing. It
appeared, however, that after she was taken before the United States
commissioner, but prior to her arrest under a warrant by the Department of
Justice, she was lawfully married to a native-born citizen of the United States.
The woman professed at the time of her marriage an intention to abandon her
previous mode of life and to remove with her husband to his home in
Pennsylvania. He knew what her mode of life had been, but professed to
believe in her good intentions. The question was raised as to the right to deport
her, the claim being advance that by her marriage she bad become an
American citizen and therefore could not be deported. The Attorney General
ruled against the right to deport her as she had become an American citizen.
He held that the words, "who might herself be lawfully naturalized," refer to a
class or race who might be lawfully naturalized, and that compliance with the
other conditions of the naturalization laws was not required. 27 Ops. Atty. Gen.
507.
Before concluding this opinion, we may add that it has not escaped our
observation that Congress, in enacting the Immigration Act of 1917, so as to
provide, in 19, "that the marriage to an American citizen of a female of the
sexually immoral classes ... shall not invest such female with United States
citizenship if the marriage of such alien female shall be solemnized after her
arrest or after the commission of acts which make her liable to deportation
under this act."
Two conclusions seem irresistibly to follow from the above change in the law:

(1) Congress deemed legislation essential to prevent women of the immoral

class avoiding deportation through the device of marrying an American citizen.
(2) If Congress intended that the marriage of an American citizen with an alien
woman of any other of the excluded classes, either before or after her
detention, should not confer upon her American citizenship, thereby entitling
her to enter the country, its intention would have been expressed, and 19
would not have been confined solely to women of the immoral class.
Indeed, We have examined all the leading American decisions on the subject
and We have found no warrant for the proposition that the phrase "who might
herself be lawfully naturalized" in Section 1994 of the Revised Statutes was
meant solely as a racial bar, even if loose statements in some decisions and
other treaties and other writings on the subject would seem to give such
impression. The case of Kelley v. Owen, supra, which appears to be the most
cited among the first of the decisions 19 simply held:
As we construe this Act, it confers the privileges of citizenship upon women
married to citizens of the United States, if they are of the class of persons for
whose naturalization the previous Acts of Congress provide. The terms
"married" or "who shall be married," do not refer in our judgment, to the time
when the ceremony of marriage is celebrated, but to a state of marriage. They
mean that, whenever a woman, who under previous Acts might be naturalized,
is in a state of marriage to a citizen, whether his citizenship existed at the
passage of the Act or subsequently, or before or after the marriage, she
becomes, by that fact, a citizen also. His citizenship, whenever it exists,
confers, under the Act, citizenship upon her. The construction which would
restrict the Act to women whose husbands, at the time of marriage, are
citizens, would exclude far the greater number, for whose benefit, as we think,
the Act was intended. Its object, in our opinion, was to allow her citizenship to
follow that of her husband, without the necessity of any application for
naturalization on her part; and, if this was the object, there is no reason for the
restriction suggested.
The terms, "who might lawfully be naturalized under the existing laws," only
limit the application of the law to free white women. The previous Naturalization
Act, existing at the time only required that the person applying for its benefits
should be "a free white person," and not an alien enemy. Act of April 14th,
1802, 2 Stat. at L. 153.
A similar construction was given to the Act by the Court of Appeals of New
York, in Burton v. Burton, 40 N. Y. 373; and is the one which gives the widest
extension to its provisions.

33

Note that write the court did say that "the terms, "who might lawfully be
naturalized under existing laws" only limit the application to free white
women" 20 it hastened to add that "the previous Naturalization Act, existing at
the time, ... required that the person applying for its benefits should be (not
only) a "free white person" (but also) ... not an alien enemy." This is simply
because under the Naturalization Law of the United States at the time the case
was decided, the disqualification of enemy aliens had already been removed
by the Act of July 30, 1813, as may be seen in the corresponding footnote
hereof anon. In other words, if in the case of Kelly v. Owen only the race
requirement was mentioned, the reason was that there was no other non-racial
requirement or no more alien enemy disqualification at the time; and this is
demonstrated by the fact that the court took care to make it clear that under
the previous naturalization law, there was also such requirement in addition to
race. This is impotent, since as stated in re Rustigian, 165 Fed. Rep. 980, "The
expression used by Mr. Justice Field, (in Kelly v. Owen) the terms "who might
lawfully be naturalized under existing laws" only limit the application of the law
to free white women, must be interpreted in the application to the special facts
and to the incapacities under the then existing laws," (at p. 982) meaning that
whether or not an alien wife marrying a citizen would be a citizen was
dependent, not only on her race and nothing more necessarily, but on whether
or not there were other disqualifications under the law in force at the time of
her marriage or the naturalization of her husband.
4. As already stated, in Lo San Tuang, Choy King Tee and the second Ly Giok
Ha, the Court drew the evidence that because Section 1 of Act 2927 was
eliminated by Commonwealth Act 473, it follows that in place of the said
eliminated section particularly its subdivision (c), being the criterion of whether
or not an alien wife "may be lawfully naturalized," what should be required is
not only that she must not be disqualified under Section 4 but that she must
also possess the qualifications enumerated in Section 2, such as those of age,
residence, good moral character, adherence to the underlying principles of the
Philippine Constitution, irreproachable conduct, lucrative employment or
ownership of real estate, capacity to speak and write English or Spanish and
one of the principal local languages, education of children in certain schools,
etc., thereby implying that, in effect, sails Section 2 has been purposely
intended to take the place of Section 1 of Act 2927. Upon further consideration
of the proper premises, We have come, to the conclusion that such inference
is not sufficiently justified.
To begin with, nothing extant in the legislative history, which We have already
explained above of the mentioned provisions has been shown or can be shown
to indicate that such was the clear intent of the legislature. Rather, what is

definite is that Section 15 is, an exact copy of Section 1994 of the Revised
Statutes of the United States, which, at the time of the approval of
Commonwealth Act 473 had already a settled construction by American courts
and administrative authorities.
Secondly, as may be gleaned from the summary of pertinent American
decisions quoted above, there can be no doubt that in the construction of the
identically worded provision in the Revised Statutes of the United States,
(Section 1994, which was taken, from the Act of February 10, 1855) all
authorities in the United States are unanimously agreed that the qualifications
of residence, good moral character, adherence to the Constitution, etc. are not
supposed to be considered, and that the only eligibility to be taken into account
is that of the race or class to which the subject belongs, the conceptual scope
of which, We have just discussed. 21 In the very case of Leonard v.
Grant, supra, discussed by Justice Regala in Lo San Tuang, the explanation
for such posture of the American authorities was made thus:
The phrase, "shall be deemed a citizen" in section 1994 Rev. St., or as it was
in the Act of 1855,supra, "shall be deemed and taken to be a citizen" while it
may imply that the person to whom it relates has not actually become a citizen
by ordinary means or in the usual way, as by the judgment of a competent
court, upon a proper application and proof, yet it does not follow that such
person is on that account practically any the less a citizen. The word "deemed"
is the equivalent of "considered" or "judged"; and, therefore, whatever an act
of Congress requires to be "deemed" or "taken" as true of any person or thing,
must, in law, be considered as having been duly adjudged or established
concerning "such person or thing, and have force and effect accordingly.
When, therefore, Congress declares that an alien woman shall, under certain
circumstances, be "deemed' an American citizen, the effect when the
contingency occurs, is equivalent to her being naturalized directly by an act of
Congress, or in the usual mode thereby prescribed.
Unless We disregard now the long settled familiar rule of statutory construction
that in a situation like this wherein our legislature has copied an American
statute word for word, it is understood that the construction already given to
such statute before its being copied constitute part of our own law, there seems
to be no reason how We can give a different connotation or meaning to the
provision in question. At least, We have already seen that the views sustaining
the contrary conclusion appear to be based on in accurate factual premises
related to the real legislative background of the framing of our naturalization
law in its present form.

34

Thirdly, the idea of equating the qualifications enumerated in Section 2 of

Commonwealth Act 473 with the eligibility requirements of Section 1 of Act
2927 cannot bear close scrutiny from any point of view. There is no question
that Section 2 of Commonwealth Act 473 is more or less substantially the same
as Section 3 of Act 2927. In other words, Section 1 of Act 2927 co-existed
already with practically the same provision as Section 2 of Commonwealth Act
473. If it were true that the phrase "who may be lawfully naturalized" in Section
13 (a) of Act 2927, as amended by Act 3448, referred to the so-called racial
requirement in Section 1 of the same Act, without regard to the provisions of
Section 3 thereof, how could the elimination of Section 1 have the effect of
shifting the reference to Section 3, when precisely, according to the American
jurisprudence, which was prevailing at the time Commonwealth Act 473 was
approved, such qualifications as were embodied in said Section 3, which had
their counterpart in the corresponding American statutes, are not supposed to
be taken into account and that what should be considered only are the
requirements similar to those provided for in said Section 1 together with the
disqualifications enumerated in Section 4?
Fourthly, it is difficult to conceive that the phrase "who might be lawfully
naturalized" in Section 15 could have been intended to convey a meaning
different than that given to it by the American courts and administrative
authorities. As already stated, Act 3448 which contained said phrase and from
which it was taken by Commonwealth Act 473, was enacted in 1928. By that,
time, Section 1994 of the Revised Statutes of the United States was no longer
in force because it had been repealed expressly the Act of September 22, 1922
which did away with the automatic naturalization of alien wives of American
citizens and required, instead, that they submit to regular naturalization
proceedings, albeit under more liberal terms than those of other applicants. In
other words, when our legislature adopted the phrase in question, which, as
already demonstrated, had a definite construction in American law, the
Americans had already abandoned said phraseology in favor of a categorical
compulsion for alien wives to be natural judicially. Simple logic would seem to
dictate that, since our lawmakers, at the time of the approval of Act 3448, had
two choices, one to adopt the phraseology of Section 1994 with its settled
construction and the other to follow the new posture of the Americans of
requiring judicial naturalization and it appears that they have opted for the first,
We have no alternative but to conclude that our law still follows the old or
previous American Law On the subject. Indeed, when Commonwealth Act 473
was approved in 1939, the Philippine Legislature, already autonomous then
from the American Congress, had a clearer chance to disregard the old
American law and make one of our own, or, at least, follow the trend of the Act

of the U.S. Congress of 1922, but still, our legislators chose to maintain the
language of the old law. What then is significantly important is not that the
legislature maintained said phraseology after Section 1 of Act 2927 was
eliminated, but that it continued insisting on using it even after the Americans
had amended their law in order to provide for what is now contended to be the
construction that should be given to the phrase in question. Stated differently,
had our legislature adopted a phrase from an American statute before the
American courts had given it a construction which was acquiesced to by those
given upon to apply the same, it would be possible for Us to adopt a
construction here different from that of the Americans, but as things stand, the
fact is that our legislature borrowed the phrase when there was already a
settled construction thereof, and what is more, it appears that our legislators
even ignored the modification of the American law and persisted in maintaining
the old phraseology. Under these circumstances, it would be in defiance of
reason and the principles of Statutory construction to say that Section 15 has
a nationalistic and selective orientation and that it should be construed
independently of the previous American posture because of the difference of
circumstances here and in the United States. It is always safe to say that in
the construction of a statute, We cannot fall on possible judicial fiat or
perspective when the demonstrated legislative point of view seems to indicate
otherwise.
5. Viewing the matter from another angle, there is need to emphasize that in
reality and in effect, the so called racial requirements, whether under the
American laws or the Philippine laws, have hardly been considered as
qualifications in the same sense as those enumerated in Section 3 of Act 2927
and later in Section 2 of Commonwealth Act 473. More accurately, they have
always been considered as disqualifications, in the sense that those who did
not possess them were the ones who could not "be lawfully naturalized," just
as if they were suffering from any of the disqualifications under Section 2 of
Act 2927 and later those under Section 4 of Commonwealth Act 473, which,
incidentally, are practically identical to those in the former law, except those in
paragraphs (f) and (h) of the latter. 22 Indeed, such is the clear impression
anyone will surely get after going over all the American decisions and opinions
quoted and/or cited in the latest USCA (1970), Title 8, section 1430, pp. 598602, and the first decisions of this Court on the matter, Ly Giok Ha (1959) and
Ricardo Cua, citing with approval the opinions of the secretary of
Justice. 23 Such being the case, that is, that the so-called racial requirements
were always treated as disqualifications in the same light as the other
disqualifications under the law, why should their elimination not be viewed or
understood as a subtraction from or a lessening of the disqualifications? Why

35

should such elimination have instead the meaning that what were previously
considered as irrelevant qualifications have become disqualifications, as
seems to be the import of the holding in Choy King Tee to the effect that the
retention in Section 15 of Commonwealth Act 473 of the same language of
what used to be Section 13 (a) of Act 2927 (as amended by Act 3448),
notwithstanding the elimination of Section 1 of the latter, necessarily indicates
that the legislature had in mind making the phrase in question "who may be
lawfully naturalized" refer no longer to any racial disqualification but to the
qualification under Section 2 of Commonwealth Act 473? Otherwise stated,
under Act 2927, there were two groups of persons that could not be
naturalized, namely, those falling under Section 1 and those falling under
Section 2, and surely, the elimination of one group, i.e. those belonging to
Section 1, could not have had, by any process of reasoning, the effect of
increasing, rather than decreasing, the disqualifications that used to be before
such elimination. We cannot see by what alchemy of logic such elimination
could have convicted qualifications into disqualifications specially in the light
of the fact that, after all, these are disqualifications clearly set out as such in
the law distinctly and separately from qualifications and, as already
demonstrated, in American jurisprudence, qualifications had never been
considered to be of any relevance in determining "who might be lawfully
naturalized," as such phrase is used in the statute governing the status of alien
wives of American citizens, and our law on the matter was merely copied
verbatim from the American statutes.
6. In addition to these arguments based on the applicable legal provisions and
judicial opinions, whether here or in the United States, there are practical
considerations that militate towards the same conclusions. As aptly stated in
the motion for reconsideration of counsel for petitioner-appellee dated
February 23, 1967, filed in the case ofZita Ngo Burca v. Republic, supra:
Unreasonableness of requiring alien wife to prove "qualifications"
There is one practical consideration that strongly militates against a
construction that Section 15 of the law requires that an alien wife of a Filipino
must affirmatively prove that she possesses the qualifications prescribed
under Section 2, before she may be deemed a citizen. Such condition, if
imposed upon an alien wife, becomes unreasonably onerous and compliance
therewith manifestly difficult. The unreasonableness of such requirement is
shown by the following:
1. One of the qualifications required of an Applicant for naturalization under
Section 2 of the law is that the applicant "must have resided in the Philippines

for a continuous period of not less than ten years." If this requirement is applied
to an alien wife married to a Filipino citizen, this means that for a period of ten
years at least, she cannot hope to acquire the citizenship of her husband. If
the wife happens to be a citizen of a country whose law declares that upon her
marriage to a foreigner she automatically loses her citizenship and acquires
the citizenship of her husband, this could mean that for a period of ten years
at least, she would be stateless. And even after having acquired continuous
residence in the Philippines for ten years, there is no guarantee that her
petition for naturalization will be granted, in which case she would remain
stateless for an indefinite period of time.
2. Section 2 of the law likewise requires of the applicant for naturalization that
he "must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade,
profession, or lawful occupation." Considering the constitutional prohibition
against acquisition by an alien of real estate except in cases of hereditary
succession (Art. XIII, Sec. 5, Constitution), an alien wife desiring to acquire the
citizenship of her husband must have to prove that she has a lucrative income
derived from a lawful trade, profession or occupation. The income requirement
has been interpreted to mean that the petitioner herself must be the one to
possess the said income. (Uy v. Republic, L-19578, Oct. 27, 1964; Tanpa Ong
vs. Republic, L-20605, June 30, 1965; Li Tong Pek v. Republic, L-20912,
November 29, 1965). In other words, the wife must prove that she has a
lucrative income derived from sources other than her husband's trade,
profession or calling. It is of common knowledge, and judicial notice may be
taken of the fact that most wives in the Philippines do not have gainful
occupations of their own. Indeed, Philippine law, recognizing the dependence
of the wife upon the husband, imposes upon the latter the duty of supporting
the former. (Art. 291, Civil Code). It should be borne in mind that universally, it
is an accepted concept that when a woman marries, her primary duty is to be
a wife, mother and housekeeper. If an alien wife is not to be remiss in this duty,
how can she hope to acquire a lucrative income of her own to qualify her for
citizenship?
3. Under Section 2 of the law, the applicant for naturalization "must have
enrolled his minor children of school age, in any of the public schools or private
schools recognized by the Office of the Private Education of the Philippines,
where Philippine history, government and civics are taught or prescribed as
part of the school curriculum during the entire period of residence in the
Philippines required of him prior to the hearing of his petition for naturalization
as Philippine citizen." If an alien woman has minor children by a previous
marriage to another alien before she marries a Filipino, and such minor

36

children had not been enrolled in Philippine schools during her period of
residence in the country, she cannot qualify for naturalization under the
interpretation of this Court. The reason behind the requirement that children
should be enrolled in recognized educational institutions is that they follow the
citizenship of their father. (Chan Ho Lay v. Republic, L-5666, March 30, 1954;
Tan Hi v. Republic, 88 Phil. 117 [1951]; Hao Lian Chu v. Republic, 87 Phil. 668
[1950]; Yap Chin v. Republic, L-4177, May 29, 1953; Lim Lian Hong v.
Republic, L-3575, Dec. 26, 1950). Considering that said minor children by her
first husband generally follow the citizenship of their alien father, the basis for
such requirement as applied to her does not exist. Cessante ratione legis
cessat ipsa lex.

To remedy this anomalous condition, Act No. 3448 was enacted in 1928
adding section 13(a) to Act No. 2927 which provides that "any woman who is
now or may hereafter be married to a citizen of the Philippine Islands, and who
might herself be lawfully naturalized, shall be deemed a citizen of the
Philippine Islands. (Op. No. 22, s. 1941; emphasis ours).

4. Under Section 3 of the law, the 10-year continuous residence prescribed by

Section 2 "shall be understood as reduced to five years for any petitioner (who
is) married to a Filipino woman." It is absurd that an alien male married to a
Filipino wife should be required to reside only for five years in the Philippines
to qualify for citizenship, whereas an alien woman married to a Filipino
husband must reside for ten years.

A statute is to be construed with reference to its manifest object, and if the

language is susceptible of two constructions, one which will carry out and the
other defeat such manifest object, it should receive the former construction.
(In re National Guard, 71 Vt. 493, 45 A. 1051; Singer v. United States, 323
U.S. 338, 89 L. ed. 285. See also, U.S. v. Navarro, 19 Phil. 134 [1911]; U. S.
v. Toribio, 15 Phil. 85 [1910).

Thus under the interpretation given by this Court, it is more difficult for an alien
wife related by marriage to a Filipino citizen to become such citizen, than for a
foreigner who is not so related. And yet, it seems more than clear that the
general purpose of the first paragraph of Section 15 was obviously to accord
to an alien woman, by reason of her marriage to a Filipino, a privilege not
similarly granted to other aliens. It will be recalled that prior to the enactment
of Act No. 3448 in 1928, amending Act No. 2927 (the old Naturalization Law),
there was no law granting any special privilege to alien wives of Filipinos. They
were treated as any other foreigner. It was precisely to remedy this situation
that the Philippine legislature enacted Act No. 3448. On this point, the
observation made by the Secretary of Justice in 1941 is enlightening:

... A construction which will cause objectionable results should be avoided and
the court will, if possible, place on the statute a construction which will not
result in injustice, and in accordance with the decisions construing statutes, a
construction which will result in oppression, hardship, or inconveniences will
also be avoided, as will a construction which will prejudice public interest, or
construction resulting in unreasonableness, as well as a construction which
will result in absurd consequences.

It is true that under, Article 22 of the (Spanish) Civil Code, the wife follows the
nationality of the husband; but the Department of State of the United States on
October 31, 1921, ruled that the alien wife of a Filipino citizen is not a Filipino
citizen, pointing out that our Supreme Court in the leading case of Roa v.
Collector of Customs (23 Phil. 315) held that Articles 17 to 27 of the Civil Code
being political have been abrogated upon the cession of the Philippine Islands
to the United States. Accordingly, the stated taken by the Attorney-General
prior to the envictment of Act No. 3448, was that marriage of alien women to
Philippine citizens did not make the former citizens of this counting. (Op. Atty.
Gen., March 16, 1928) .

If Section 15 of the, Revised Naturalization Law were to be interpreted, as this

Court did, in such a way as to require that the alien wife must prove the
qualifications prescribed in Section 2, the privilege granted to alien wives
would become illusory. It is submitted that such a construction, being contrary
to the manifested object of the statute must be rejected.

So a construction should, if possible, be avoided if the result would be an

apparent inconsistency in legislative intent, as has been determined by the
judicial decisions, or which would result in futility, redundancy, or a conclusion
not contemplated by the legislature; and the court should adopt that
construction which will be the least likely to produce mischief. Unless plainly
shown to have been the intention of the legislature, an interpretation which
would render the requirements of the statute uncertain and vague is to be
avoided, and the court will not ascribe to the legislature an intent to confer an
illusory right. ... (82 C.J.S., Statutes, sec. 326, pp. 623-632).
7. In Choy King Tee and the second Ly Giok Ha, emphasis was laid on the
need for aligning the construction of Section 15 with "the national policy of
selective admission to Philippine citizenship." But the question may be asked,
is it reasonable to suppose that in the pursuit of such policy, the legislature
contemplated to make it more difficult if not practically impossible in some
instances, for an alien woman marrying a Filipino to become a Filipina than

37

any ordinary applicant for naturalization, as has just been demonstrated

above? It seems but natural and logical to assume that Section 15 was
intended to extend special treatment to alien women who by marrying a Filipino
irrevocably deliver themselves, their possessions, their fate and fortunes and
all that marriage implies to a citizen of this country, "for better or for worse."
Perhaps there can and will be cases wherein the personal conveniences and
benefits arising from Philippine citizenship may motivate such marriage, but
must the minority, as such cases are bound to be, serve as the criterion for the
construction of law? Moreover, it is not farfetched to believe that in joining a
Filipino family the alien woman is somehow disposed to assimilate the
customs, beliefs and ideals of Filipinos among whom, after all, she has to live
and associate, but surely, no one should expect her to do so even before
marriage. Besides, it may be considered that in reality the extension of
citizenship to her is made by the law not so much for her sake as for the
husband. Indeed, We find the following observations anent the national policy
rationalization in Choy King Tee and Ly Giok Ha (the second) to be quite
persuasive:
We respectfully suggest that this articulation of the national policy begs the
question. The avowed policy of "selectives admission" more particularly refers
to a case where citizenship is sought to be acquired in a judicial proceeding
for naturalization. In such a case, the courts should no doubt apply the national
policy of selecting only those who are worthy to become citizens. There is here
a choice between accepting or rejecting the application for citizenship. But this
policy finds no application in cases where citizenship is conferred by operation
of law. In such cases, the courts have no choice to accept or reject. If the
individual claiming citizenship by operation of law proves in legal proceedings
that he satisfies the statutory requirements, the courts cannot do otherwise
than to declare that he is a citizen of the Philippines. Thus, an individual who
is able to prove that his father is a Philippine citizen, is a citizen of the
Philippines, "irrespective of his moral character, ideological beliefs, and
identification with Filipino ideals, customs, and traditions." A minor child of a
person naturalized under the law, who is able to prove the fact of his birth in
the Philippines, is likewise a citizen, regardless of whether he has lucrative
income, or he adheres to the principles of the Constitution. So it is with an alien
wife of a Philippine citizen. She is required to prove only that she may herself
be lawfully naturalized, i.e., that she is not one of the disqualified persons
enumerated in Section 4 of the law, in order to establish her citizenship status
as a fact.
A paramount policy consideration of graver import should not be overlooked in
this regard, for it explains and justifies the obviously deliberate choice of words.

It is universally accepted that a State, in extending the privilege of citizenship

to an alien wife of one of its citizens could have had no other objective than to
maintain a unity of allegiance among the members of the family. (Nelson v.
Nelson, 113 Neb. 453, 203 N. W. 640 [1925]; see also "Convention on the
Nationality of Married Women: Historical Background and Commentary."
UNITED NATIONS, Department of Economic and Social Affairs E/CN, 6/399,
pp. 8 et seq.). Such objective can only be satisfactorily achieved by allowing
the wife to acquire citizenship derivatively through the husband. This is
particularly true in the Philippines where tradition and law has placed the
husband as head of the family, whose personal status and decisions govern
the life of the family group. Corollary to this, our laws look with favor on the
unity and solidarity of the family (Art. 220, Civil Code), in whose preservation
of State as a vital and enduring interest. (See Art. 216, Civil Code). Thus, it
has been said that by tradition in our country, there is a theoretic identity of
person and interest between husband and wife, and from the nature of the
relation, the home of one is that of the other. (See De la Via v. Villareal, 41
Phil. 13). It should likewise be said that because of the theoretic identity of
husband and wife, and the primacy of the husband, the nationality of husband
should be the nationality of the wife, and the laws upon one should be the law
upon the other. For as the court, in Hopkins v. Fachant (9th Cir., 1904) 65
C.C.A., 1, 130 Fed. 839, held: "The status of the wife follows that of the
husband, ... and by virtue of her marriage her husband's domicile became her
domicile." And the presumption under Philippine law being that the property
relations of husband and wife are under the regime of conjugal partnership
(Art. 119, Civil Code), the income of one is also that of the other.
It is, therefore, not congruent with our cherished traditions of family unity and
identity that a husband should be a citizen and the wife an alien, and that the
national treatment of one should be different from that of the other. Thus, it
cannot be that the husband's interests in property and business activities
reserved by law to citizens should not form part of the conjugal partnership
and be denied to the wife, nor that she herself cannot, through her own efforts
but for the benefit of the partnership, acquire such interests. Only in rare
instances should the identity of husband and wife be refused recognition, and
we submit that in respect of our citizenship laws, it should only be in the
instances where the wife suffers from the disqualifications stated in Section 4
of the Revised Naturalization Law. (Motion for Reconsideration, Burca vs.
Republic, supra.)
With all these considerations in mind, We are persuaded that it is in the best
interest of all concerned that Section 15 of the Naturalization Law be given
effect in the same way as it was understood and construed when the phrase

38

"who may be lawfully naturalized," found in the American statute from which it
was borrowed and copied verbatim, was applied by the American courts and
administrative authorities. There is merit, of course in the view that Philippine
statutes should be construed in the light of Philippine circumstances, and with
particular reference to our naturalization laws. We should realize the disparity
in the circumstances between the United States, as the so-called "melting pot"
of peoples from all over the world, and the Philippines as a developing country
whose Constitution is nationalistic almost in the come. Certainly, the writer of
this opinion cannot be the last in rather passionately insisting that our
jurisprudence should speak our own concepts and resort to American
authorities, to be sure, entitled to admiration, and respect, should not be
regarded as source of pride and indisputable authority. Still, We cannot close
our eyes to the undeniable fact that the provision of law now under scrutiny
has no local origin and orientation; it is purely American, factually taken bodily
from American law when the Philippines was under the dominating influence
of statutes of the United States Congress. It is indeed a sad commentary on
the work of our own legislature of the late 1920's and 1930's that given the
opportunity to break away from the old American pattern, it took no step in that
direction. Indeed, even after America made it patently clear in the Act of
Congress of September 22, 1922 that alien women marrying Americans
cannot be citizens of the United States without undergoing naturalization
proceedings, our legislators still chose to adopt the previous American law of
August 10, 1855 as embodied later in Section 1994 of the Revised Statutes of
1874, Which, it is worth reiterating, was consistently and uniformly understood
as conferring American citizenship to alien women marrying Americans ipso
facto, without having to submit to any naturalization proceeding and without
having to prove that they possess the special qualifications of residence, moral
character, adherence to American ideals and American constitution, provided
they show they did not suffer from any of the disqualifications enumerated in
the American Naturalization Law. Accordingly, We now hold, all previous
decisions of this Court indicating otherwise notwithstanding, that under Section
15 of Commonwealth Act 473, an alien woman marrying a Filipino, native born
or naturalized, becomes ipso facto a Filipina provided she is not disqualified to
be a citizen of the Philippines under Section 4 of the same law. Likewise, an
alien woman married to an alien who is subsequently naturalized here follows
the Philippine citizenship of her husband the moment he takes his oath as
Filipino citizen, provided that she does not suffer from any of the
disqualifications under said Section 4.
As under any other law rich in benefits for those coming under it, doubtless
there will be instances where unscrupulous persons will attempt to take

advantage of this provision of law by entering into fake and fictitious marriages
or mala fide matrimonies. We cannot as a matter of law hold that just because
of these possibilities, the construction of the provision should be otherwise
than as dictated inexorably by more ponderous relevant considerations, legal,
juridical and practical. There can always be means of discovering such
undesirable practice and every case can be dealt with accordingly as it arises.
III.
The third aspect of this case requires necessarily a re-examination of the ruling
of this Court in Burca, supra, regarding the need of judicial naturalization
proceedings before the alien wife of a Filipino may herself be considered or
deemed a Filipino. If this case which, as already noted, was submitted for
decision in 1964 yet, had only been decided earlier, before Go Im Ty, the
foregoing discussions would have been sufficient to dispose of it. The Court
could have held that despite her apparent lack of qualifications, her marriage
to her co-petitioner made her a Filipina, without her undergoing any
naturalization proceedings, provided she could sustain, her claim that she is
not disqualified under Section 4 of the law. But as things stand now, with the
Burca ruling, the question We have still to decide is, may she be deemed a
Filipina without submitting to a naturalization proceeding?
Naturally, if Burca is to be followed, it is clear that the answer to this question
must necessarily be in the affirmative. As already stated, however, the decision
in Burca has not yet become final because there is still pending with Us a
motion for its reconsideration which vigorously submits grounds worthy of
serious consideration by this Court. On this account, and for the reasons
expounded earlier in this opinion, this case is as good an occasion as any
other to re-examine the issue.
In the said decision, Justice Sanchez held for the Court:
We accordingly rule that: (1) An alien woman married to a Filipino who desires
to be a citizen of this country must apply therefore by filing a petition for
citizenship reciting that she possesses all the qualifications set forth in Section
2 and none of the disqualifications under Section 4, both of the Revised
Naturalization Law; (2) Said petition must be filed in the Court of First Instance
where petitioner has resided at least one year immediately preceding the filing
of the petition; and (3) Any action by any other office, agency, board or official,
administrative or otherwise other than the judgment of a competent court of
justice certifying or declaring that an alien wife of the Filipino citizen is also
a Filipino citizen, is hereby declared null and void.

39

3. We treat the present petition as one for naturalization. Or, in the words of
law, a "petition for citizenship". This is as it should be. Because a reading of
the petition will reveal at once that efforts were made to set forth therein, and
to prove afterwards, compliance with Sections 2 and 4 of the Revised
Naturalization law. The trial court itself apparently considered the petition as
one for naturalization, and, in fact, declared petitioner "a citizen of the
Philippines."
In other words, under this holding, in order for an alien woman marrying a
Filipino to be vested with Filipino citizenship, it is not enough that she
possesses the qualifications prescribed by Section 2 of the law and none of
the disqualifications enumerated in its Section 4. Over and above all these,
she has to pass thru the whole process of judicial naturalization apparently
from declaration of intention to oathtaking, before she can become a Filipina.
In plain words, her marriage to a Filipino is absolutely of no consequence to
her nationality vis-a-vis that of her Filipino husband; she remains to be the
national of the country to which she owed allegiance before her marriage, and
if she desires to be of one nationality with her husband, she has to wait for the
same time that any other applicant for naturalization needs to complete, the
required period of ten year residence, gain the knowledge of English or
Spanish and one of the principle local languages, make her children study in
Filipino schools, acquire real property or engage in some lawful occupation of
her own independently of her husband, file her declaration of intention and
after one year her application for naturalization, with the affidavits of two
credible witnesses of her good moral character and other qualifications, etc.,
etc., until a decision is ordered in her favor, after which, she has to undergo
the two years of probation, and only then, but not before she takes her oath as
citizen, will she begin to be considered and deemed to be a citizen of the
Philippines. Briefly, she can become a Filipino citizen only by judicial
declaration.
Such being the import of the Court's ruling, and it being quite obvious, on the
other hand, upon a cursory reading of the provision, in question, that the law
intends by it to spell out what is the "effect of naturalization on (the) wife and
children" of an alien, as plainly indicated by its title, and inasmuch as the
language of the provision itself clearly conveys the thought that some effect
beneficial to the wife is intended by it, rather than that she is not in any manner
to be benefited thereby, it behooves Us to take a second hard look at the ruling,
if only to see whether or not the Court might have overlooked any relevant
consideration warranting a conclusion different from that complained therein.
It is undeniable that the issue before Us is of grave importance, considering its
consequences upon tens of thousands of persons affected by the ruling therein

made by the Court, and surely, it is for Us to avoid, whenever possible, that
Our decision in any case should produce any adverse effect upon them not
contemplated either by the law or by the national policy it seeks to endorse.
AMICI CURIAE in the Burca case, respectable and impressive by their number
and standing in the Bar and well known for their reputation for intellectual
integrity, legal acumen and incisive and comprehensive resourcefulness in
research, truly evident in the quality of the memorandum they have submitted
in said case, invite Our attention to the impact of the decision therein thus:
The doctrine announced by this Honorable Court for the first time in the present
case -- that an alien woman who marries a Philippine citizen not only does
not ipso facto herself become a citizen but can acquire such citizenship only
through ordinary naturalization proceedings under the Revised Naturalization
Law, and that all administrative actions "certifying or declaring such woman to
be a Philippine citizen are null and void" has consequences that reach far
beyond the confines of the present case. Considerably more people are
affected, and affected deeply, than simply Mrs. Zita N. Burca. The newspapers
report that as many as 15 thousand women married to Philippine citizens are
affected by this decision of the Court. These are women of many and diverse
nationalities, including Chinese, Spanish, British, American, Columbian,
Finnish, Japanese, Chilean, and so on. These members of the community,
some of whom have been married to citizens for two or three decades, have
all exercised rights and privileges reserved by law to Philippine citizens. They
will have acquired, separately or in conjugal partnership with their citizen
husbands, real property, and they will have sold and transferred such property.
Many of these women may be in professions membership in which is limited
to citizens. Others are doubtless stockholders or officers or employees in
companies engaged in business activities for which a certain percentage of
Filipino equity content is prescribed by law. All these married women are now
faced with possible divestment of personal status and of rights acquired and
privileges exercised in reliance, in complete good faith, upon a reading of the
law that has been accepted as correct for more than two decades by the very
agencies of government charged with the administration of that law. We must
respectfully suggest that judicial doctrines which would visit such
comprehensive and far-reaching injury upon the wives and mothers of
Philippine citizens deserve intensive scrutiny and reexamination.
To be sure, this appeal can be no less than what this Court attended to in Gan
Tsitung vs. Republic, G.R. No. L-20819, Feb. 21, 1967, 19 SCRA 401 when
Chief Justice Concepcion observed:

40

The Court realizes, however, that the rulings in the Barretto and Delgado cases
although referring to situations the equities of which are not identical to
those obtaining in the case at bar may have contributed materially to the
irregularities committed therein and in other analogous cases, and induced the
parties concerned to believe, although erroneously, that the procedure
followed was valid under the law.
Accordingly, and in view of the implications of the issue under consideration,
the Solicitor General was required, not only, to comment thereon, but, also, to
state "how many cases there are, like the one at bar, in which certificates of
naturalization have been issued after notice of the filing of the petition for
naturalization had been published in the Official Gazette only once, within the
periods (a) from January 28, 1950" (when the decision in Delgado v. Republic
was promulgated) "to May 29, 1957" (when the Ong Son Cui was decided)
"and (b) from May 29, 1957 to November 29, 1965" (when the decision in the
present case was rendered).
After mature deliberation, and in the light of the reasons adduced in appellant's
motion for reconsideration and in the reply thereto of the Government, as well
as of the data contained in the latter, the Court holds that the doctrine laid
down in the Ong Son Cui case shall apply and affect the validity of certificates
of naturalization issued after, not on or before May 29, 1957.
Here We are met again by the same problem. In Gan Tsitung, the Court had
to expressly enjoin the prospective application of its construction of the law
made in a previous decision, 24 which had already become final, to serve the
ends of justice and equity. In the case at bar, We do not have to go that far.
As already observed, the decision in Burca still under reconsideration, while
the ruling in Lee Suan Ay, Lo San Tuang, Choy King Tee and others that
followed them have at the most become the law of the case only for the parties
thereto. If there are good grounds therefor, all We have to do now is to
reexamine the said rulings and clarify or modify them.
For ready reference, We requote Section 15:
Sec. 15. Effect of the naturalization on wife and children. Any woman who
is now or may hereafter be married to a citizen of the Philippines, and who
might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.
Minor children of persons naturalized under this law who have been born in
the Philippines shall be considered citizens thereof.

A foreign-born minor child, if dwelling in the Philippines at the time of

naturalization of the parents, shall automatically become a Philippine citizen,
and a foreign-born minor child, who is not in the Philippines at the time the
parent is naturalized, shall be deemed a Philippine citizen only during his
minority, unless he begins to reside permanently in the Philippines when still
a minor, in which case, he will continue to be a Philippine citizen even after
becoming of age.
A child born outside of the Philippines after the naturalization of his parent,
shall be considered a Philippine citizen, unless within one year after reaching
the age of majority, he fails to register himself as a Philippine citizen at the
American Consulate of the country where he resides, and to take the
necessary oath of allegiance.
It is obvious that the main subject-matter and purpose of the statute, the
Revised Naturalization Law or Commonwealth Act 473, as a whole, is to
establish a complete procedure for the judicial conferment of the status of
citizenship upon qualified aliens. After laying out such a procedure, remarkable
for its elaborate and careful inclusion of all safeguards against the possibility
of any undesirable persons becoming a part of our citizenry, it carefully but
categorically states the consequence of the naturalization of an alien
undergoing such procedure it prescribes upon the members of his immediate
family, his wife and children, 25 and, to that end, in no uncertain terms it ordains
that: (a) all his minor children who have been born in the Philippines shall be
"considered citizens" also; (b) all such minor children, if born outside the
Philippines but dwelling here at the time of such naturalization "shall
automatically become" Filipinos also, but those not born in the Philippines and
not in the Philippines at the time of such naturalization, are also redeemed
citizens of this country provided that they shall lose said status if they transfer
their permanent residence to a foreign country before becoming of age; (c) all
such minor children, if born outside of the Philippines after such naturalization,
shall also be "considered" Filipino citizens, unless they expatriate themselves
by failing to register as Filipinos at the Philippine (American) Consulate of the
country where they reside and take the necessary oath of allegiance; and (d)
as to the wife, she "shall be deemed a citizen of the Philippines" if she is one
"who might herself be lawfully naturalized". 26
No doubt whatever is entertained, so Burca holds very correctly, as to the point
that the minor children, falling within the conditions of place and time of birth
and residence prescribed in the provision, are vested with Philippine
citizenship directly by legislative fiat or by force of the law itself and without the
need for any judicial proceeding or declaration. (At p. 192, 19 SCRA). Indeed,

41

the language of the provision, is not susceptible of any other interpretation. But
it is claimed that the same expression "shall be deemed a citizen of the
Philippines" in reference to the wife, does not necessarily connote the vesting
of citizenship status upon her by legislative fiat because the antecedent phrase
requiring that she must be one "who might herself be lawfully naturalized"
implies that such status is intended to attach only after she has undergone the
whole process of judicial naturalization required of any person desiring to
become a Filipino. Stated otherwise, the ruling in Burca is that while Section
15 envisages and intends legislative naturalization as to the minor children,
the same section deliberately treats the wife differently and leaves her out for
the ordinary judicial naturalization.
Of course, it goes without saying that it is perfectly within the constitutional
authority of the Congress of the Philippines to confer or vest citizenship status
by legislative fiat. (U.S. v. Wong Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898];
See, 1 Taada & Carreon, Political Law of the Philippines 152 [1961 ed.]) In
fact, it has done so for particular individuals, like two foreign religious
prelates, 27 hence there is no reason it cannot do it for classes or groups of
persons under general conditions applicable to all of the members of such
class or group, like women who marry Filipinos, whether native-born or
naturalized. The issue before Us in this case is whether or not the legislature
hag done so in the disputed provisions of Section 15 of the Naturalization Law.
And Dr. Vicente G. Sinco, one of the most respect authorities on political law
in the Philippines 28 observes in this connection thus: "A special form of
naturalization is often observed by some states with respect to women. Thus
in the Philippines a foreign woman married to a Filipino citizen becomes ipso
facto naturalized, if she belongs to any of the classes who may apply for
naturalization under the Philippine Laws." (Sinco, Phil. Political Law 498-499
[10th ed. 1954]; emphasis ours; this comment is substantially reiterated in the
1962 edition, citing Ly Giok Ha and Ricardo Cua, supra.)
More importantly, it may be stated, at this juncture, that in construing the
provision of the United States statutes from which our law has been
copied, 28a the American courts have held that the alien wife does not acquire
American citizenship by choice but by operation of law. "In the Revised
Statutes the words "and taken" are omitted. The effect of this statute is that
every alien woman who marries a citizen of the United States becomes
perforce a citizen herself, without the formality of naturalization, and regardless
of her wish in that respect." (USCA 8, p. 601 [1970 ed.], citing Mackenzie v.
Hare, 1913, 134 P. 713, 165 Cal. 766, affirmed 36 S. Ct. 106, 239 U.S. 299,
60 L ed. 297.) .

We need not recount here again how this provision in question was first
enacted as paragraph (a) of Section 13, by way of an insertion into Act 2927
by Act 3448 of November 30, 1928, and that, in turn, and paragraph was
copied verbatim from Section 1994 of the Revised Statutes of the United
States, which by that time already had a long accepted construction among
the courts and administrative authorities in that country holding that under such
provision an alien woman who married a citizen became, upon such marriage,
likewise a citizen by force of law and as a consequence of the marriage itself
without having to undergo any naturalization proceedings, provided that, it
could be shown that at the time of such marriage, she was not disqualified to
be naturalized under the laws then in force. To repeat the discussion We
already made of these undeniable facts would unnecessarily make this
decision doubly extensive. The only point which might be reiterated for
emphasis at this juncture is that whereas in the United States, the American
Congress, recognizing the construction, of Section 1994 of the Revised
Statutes to be as stated above, and finding it desirable to avoid the effects of
such construction, approved the Act of September 22, 1922 Explicitly requiring
all such alien wives to submit to judicial naturalization albeit under more liberal
terms than those for other applicants for citizenship, on the other hand, the
Philippine Legislature, instead of following suit and adopting such a
requirement, enacted Act 3448 on November 30, 1928 which copied verbatim
the aforementioned Section 1994 of the Revised Statutes, thereby indicating
its preference to adopt the latter law and its settled construction rather than
the reform introduced by the Act of 1922.
Obviously, these considerations leave Us no choice. Much as this Court may
feel that as the United States herself has evidently found it to be an
improvement of her national policy vis-a-vis the alien wives of her citizens to
discontinue their automatic incorporation into the body of her citizenry without
passing through the judicial scrutiny of a naturalization proceeding, as it used
to be before 1922, it seems but proper, without evidencing any bit of colonial
mentality, that as a developing country, the Philippines adopt a similar policy,
unfortunately, the manner in which our own legislature has enacted our laws
on the subject, as recounted above, provides no basis for Us to construe said
law along the line of the 1922 modification of the American Law. For Us to do
so would be to indulge in judicial legislation which it is not institutionally
permissible for this Court to do. Worse, this court would be going precisely
against the grain of the implicit Legislative intent.
There is at least one decision of this Court before Burca wherein it seems it is
quite clearly implied that this Court is of the view that under Section 16 of the
Naturalization Law, the widow and children of an applicant for naturalization

42

who dies during the proceedings do not have to submit themselves to another
naturalization proceeding in order to avail of the benefits of the proceedings
involving the husband. Section 16 provides: .
SEC. 16. Right of widow and children of petitioners who have died. In case
a petitioner should die before the final decision has been rendered, his widow
and minor children may continue the proceedings. The decision rendered in
the case shall, so far as the widow and minor children are concerned, produce
the same legal effect as if it had been rendered during the life of the petitioner.
In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2 SCRA 383, this
Court held:
Invoking the above provisions in their favor, petitioners-appellants argue (1)
that under said Sec. 16, the widow and minor children are allowed to continue
the same proceedings and are not substituted for the original petitioner; (2)
that the qualifications of the original petitioner remain to be in issue and not
those of the widow and minor children, and (3) that said Section 16 applies
whether the petitioner dies before or after final decision is rendered, but before
the judgment becomes executory.
There is force in the first and second arguments. Even the second sentence
of said Section 16 contemplate the fact that the qualifications of the original
petitioner remains the subject of inquiry, for the simple reason that it states
that "The decision rendered in the case shall, so far as the widow and minor
children are concerned, produce the same legal effect as if it had been
rendered during the life of the petitioner." This phraseology emphasizes the
intent of the law to continue the proceedings with the deceased as the
theoretical petitioner, for if it were otherwise, it would have been unnecessary
to consider the decision rendered, as far as it affected the widow and the minor
children.
xxx xxx xxx
The Chua Chian case (supra), cited by the appellee, declared that a dead
person can not be bound to do things stipulated in the oath of allegiance,
because an oath is a personal matter. Therein, the widow prayed that she be
allowed to take the oath of allegiance for the deceased. In the case at bar,
petitioner Tan Lin merely asked that she be allowed to take the oath of
allegiance and the proper certificate of naturalization, once the naturalization
proceedings of her deceased husband, shall have been completed, not on
behalf of the deceased but on her own behalf and of her children, as recipients
of the benefits of his naturalization. In other words, the herein petitioner

proposed to take the oath of allegiance, as a citizen of the Philippines, by virtue

of the legal provision that "any woman who is now or may hereafter be married
to a citizen of the Philippines and who might herself be lawfully naturalized
shall be deemed a citizen of the Philippines. Minor children of persons
naturalized under this law who have been born in the Philippines shall be
considered citizens thereof." (Section 15, Commonwealth Act No. 473). The
decision granting citizenship to Lee Pa and the record of the case at bar, do
not show that the petitioning widow could not have been lawfully naturalized,
at the time Lee Pa filed his petition, apart from the fact that his 9 minor children
were all born in the Philippines. (Decision, In the Matter of the Petition of Lee
Pa to be admitted a citizen of the Philippines, Civil Case No. 16287, CFI,
Manila, Annex A; Record on Appeal, pp. 8-11). The reference to Chua Chian
case is, therefore, premature.
Section 16, as may be seen, is a parallel provision to Section 15. If the widow
of an applicant for naturalization as Filipino, who dies during the proceedings,
is not required to go through a naturalization preceeding, in order to be
considered as a Filipino citizen hereof, it should follow that the wife of a living
Filipino cannot be denied the same privilege. This is plain common sense and
there is absolutely no evidence that the Legislature intended to treat them
differently.
Additionally, We have carefully considered the arguments advanced in the
motion for reconsideration in Burca, and We see no reason to disagree with
the following views of counsel: .
It is obvious that the provision itself is a legislative declaration of who may be
considered citizens of the Philippines. It is a proposition too plain to be
disputed that Congress has the power not only to prescribe the mode or
manner under which foreigners may acquire citizenship, but also the very
power of conferring citizenship by legislative fiat. (U. S. v. Wong Kim Ark, 169
U. S. 649, 42 L. Ed. 890 [1898] ; see 1 Taada and Carreon, Political Law of
the Philippines 152 [1961 ed.]) The Constitution itself recognizes as Philippine
citizens "Those who are naturalized in accordance with law" (Section 1[5],
Article IV, Philippine Constitution). Citizens by naturalization, under this
provision, include not only those who are naturalized in accordance with legal
proceedings for the acquisition of citizenship, but also those who acquire
citizenship by "derivative naturalization" or by operation of law, as, for
example, the "naturalization" of an alien wife through the naturalization of her
husband, or by marriage of an alien woman to a citizen. (See Taada &
Carreon, op. cit. supra, at 152, 172; Velayo, Philippine Citizenship and

43

Naturalization 2 [1965 ed.]; 1 Paras, Civil Code 186 [1967 ed.]; see also 3
Hackworth, Digest of International Law 3).
The phrase "shall be deemed a citizen of the Philippines" found in Section 14
of the Revised Naturalization Law clearly manifests an intent to confer
citizenship. Construing a similar phrase found in the old U.S. naturalization law
(Revised Statutes, 1994), American courts have uniformly taken it to mean
that upon her marriage, the alien woman becomes by operation of law a citizen
of the United States as fully as if she had complied with all the provisions of
the statutes upon the subject of naturalization. (U.S. v. Keller, 13 F. 82; U.S.
Opinions of the US Attorney General dated June 4, 1874 [14 Op. 4021, July
20, 1909 [27 Op. 507], December 1, 1910 [28 Op. 508], Jan. 15, 1920 [32 Op.
2091 and Jan. 12, 1923 [23 398]).
The phrase "shall be deemed a citizen," in Section 1994 Revised Statute (U.S.
Comp. Stat. 1091, 1268) or as it was in the Act of 1855 (10 Stat. at L. 604,
Chapt. 71, Sec. 2), "shall be deemed and taken to be a citizens" while it may
imply that the person to whom it relates has not actually become a citizen by
the ordinary means or in the usual way, as by the judgment of a competent
court, upon a proper application and proof, yet it does not follow that such
person is on that account practically any the less a citizen. The word "deemed"
is the equivalent of "considered" or "judged," and therefore, whatever an Act
of Congress requires to be "deemed" or "taken" as true of any person or thing
must, in law, be considered as having been duly adjudged or established
concerning such person or thing, and have force and effect accordingly. When,
therefore, Congress declares that an alien woman shall, under certain
circumstances, be "deemed" an American citizen, the effect when the
contingency occurs, is equivalent to her being naturalized directly by an Act of
Congress or in the usual mode thereby prescribed. (Van Dyne, Citizenship of
the United States 239, cited in Velayo, Philippine Citizenship and
Naturalization 146-147 [1965 ed.]; emphasis ours).
That this was likewise the intent of the Philippine legislature when it enacted
the first paragraph of Section 15 of the Revised Naturalization Law is shown
by a textual analysis of the entire statutory provision. In its entirety, Section 15
reads:
(See supra).
The phrases "shall be deemed" "shall be considered," and "shall automatically
become" as used in the above provision, are undoubtedly synonymous. The
leading idea or purpose of the provision was to confer Philippine citizenship by
operation of law upon certain classes of aliens as a legal consequence of their

relationship, by blood or by affinity, to persons who are already citizens of the

Philippines. Whenever the fact of relationship of the persons enumerated in
the provision concurs with the fact of citizenship of the person to whom they
are related, the effect is for said persons to become ipso facto citizens of the
Philippines. "Ipso facto" as here used does not mean that all alien wives and
all minor children of Philippine citizens, from the mere fact of relationship,
necessarily become such citizens also. Those who do not meet the statutory
requirements do not ipso factobecome citizens; they must apply for
naturalization in order to acquire such status. What it does mean, however, is
that in respect of those persons enumerated in Section 15, the relationship to
a citizen of the Philippines is the operative fact which establishes the
acquisition of Philippine citizenship by them. Necessarily, it also determines
the point of time at which such citizenship commences. Thus, under the
second paragraph of Section 15, a minor child of a Filipino naturalized under
the law, who was born in the Philippines, becomes ipso facto a citizen of the
Philippines from the time the fact of relationship concurs with the fact of
citizenship of his parent, and the time when the child became a citizen does
not depend upon the time that he is able to prove that he was born in the
Philippines. The child may prove some 25 years after the naturalization of his
father that he was born in the Philippines and should, therefore, be
"considered" a citizen thereof. It does not mean that he became a Philippine
citizen only at that later time. Similarly, an alien woman who married a
Philippine citizen may be able to prove only some 25 years after her marriage
(perhaps, because it was only 25 years after the marriage that her citizenship
status became in question), that she is one who might herself be lawfully
naturalized." It is not reasonable to conclude that she acquired Philippine
citizenship only after she had proven that she "might herself be lawfully
naturalized." It is not reasonable to conclude that she acquired Philippine
citizenship only after she had proven that she "might herself be lawfully
naturalized."
The point that bears emphasis in this regard is that in adopting the very
phraseology of the law, the legislature could not have intended that an alien
wife should not be deemed a Philippine citizenunless and until she proves that
she might herself be lawfully naturalized. Far from it, the law states in plain
terms that she shall be deemed a citizen of the Philippines if she is one "who
might herself be lawfully naturalized." The proviso that she must be one "who
might herself be lawfully naturalized" is not a condition precedent to the vesting
or acquisition of citizenship; it is only a condition or a state of fact necessary
to establish her citizenship as a factum probandum, i.e., as a fact established
and proved in evidence. The word "might," as used in that phrase, precisely

44

replies that at the time of her marriage to a Philippine citizen, the alien woman
"had (the) power" to become such a citizen herself under the laws then in force.
(Owen v. Kelly, 6 DC 191 [1867], aff'd Kelly v. Owen, 76 US 496, 19 L ed 283
[1869). That she establishes such power long after her marriage does not alter
the fact that at her marriage, she became a citizen.
(This Court has held) that "an alien wife of a Filipino citizen may not acquire the
status of a citizen of the Philippines unless there is proof that she herself may
be lawfully naturalized" (Decision, pp. 3-4). Under this view, the "acquisition"
of citizenship by the alien wife depends on her having proven her qualifications
for citizenship, that is, she is not a citizen unless and until she proves that she
may herself be lawfully naturalized. It is clear from the words of the law that
the proviso does not mean that she must first prove that she "might herself be
lawfully naturalized" before she shall be deemed (by Congress, not by the
courts) a citizen. Even the "uniform" decisions cited by this Court (at fn. 2) to
support its holding did not rule that the alien wife becomes a citizen
only after she has proven her qualifications for citizenship. What those
decisions ruled was that the alien wives in those cases failed to prove their
qualifications and therefore they failed to establish their claim to citizenship.
Thus in Ly Giok Ha v. Galang, 101 Phil. 459 [l957], the case was remanded to
the lower court for determination of whether petitioner, whose claim to
citizenship by marriage to a Filipino was disputed by the Government, "might
herself be lawfully naturalized," for the purpose of " proving her alleged change
of political status from alien to citizen" (at 464). In Cua v. Board, 101 Phil. 521
[1957], the alien wife who was being deported, claimed she was a Philippine
citizen by marriage to a Filipino. This Court finding that there was no proof that
she was not disqualified under Section 4 of the Revised Naturalization Law,
ruled that: "No such evidence appearing on record, the claim of assumption of
Philippine citizenship by Tijoe Wu Suan, upon her marriage to petitioner, is
untenable." (at 523) It will be observed that in these decisions cited by this
Court, the lack of proof that the alien wives "might (themselves) be lawfully
naturalized" did not necessarily imply that they did not become, in truth and in
fact, citizens upon their marriage to Filipinos. What the decisions merely held
was that these wives failed to establish their claim to that status as a proven
fact.
In all instances where citizenship is conferred by operation of law, the time
when citizenship is conferred should not be confused with the time when
citizenship status is established as a proven fact. Thus, even a natural-born
citizen of the Philippines, whose citizenship status is put in issue in any
proceeding would be required to prove, for instance, that his father is a citizen
of the Philippines in order to factually establish his claim to citizenship.* His

citizenship status commences from the time of birth, although his claim thereto
is established as a fact only at a subsequent time. Likewise, an alien woman
who might herself be lawfully naturalized becomes a Philippine citizen at the
time of her marriage to a Filipino husband, not at the time she is able to
establish that status as a proven fact by showing that she might herself be
lawfully naturalized. Indeed, there is no difference between a statutory
declaration that a person is deemed a citizen of the Philippines provided his
father is such citizen from a declaration that an alien woman married to a
Filipino citizen of the Philippines provided she might herself be lawfully
naturalized. Both become citizens by operation of law; the former becomes a
citizen ipso facto upon birth; the later ipso facto upon marriage.
It is true that unless and until the alien wife proves that she might herself be
lawfully naturalized, it cannot be said that she has established her status as a
proven fact. But neither can it be said that on that account, she did not become
a citizen of the Philippines. If her citizenship status is not questioned in any
legal proceeding, she obviously has no obligation to establish her status as a
fact. In such a case, the presumption of law should be that she is what she
claims to be. (U.S. v. Roxas, 5 Phil. 375 [1905]; Hilado v. Assad, 51 O.G. 4527
[1955]). There is a presumption that a representation shown to have been
made is true. (Aetna Indemnity Co. v. George A. Fuller, Co., 73 A. 738, 74 A.
369, 111 ME. 321).
The question that keeps bouncing back as a consequence of the foregoing
views is, what substitute is them for naturalization proceedings to enable the
alien wife of a Philippine citizen to have the matter of her own citizenship
settled and established so that she may not have to be called upon to prove it
everytime she has to perform an act or enter in to a transaction or business or
exercise a right reserved only to Filipinos? The ready answer to such question
is that as the laws of our country, both substantive and procedural, stand
today, there is no such procedure, but such paucity is no proof that the
citizenship under discussion is not vested as of the date of marriage or the
husband's acquisition of citizenship, as the case may be, for the truth is that
the same situation objections even as to native-born Filipinos. Everytime the
citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered as
res adjudicata, hence it has to be threshed out again and again as the
occasion may demand. This, as We view it, is the sense in which Justice Dizon
referred to "appropriate proceeding" in Brito v. Commissioner, supra. Indeed,
only the good sense and judgment of those subsequently inquiring into the
matter may make the effort easier or simpler for the persons concerned by

45

relying somehow on the antecedent official findings, even if these are not really
binding.
It may not be amiss to suggest, however, that in order to have a good starting
point and so that the most immediate relevant public records may be kept in
order, the following observations in Opinion No. 38, series of 1958, of then
Acting Secretary of Justice Jesus G. Barrera, may be considered as the most
appropriate initial step by the interested parties:
Regarding the steps that should be taken by an alien woman married to a
Filipino citizen in order to acquire Philippine citizenship, the procedure followed
in the Bureau of Immigration is as follows: The alien woman must file a petition
for the cancellation of her alien certificate of registration alleging, among other
things, that she is married to a Filipino, citizen and that she is not disqualified
from acquiring her husband's citizenship pursuant to section 4 of
Commonwealth Act No. 473, as amended. Upon the filing of said petition,
which should be accompanied or supported by the joint affidavit of the
petitioner and her Filipino husband to the effect that the petitioner does not
belong to any of the groups disqualified by the cited section from becoming
naturalized Filipino citizen (please see attached CEB Form 1), the Bureau of
Immigration conducts an investigation and thereafter promulgates its order or
decision granting or denying the petition.
Once the Commissioner of Immigration cancels the subject's registration as
an alien, there will probably be less difficulty in establishing her Filipino
citizenship in any other proceeding, depending naturally on the substance and
vigor of the opposition.
Before closing, it is perhaps best to clarify that this third issue We have passed
upon was not touched by the trial court, but as the point is decisive in this case,
the Court prefers that the matter be settled once and for all now.
IN VIEW OF ALL THE FOREGOING, the judgment of the Court a
quo dismissing appellants' petition for injunction is hereby reversed and the
Commissioner of Immigration and/or his authorized representative is
permanently enjoined from causing the arrest and deportation and the
confiscation of the bond of appellant Lau Yuen Yeung, who is hereby declared
to have become a Filipino citizen from and by virtue of her marriage to her coappellant Moy Ya Lim Yao alias Edilberto Aguinaldo Lim, a Filipino citizen on
January 25, 1962. No costs.
Dizon, Castro, Teehankee and Villamor, JJ., concur.

Footnotes
1 Followed in Kua Suy, etc., et al. vs. The Commissioner of Immigration, G.R.
No. L-13790, promulgated Oct. 31, 1963, 9 SCRA 300; Lu Choy Fa vs.
Commissioner, G.R. No. L-20597, Nov. 29, 1963, 9 SCRA 604; the other
cases are discussed in the opinion.
2 Justices Makalintal and Castro concurred only in the result.
3 Kua Suy v. Commissioner, G.R. No. L-13790, Oct. 31, 1963, 9 SCRA 300;
Lo San Tuang v. Galang, G. R. No. L-18775, Nov. 30, 1963, 9 SCRA 638; Sun
Peck Yong v. Commissioner, G.R. No. L-20784, Dec. 27, 1963, 9 SCRA 874;
Tong Siok Sy v. Vivo, G.R. No. L-21136, Dec. 27, 1963, 9 SCRA 876; Choy
King Tee v. Galang, G.R. No. L-18351, March 26, 1965, 13 SCRA 402; Austria
v. Conchu, G.R. No. L-20716, June 22, 1965, 14 SCRA 336; Brito v.
Commissioner, G.R. No. L-16829, June 30, 1965, 14 SCRA 539; Ly Giok Ha
v. Galang (2nd), G. R. No. L-21332, March 18, 1966, 16 SCRA 414; Go Im Ty
v. Rep., G.R. No. L-17919, July 30, 1966, 17 SCRA 797.
4 Supra. (101 Phil. 459).
* See, also Ops. Sec. of Justice, No. 28, s. 1950; No. 96, s. 1949; Nos. 43, 58,
98 and 281, s. 1948; No. 95, s. 1941; Nos. 79 and 168, s. 1940.
5 In the deliberations, Chief Justice Concepcion explained that his opinion was
not meant to give that impression.
6 Justice Barrera penned the decision in Sun Peck Yong, supra, and Tong
Siok Sy v. Vivo, supra.
* Section 15, Commonwealth Act No. 473; Ly Giok Ha @ Wy Giok Ha v.
Galang, 54 Off. Gaz., 356.
7 To avoid repetition, the pertinent portions of the opinion will be quoted in a
more appropriate place later in this decision.
8 G.R. No. L-21332, March 18, 1966, 16 SCRA 414.
9 Pertinent portions of the opinion of Justice Reyes will be quoted later in a
more appropriate place in this decision.
10 17 SCRA 797.

46

11 See id., pp. 801-804.

12 One can easily perceive from the language of Justice Makalintal in Choy
King Tee that he was expressing the consensus of the Court's membership
then rather than his own personal views.
13 The law firms PAREDES, POBLADOR & NAZARENO; LICHAUCO,
PICAZO & AGCAOLI; MEER, MEER & MEER; PONCE ENRILE, SIGUION
REYNA, MONTECILLO & BELO; RAMIREZ & ORTIGAS; SALVA, CHUA &
ASSO.; and SYCIP, SALAZAR, LUNA, MANALO & FELICIANO.
14 See quotation from Lo San Tuang earlier on pp. 27-32 of this opinion.
15 See opinion of the Secretary of Justice, No. 79, s. 1940.
16 For ready reference, attached as an appendix of this decision is a brief
study of all the naturalization laws of the United States from 1790 to 1970
showing how the matter of qualifications and disqualifications, whether racial
or otherwise, have been treated in the said statutes, from which it can be
readily seen that the disqualification of alien wives from becoming citizens has
not been always exclusively on racial grounds during the period that the Act of
Feb. 10, 1855 and, later, section 1994 of the Revised Statutes were in force.
17 The statement in Sinco's book cited by Justice Regala in Lo San Tuang
does not indicate any authoritative source. In any event, for the reasons
already stated the racial motive could at most be only one of the reasons for
the elimination of Section 1.
18 A more extensive discussion of the relevance of this repeal of 1922 is made
further in this opinion.
19 Decided, April 15, 1869, next to Burton v. Burton, 40 N. Y. 373.
20 More accurately, the phrase "free white persons," does not only refer to
people of the white race but also to non-slaves.

(h) Citizens or subjects of a foreign country other than the United States,
whose laws do not grant Filipinos the right to become naturalized citizens or
subjects thereof.
23 After Ly Giok Ha and Cua, the Secretary of Justice found more reason to
sustain the previous view of the Department on the matter. See opinions
already cited.
24 Og Son Cui v. Republic, G.R. No. L-9858, May 29, 1957, 101 Phil. 649.
25 Somehow, the language of the whole law conveys the idea that only male
aliens are contemplated for judicial naturalization.
26 Three possible situations are contemplated, namely: (a) the woman is
already married to the alien before the latter's naturalization; (b) she marries
him after such naturalization; or (c) she marries a native-born Filipino; in all
these instances, the effect of marriage is the same.
27 Brother Cannon of La Salle College and Father Moran of Ateneo University.
28 Former Dean of the College of Law, U.P. and later President of the
University, now delegate to the Constitutional Convention of 1971.
28a Sec. 1994 Revised Statutes.
* It should be observed, parenthetically, that by its very nature, citizenship is
one of the most difficult facts to prove.

G.R. No. 120295 June 28, 1996

JUAN
G.
FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996

21 In this connection, it is to be noted that all the naturalization laws of the

United States from 1790 provided for such qualifications of residence, good
moral character, adherence to the Constitution.
22 (f) Persons who, during the period of their residence in the Philippines, have
not mingled socially with the Filipinos, or who have not evinced a sincere
desire to learn and embrace the customs, traditions, and ideals of the Filipinos;

RAUL
R.
LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p

47

The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes
in three successive elections but who was twice declared by this Court to be
disqualified to hold such office due to his alien citizenship, and who now claims
to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims
that the votes cast in favor of Frivaldo should be considered void; that the
electorate should be deemed to have intentionally thrown away their ballots;
and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted
directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the ineligibility
of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and
elections, and upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court
for certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division, 1 promulgated
on December 19, 1995 2 and another Resolution of the Comelec en
banc promulgated February 23, 1996 3 denying petitioner's motion for
reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections.
On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a
petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo
"be disqualified from seeking or holding any public office or position by reason
of not yet being a citizen of the Philippines", and that his Certificate of
Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution 5granting the petition with the following disposition 6:

WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on
the ground that he is NOT a citizen of the Philippines. Accordingly,
respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until
after the May 8, 1995 elections. So, his candidacy continued and he was voted
for during the elections held on said date. On May 11, 1995, the Comelec en
banc 7 affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes 8dated May 27, 1995 was issued showing
the following votes obtained by the candidates for the position of Governor of
Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition 9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to the petition
"only on June 29, 1995," the Comelec en banc directed "the Provincial Board
of Canvassers of Sorsogon to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June
30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as
SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation
of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00
in the afternoon, he took his oath of allegiance as a citizen of the Philippines
after "his petition for repatriation under P.D. 725 which he filed with the Special
Committee on Naturalization in September 1994 had been granted". As such,
when "the said order (dated June 21, 1995) (of the Comelec) . . . was released
and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there
was no more legal impediment to the proclamation (of Frivaldo) as governor .
. ." In the alternative, he averred that pursuant to the two cases of Labo

48

vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said position of
governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution 13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30,
1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to
hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul
R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to
law, he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on
the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as
the duly elected Governor of Sorsogon having garnered the highest number of
votes, and he having reacquired his Filipino citizenship by repatriation on June
30, 1995 under the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881),
the Clerk of the Commission is directed to notify His Excellency the President
of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the
Province of Sorsogon of this resolution immediately upon the due
implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was
denied by the Comelec en banc in its Resolution 14 promulgated on February
23, 1996. On February 26, 1996, the present petition was filed. Acting on the
prayer for a temporary restraining order, this Court issued on February 27,
1996 a Resolution which inter alia directed the parties "to maintain the status
quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in
the following propositions" 15:

First -- The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with the
result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be elected to and
to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the
effect thereof retroactive as to cure his ineligibility and qualify him to hold the
Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the
validity of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the
first two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution 16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different
ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after notice and hearing, not later than fifteen days before the election.
(Emphasis supplied.)

49

the Comelec had no jurisdiction to issue said Resolutions because they were
not rendered "within the period allowed by law" i.e., "not later than fifteen days
before the election."

The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are secondary
to this.

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on
the petition for disqualification within the period of fifteen days prior to the
election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.

The Local Government Code of 1991 19 expressly requires Philippine

citizenship as a qualification for elective local officials, including that of
provincial governor, thus:

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment and
are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as
follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure
his lack of citizenship as to qualify him to be proclaimed and to hold the Office
of Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino
citizenship a continuing bar to his eligibility to run for, be elected to or hold the
governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in
SPC No. 95-317 considering that said petition is not "a pre-proclamation case,
an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in
light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not
rendered within the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected;
a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is
therefore incumbent upon him to show that he has reacquired citizenship; in
fine, that he possesses the qualifications prescribed under the said statute
(R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R.
No. 104654 22 and during the oral argument in this case that he tried to resume
his citizenship by direct act of Congress, but that the bill allowing him to do so
"failed to materialize, notwithstanding the endorsement of several members of
the House of Representatives" due, according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at naturalization was rejected by
this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected
governor by the electorate of Sorsogon, with a margin of 27,000 votes in the
1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent
Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate. Now, he
comes to us a third time, with a fresh vote from the people of Sorsogon and a

50

favorable decision from the Commission on Elections to boot. Moreover, he

now boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than
the Solicitor General himself, who was the prime opposing counsel in the
previous cases he lost, this time, as counsel for co-respondent Comelec,
arguing the validity of his cause (in addition to his able private counsel Sixto
S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of
said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists
that he -- not Lee -- should have been proclaimed as the duly-elected governor
of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the
said date since, clearly and unquestionably, he garnered the highest number
of votes in the elections and since at that time, he already reacquired his
citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious
defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting
that "then President Corazon Aquino exercising legislative powers under the
Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship
by Presidential Decree or Executive Issuances as the same poses a serious
and contentious issue of policy which the present government, in the exercise
of prudence and sound discretion, should best leave to the judgment of the
first Congress under the 1987 Constitution", adding that in her memorandum
dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and
all proceedings within your functional area of responsibility as defined under
Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D.
No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be
express or implied. It is obvious that no express repeal was made because
then President Aquino in her memorandum -- based on the copy furnished us
by Lee -- did not categorically and/or impliedly state that P.D. 725 was being
repealed or was being rendered without any legal effect. In fact, she did not
even mention it specifically by its number or text. On the other hand, it is a
basic rule of statutory construction that repeals by implication are not favored.
An implied repeal will not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws are clearly repugnant and
patently inconsistent that they cannot co-exist". 26

The memorandum of then President Aquino cannot even be regarded as a

legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt the
acceptance and processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution" might make. In other
words, the former President did not repeal P.D. 725 but left it to the first
Congress -- once created -- to deal with the matter. If she had intended to
repeal such law, she should have unequivocally said so instead of referring
the matter to Congress. The fact is she carefully couched her presidential
issuance in terms that clearly indicated the intention of "the present
government, in the exercise of prudence and sound discretion" to leave the
matter of repeal to the new Congress. Any other interpretation of the said
Presidential Memorandum, such as is now being proffered to the Court by Lee,
would visit unmitigated violence not only upon statutory construction but on
common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 . . . (and) was approved in just one day or on June 30,
1995 . . .", which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the
Office of the President in Malacaang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special Committee was
reactivated only on June 8, 1995, when presumably the said Committee
started processing his application. On June 29, 1995, he filled up and resubmitted the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent haste" in the
processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee
on Naturalization was intended solely for the personal interest of
respondent," 27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were

51

speeded up is by itself not a ground to conclude that such proceedings were

necessarily tainted. After all, the requirements of repatriation under P.D. No.
725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact,
P.D.
725 29 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee
to promulgate. This is not unusual since, unlike in naturalization where an alien
covets a first-timeentry into Philippine political life, in repatriation the applicant
is a former natural-born Filipino who is merely seeking to reacquire his
previous citizenship. In the case of Frivaldo, he was undoubtedly a naturalborn citizen who openly and faithfully served his country and his province prior
to his naturalization in the United States -- a naturalization he insists was made
necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace -- and who, after the fall of the dictator and
the re-establishment of democratic space, wasted no time in returning to his
country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General,
were granted repatriation argues convincingly and conclusively against the
existence of favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have been pursued
before the Committee itself, and, failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid,
nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995
whereas the citizenship qualification prescribed by the Local Government
Code "must exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 104654 30 which held that "both
the Local Government Code and the Constitution require that only Philippine
citizens can run and be elected to public office." Obviously, however, this was
a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since the
Court held his naturalization to be invalid, then the issue of when an aspirant
for public office should be a citizen was NOT resolved at all by the Court. Which
question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must
be:
* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province . . . where

he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of
the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least
twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular
date or time when the candidate must possess citizenship, unlike that for
residence (which must consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective
public office, 31 and the purpose of the citizenship qualification is none other
than to ensure that no alien, i.e., no person owing allegiance to another nation,
shall govern our people and our country or a unit of territory thereof. Now, an
official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very
day 32 the term of office of governor (and other elective officials) began -- he
was therefore already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In short, at
that time, he was already qualified to govern his native Sorsogon. This is the
liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So
too, even from a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of "Qualifications"
of "ELECTIVE OFFICIALS", not of candidates. Why then should such
qualification be required at the time of election or at the time of the filing of the
certificates of candidacies, as Lee insists? Literally, such qualifications -unless otherwise expressly conditioned, as in the case of age and residence - should thus be possessed when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at the start of his term -- in this
case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap
and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to
ensure that our people and country do not end up being governed by
aliens,i.e., persons owing allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by construing the citizenship

52

qualification as applying to the time of proclamation of the elected official and

at the start of his term.

It is thus clear that Frivaldo is a registered voter in the province where he

intended to be elected.

But perhaps the more difficult objection was the one raised during the oral
argument 34 to the effect that the citizenship qualification should be possessed
at the time the candidate (or for that matter the elected official) registered as a
voter. After all, Section 39, apart from requiring the official to be a citizen, also
specifies as another item of qualification, that he be a "registered voter". And,
under the law 35 a "voter" must be a citizen of the Philippines. So therefore,
Frivaldo could not have been a voter -- much less a validly registered one -- if
he was not a citizen at the time of such registration.

There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of election or
date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code 38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a
candidate. This is the only provision of the Code that authorizes a remedy on
how to contest before the Comelec an incumbent's ineligibility arising from
failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within
ten days after proclamation" of the winning candidate. Hence, it is only at such
time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m.,
June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having
taken his oath of allegiance earlier in the afternoon of the same day, then he
should have been the candidate proclaimed as he unquestionably garnered
the highest number of votes in the immediately preceding elections and such
oath had already cured his previous "judicially-declared" alienage. Hence, at
such time, he was no longer ineligible.

The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended thecitizenship qualification to be possessed
prior to election consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if being
a voter presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from "citizenship"),
not to reiterate the need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e.,
the law states: "a registered voter in the barangay, municipality, city, or
province . . . where he intends to be elected." It should be emphasized that the
Local Government Code requires an elective official to be a registered voter.
It does not require him to vote actually. Hence, registration -- not the actual
voting -- is the core of this "qualification". In other words, the law's purpose in
this second requirement is to ensure that the prospective official is actually
registered in the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not
disputed -- that he "was and is a registered voter of Sorsogon, and his
registration as a voter has been sustained as valid by judicial declaration . . .
In fact, he cast his vote in his precinct on May 8, 1995." 36
So too, during the oral argument, his counsel steadfastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter
was questioned, but the court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections including
on May 8, 1995." 37

But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETROACTED to the date of the filing of his application
on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled
exceptions 40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which undertake to cure
errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of some
statutory disability or failure to comply with some technical requirement. They
operate on conditions already existing, and are necessarily retroactive in
operation. Agpalo, 42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing
obligations . . . (and) are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. . . . By their very nature, curative statutes
are retroactive . . . (and) reach back to past events to correct errors or

53

irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to
remedies or modes of procedure, which do not create new or take away vested
rights, but only operate in furtherance of the remedy or confirmation of such
rights, ordinarily do not come within the legal meaning of a retrospective law,
nor within the general rule against the retrospective operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new right, and also
provides for a new remedy, thereby filling certain voids in our laws. Thus, in its
preamble, P.D. 725 expressly recognizes the plight of "many Filipino women
(who) had lost their Philippine citizenship by marriage to aliens" and who could
not, under the existing law (C.A. No. 63, as amended) avail of repatriation until
"after the death of their husbands or the termination of their marital status" and
who could neither be benefitted by the 1973 Constitution's new provision
allowing "a Filipino woman who marries an alien to retain her Philippine
citizenship . . ." because "such provision of the new Constitution does not apply
to Filipino women who had married aliens before said constitution took effect."
Thus, P.D. 725 granted a new right to these women -- the right to re-acquire
Filipino citizenship even during their marital coverture, which right did not exist
prior to P.D. 725. On the other hand, said statute also provided a new
remedyand a new right in favor of other "natural born Filipinos who (had) lost
their Philippine citizenship but now desire to re-acquire Philippine citizenship",
because prior to the promulgation of P.D. 725 such former Filipinos would have
had to undergo the tedious and cumbersome process of naturalization, but
with the advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.
The Solicitor General 44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA
342), since they are intended to supply defects, abridge superfluities in existing
laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and
curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it
is unarguable that the legislative intent was precisely to give the statute
retroactive operation. "(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45 It is obvious
to the Court that the statute was meant to "reach back" to those persons,
events and transactions not otherwise covered by prevailing law and
jurisprudence. And inasmuch as it has been held that citizenship is a political
and civil right equally as important as the freedom of speech, liberty of abode,
the right against unreasonable searches and seizures and other guarantees
enshrined in the Bill of Rights, therefore the legislative intent to give
retrospective operation to P.D. 725 must be given the fullest effect possible.
"(I)t has been said that a remedial statute must be so construed as to make it
effect the evident purpose for which it was enacted, so that if the reason of the
statute extends to past transactions, as well as to those in the future, then it
will be so applied although the statute does not in terms so direct, unless to do
so would impair some vested right or violate some constitutional
guaranty." 46 This is all the more true of P.D. 725, which did not specify any
restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D.
725 benefit Frivaldo considering that said law was enacted on June 5, 1975,
while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D.
725) which is to be given retroactive effect, but even the repatriation granted
under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted
to the date of his application therefor, August 17, 1994. The reason for this is
simply that if, as in this case, it was the intent of the legislative authority that
the law should apply to past events -- i.e., situations and transactions existing
even before the law came into being -- in order to benefit the greatest number
of former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is
to be given the fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such law. That is, the

54

repatriation granted to Frivaldo on June 30, 1995 can and should be made to
take effect as of date of his application. As earlier mentioned, there is nothing
in the law that would bar this or would show a contrary intention on the part of
the legislative authority; and there is no showing that damage or prejudice to
anyone, or anything unjust or injurious would result from giving retroactivity to
his repatriation. Neither has Lee shown that there will result the impairment of
any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects there
were in his nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent
prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and
the Special Committee decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the former Filipinos who
may be stateless, as Frivaldo -- having already renounced his American
citizenship -- was, may be prejudiced for causes outside their control. This
should not be. In case of doubt in the interpretation or application of laws, it is
to be presumed that the law-making body intended right and justice to
prevail. 47
And as experience will show, the Special Committee was able to process, act
upon and grant applications for repatriation within relatively short spans of time
after the same were filed. 48 The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice to the government as a result
of giving retroactivity to repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a person's repatriation has
the effect of wiping out a liability of his to the government arising in connection
with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present
in the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing
unjust or iniquitous in treating Frivaldo's repatriation as having become
effective as of the date of his application, i.e., on August 17, 1994. This being
so, all questions about his possession of the nationality qualification -- whether
at the date of proclamation (June 30, 1995) or the date of election (May 8,
1995) or date of filing his certificate of candidacy (March 20, 1995) would
become moot.

Based on the foregoing, any question regarding Frivaldo's status as a

registered voter would also be deemed settled. Inasmuch as he is considered
as having been repatriated -- i.e., his Filipino citizenship restored -- as of
August 17, 1994, his previous registration as a voter is likewise deemed
validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American.
Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?" 49 We answer this
question in the negative, as there is cogent reason to hold that Frivaldo was
really STATELESS at the time he took said oath of allegiance and even before
that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he
"had long renounced and had long abandoned his American citizenship -- long
before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he
abandoned and renounced his US citizenship but before he was repatriated to
his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated December 19,
1995: 51
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine Government
when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of
candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before
the elections of 1995 have not been effectively rebutted by Lee. Furthermore,
it is basic that such findings of the Commission are conclusive upon this Court,
absent
any
showing
of
capriciousness
or
arbitrariness
or
abuse. 52
The
Second
Issue:
a Continuing Disqualification?

Is

Lack

of

Citizenship

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in totoby Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days or
on May 17, 1995, no restraining order having been issued by this Honorable
Court. 54 Hence, before Lee "was proclaimed as the elected governor on June
30, 1995, there was already a final and executory judgment disqualifying"
Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes
were legally "correct") declaring Frivaldo an alien have also become final and

55

executory way before the 1995 elections, and these "judicial pronouncements
of his political status as an American citizen absolutely and for all time
disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo
was rendered in connection with the 1988 elections while that in G.R. No.
104654 was in connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed Resolution: 55
The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the
1988 and 1992 elections. However, there is no record of any "final judgment"
of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections.
What the Commission said in its Order of June 21, 1995 (implemented on June
30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not
a Filipino citizen "having been declared by the Supreme Court in its Order
dated March 25, 1995, not a citizen of the Philippines." This declaration of the
Supreme Court, however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of the
modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of
Immigration, 56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered res
judicata, hence it has to be threshed out again and again, as the occasion
demands.
The
Third
Issue:
Over The Petition in SPC No. 95-317

Comelec's

Jurisdiction

Lee also avers that respondent Comelec had no jurisdiction to entertain the
petition in SPC No. 95-317 because the only "possible types of proceedings
that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317

questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day
reglementary period." Hence, according to him, Frivaldo's "recourse was to file
either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution 57 has given the Comelec
ample power to "exercise exclusive original jurisdiction over all contests
relating to the elections, returns and qualifications of all elective . . . provincial
. . . officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain,
suffice it to say that this Court has invariably recognized the Commission's
authority to hear and decide petitions for annulment of proclamations -- of
which SPC No. 95-317 obviously is one. 58 Thus, in Mentang
vs.COMELEC, 59 we ruled:
The petitioner argues that after proclamation and assumption of office, a preproclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidate has been proclaimed.
(citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170
SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no proclamation at all and
the proclaimed candidate's assumption of office cannot deprive the COMELEC
of the power to make such declaration of nullity. (citing Aguam vs. COMELEC,
23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must
"be done within ten (10) days following the proclamation." Inasmuch as
Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is
no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that
he (Lee) was not the choice of the sovereign will," and
in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second
placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo 62 case, as follows:

56

The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the validity
and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the
next higher number of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as
an ineligible candidate, much less the electorate as having known of such fact.
On the contrary, petitioner Labo was even allowed by no less than the
Comelec itself in its resolution dated May 10, 1992 to be voted for the office of
the city Payor as its resolution dated May 9, 1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and subject
to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical situation
as Labo was in 1992 when the Comelec's cancellation of his certificate of
candidacy was not yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason Comelec issued an
(omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several
others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the
electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged
disqualification as to "bring such awareness within the realm of notoriety;" in
other words, that the voters intentionally wasted their ballots knowing that, in
spite of their voting for him, he was ineligible. If Labo has any relevance at all,
it is that the vice-governor -- and not Lee -- should be pro- claimed, since in
losing the election, Lee was, to paraphrase Labo again, "obviously not the
choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.

the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's

proclamation was patently erroneous and should now be corrected.
The
Fifth
Issue:
Election Code Mandatory?

Is

Section

78

of

the

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en
banc Resolution of May 11, 1995 disqualifying him for want of citizenship
should be annulled because they were rendered beyond the fifteen (15) day
period prescribed by Section 78, of the Omnibus Election Code which reads
as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided
after notice and hearing, not later than fifteen days before the election.
(Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission (First
Division) on December 19, 1995, affirmed en banc 63 on February 23, 1996;
which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to
try and decide petitions for disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (emphasis supplied)
Refutation
Mr. Justice Davide's Dissent

of

Second. As we have earlier declared Frivaldo to have seasonably reacquired

his citizenship and inasmuch as he obtained the highest number of votes in

57

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should be
viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But
whether it decrees a suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or abrogate an
existing
law.
The existence and subsistence of P.D. 725 were recognized in the first
Frivaldo case; 64 viz., "(u)nder CA No. 63 as amended by CA No. 473
and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation".
He also contends that by allowing Frivaldo to register and to remain as a
registered voter, the Comelec and in effect this Court abetted a "mockery" of
our two previous judgments declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his repatriation, as discussed earlier,
legally cured whatever defects there may have been in his registration as a
voter for the purpose of the 1995 elections. Such retroactivity did not change
his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under
Section 78 of the Omnibus Election Code allowing the denial of a certificate of
candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding
that Section 78 is merely directory. We really have no quarrel. Our point is that
Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we
hold that the Comelec did not commit grave abuse of discretion because
"Section 6 of R.A. 6646 authorizes the Comelec to try and decide
disqualifications even after the elections." In spite of his disagreement with us
on this point, i.e., that Section 78 "is merely directory", we note that just like
us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One
other point. Loong, as quoted in the dissent, teaches that a petition to deny
due course under Section 78 must be filed within the 25-day period prescribed
therein. The present case however deals with the period during which the
Comelec may decide such petition. And we hold that it may be decided even
after thefifteen day period mentioned in Section 78. Here, we rule that a
decision promulgated by the Comelec even after the elections is valid
but Loong held that a petition filed beyond the 25-day period is out of time.
There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given retroactive
effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo
case. But the first (and even the second Frivaldo) decision did not directly
involve repatriation as a mode of acquiring citizenship. If we may repeat, there
is no question that Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled. But his
supervening repatriation has changed his political status -- not in 1988 or 1992,
but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment is
not a ground to lose American citizenship". Since our courts are charged only
with the duty of determining who are Philippine nationals, we cannot rule on
the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own citizens
-- not who are the citizens of other countries. 65 The issue here is: the Comelec
made a finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following settled case
law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known". First, there
is absolutely no empirical evidence for such "public" knowledge. Second, even
if there is, such knowledge can be true post facto only of the last two previous
elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections. How
then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of electivelocal officials, i.e., candidates, and
not elected officials, and that the citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not merely at the commencement
of the term, but by election day at the latest. We see it differently. Section 39,
par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at
election day or prior thereto, it would have specifically stated such detail, the

58

same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides
that it is only after taking the oath of allegiance that applicants shall be deemed
to have reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or repatriation) is
deemed for all purposes and intents to have retroacted to the date of his
application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Authority Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725
suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the
first to uphold the Rule of Law." We agree -- we must all follow the rule of law.
But that is NOT the issue here. The issue is how should the law be interpreted
and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and
perception of how to interpret and apply laws relating to elections: literal or
liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal
syllogism or substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters' obvious choice. In
applying election laws, it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms. Indeed,
to inflict a thrice rejected candidate upon the electorate of Sorsogon would
constitute unmitigated judicial tyranny and an unacceptable assault upon this
Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code
is to be possessed by an elective official at the latest as of the time he is
proclaimed and at the start of the term of office to which he has been elected.
We further hold P.D. No. 725 to be in full force and effect up to the present,
not having been suspended or repealed expressly nor impliedly at any time,
and Frivaldo's repatriation by virtue thereof to have been properly granted and

thus valid and effective. Moreover, by reason of the remedial or curative nature
of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced
to give up his citizenship and political aspiration as his means of escaping a
regime he abhorred, his repatriation is to be given retroactive effect as of the
date of his application therefor, during the pendency of which he was stateless,
he having given up his U.S. nationality. Thus, in contemplation of law, he
possessed the vital requirement of Filipino citizenship as of the start of the
term of office of governor, and should have been proclaimed instead of Lee.
Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated
as of said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing disability
or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority
and jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral
laws of our country to give fullest effect to the manifest will of our people, 66 for
in case of doubt, political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be defeated
by mere technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the will
of the majority, for it is merely sound public policy to cause elective offices to
be filled by those who are the choice of the majority. To successfully challenge
a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic 68 to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the
apparent will of the people, would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and

59

laws so zealously protect and promote. In this undertaking, Lee has miserably
failed.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.

In Frivaldo's case. it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of his
repatriation and hold him still ineligible due to his failure to show his citizenship
at the time he registered as a voter before the 1995 elections. Or, it could have
disputed the factual findings of the Comelec that he was stateless at the time
of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the real
essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role
of law as a brick in the ultimate development of the social edifice. Thus, the
Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice
in the larger social context consistent with Frivaldo's unique situation
approximating venerability in Philippine political life. Concededly, he sought
American citizenship only to escape the clutches of the dictatorship. At this
stage, we cannot seriously entertain any doubt about his loyalty and dedication
to this country. At the first opportunity, he returned to this land, and sought to
serve his people once more. The people of Sorsogon overwhelmingly voted
for him three times. He took an oath of allegiance to this Republic every time
he filed his certificate of candidacy and during his failed naturalization bid. And
let it not be overlooked, his demonstrated tenacity and sheer determination to
re-assume his nationality of birth despite several legal set-backs speak more
loudly, in spirit, in fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines even now at
the ripe old age of 81 years. Such loyalty to and love of country as well as
nobility of purpose cannot be lost on this Court of justice and equity. Mortals
of lesser mettle would have given up. After all, Frivaldo was assured of a life
of ease and plenty as a citizen of the most powerful country in the world. But
he opted, nay, single-mindedly insisted on returning to and serving once more
his struggling but beloved land of birth. He therefore deserves every liberal
interpretation of the law which can be applied in his favor. And in the final
analysis, over and above Frivaldo himself, the indomitable people of Sorsogon
most certainly deserve to be governed by a leader of their overwhelming
choice.

No costs.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.

SO ORDERED.
Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and
Torres, Jr., JJ., concur.
Melo, Vitug and Kapunan, JJ., concurs in the result.
Narvasa, C.J. and Mendoza, J., took no part.

Separate Opinions

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice Panganiban which is
pro-people and pierces the myopia of legalism. Upholding the sovereign will of
the people which is the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987
Constitution. For this reason, it appears as thefirst in our declaration of
principles and state policies. Thus, section 1 of Article II of our fundamental
law proclaims that "[t]he Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from
them." The same principle served as the bedrock of our 1973 and 1935
Constitutions. 1 It is one of the few principles whose truth has been cherished
by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution
makes it a duty of the Federal government to guarantee to every state a
"republican form of government." With understandable fervor, the American

60

authorities imposed republicanism as the cornerstone of our 1935 Constitution

then being crafted by its Filipino framers. 2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution
is more people-oriented. Thus, section 4 of Article II provides as a state policy
that the prime duty of the Government is "to serve and protect the people."
Section 1, Article XI also provides that ". . . public officers . . . must at all times
be accountable to the people . . ." Sections 15 and 1 of Article XIII define the
role and rights of people's organizations. Section 5(2) of Article XVI mandates
that "[t]he state shall strengthen the patriotic spirit and nationalist
consciousness of the military, and respect for people's rights in the
performance of their duty." And section 2 of Article XVII provides that
"amendments
to
this Constitution may likewise be directly proposed by the people through
initiative . . ." All these provisions and more are intended to breathe more life
to the sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty
is meant to be supreme, the jus summi imperu, the absolute right to
govern. 3 Former Dean Vicente Sinco 4 states that an essential quality of
sovereignty is legal omnipotence, viz.: "Legal theory establishes certain
essential qualities inherent in the nature of sovereignty. The first is legal
omnipotence. This means that the sovereign is legally omnipotent and
absolute in relation to other legal institutions. It has the power to determine
exclusively its legal competence. Its powers are original, not derivative. It is
the sole judge of what it should do at any given time." 5 Citing Barker, 6 he adds
that a more amplified definition of sovereignty is that of "a final power of final
legal adjustment of all legal issues." The U.S. Supreme Court expressed the
same thought in the landmark case of Yick Wo v. Hopkins, 7 where it held that
". . . sovereignty itself is, of course, not subject to law, for it is the author and
source of law; but in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people, by whom
and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as
distinguished from a pure democracy. Justice Isagani Cruz explains: 8
xxx xxx xxx

directly. The essence of republicanism is representation and renovation, the

selection by the citizenry of a corps of public functionaries who derive their
mandate from the people and act on their behalf, serving for a limited period
only, after which they are replaced or retained, at the option of their
principal. Obviously, a republican government is a responsible government
whose officials hold and discharge their position as a public trust and shall,
according to the Constitution, "at all times be accountable to the people" they
are sworn to serve. The purpose of a republican government it is almost
needless to state, is the promotion of the common welfare according to the will
of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time. 9 For this reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our laws and those
who execute our laws. Thus, the entire electorate votes for our senators but
only our district electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards, only our city
electorates vote for our city councilors, and only our municipal electorates vote
for our councilors. Also, the entire electorate votes for our President and VicePresident but only our provincial electorates vote for our governors, only our
city electorates vote for our mayors, and only our municipal electorates vote
for our mayors. By defining and delimiting the classes of voters who can
exercise the sovereignty of the people in a given election, it cannot be claimed
that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether
the people of Sorsogon should be given the right to defy the law by allowing
Frivaldo to sit as their governor. Rather, the issue is: whether the will of the
voters of Sorsogon clearly choosing Frivaldo as governor ought to be given
a decisive value considering theuncertainty of the law on when a candidate
ought to satisfy the qualification of citizenship. The uncertainty of law and
jurisprudence, both here and abroad, on this legal issue cannot be denied. In
the United States, 10 there are two (2) principal schools of thought on the
matter. One espouses the view that a candidate must possess the
qualifications for office at the time of his election. The other ventures the view
that the candidate should satisfy the qualifications at the time he assumes the
powers of the office. I am unaware of any Philippine decision that has squarely
resolved this difficult question of law. The ponencia of Mr. Justice Panganiban
adhered to the second school of thought while Mr. Justice Davide dissents.

A republic is a representative government, a government run by and for the

people. It is not a pure democracy where the people govern themselves

61

I emphasize the honest-to-goodness difference in interpreting our law on the

matter for this is vital to dispel the fear of Mr. Justice Davide that my opinion
can bring about ill effects to the State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and we cannot allow
him to sit as governor without transgressing the law. I do not concede this
assumption for as stressed above, courts have been sharply divided by this
mind boggling issue. Given this schism, I do not see how we can derogate on
the sovereignty of the people by according more weight to the votes of the
people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion,
we cannot prosecute them "because of the doctrine of people's sovereignty."
With due respect, the analogy is not appropriate. In his hypothetical case,
rebellion is concededly a crime, a violation of Article 134 of the Revised Penal
Code, an offense against the sovereignty of our people. In the case at bar, it
cannot be held with certitude that the people of Sorsogon violated the law by
voting for Frivaldo as governor. Frivaldo's name was in the list of candidates
allowed by COMELEC to run for governor. At that time too, Frivaldo was taking
all steps to establish his Filipino citizenship. And even our jurisprudence has
not settled the issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then and now, I cannot
imagine how it will be disastrous for the State if we tilt the balance in the case
at bar in favor of the people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be
resolutory of the case at bar which is one of its kind, unprecedented in our
political history. For three (3) times, Frivaldo ran as governor of the province
of Sorsogon. For two (2) times, he was disqualified on the ground of
citizenship. The people of Sorsogon voted for him as their governor despite
his disqualification. The people never waffled in their support for Frivaldo. In
1988, they gave him a winning margin of 27,000; in 1992, they gave him a
winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then,
Frivaldo is the overwhelming choice of the people of Sorsogon. In election
cases, we should strive to align the will of the legislature as expressed in its
law with the will of the sovereign people as expressed in their ballots. For law
to reign, it must respect the will of the people. For in the eloquent prose of Mr.
Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty
and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by
all agencies of government. In cases where the sovereignty of the people is at
stake, we must not only be legally right but also politically correct. We cannot
fail by making the people succeed.

DAVIDE, JR., J., dissenting:

After deliberating on the re-formulated issues and the conclusions reached by
my distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself
unable to join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the
ground that President Corazon C. Aquino's 27 March 1987 memorandum
"effectively repealed" P.D. No. 725. In my view, the said memorandum
only suspended the implementation of the latter decree by divesting the
Special Committee on Naturalization of its authority to further act on grants of
citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D.
No. 1379; and "any other related laws, orders, issuances and rules and
regulations." A reading of the last paragraph of the memorandum can lead to
no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11, 1975,
as amended, Presidential Decree No. 836 dated December 3, 1975, as
amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to
the grant of citizenship under the said laws, and any other related laws, orders,
issuances and rules and regulations. (emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to
LOI No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind
that P.D. No. 725 is one such "related law" as it involves the reacquisition of
Philippine citizenship by repatriation and designates the Special Committee on
Naturalization created under LOI No. 270 to receive and act on (i.e., approve
or disapprove) applications under the said decree. The power of President
Aquino to suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under Section 6, Article
XVIII of the 1987 Constitution, she exercised legislative power until the
Congress established therein convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of
27 March 1987 was merely a declaration of "executive policy," and not an
exercise of legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and
"any other related laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers -- not executive

62

power. These laws relate to the acquisition (by naturalization) and

reacquisition (by repatriation) of Philippine citizenship, and in light of Sections
1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition
of Philippine citizenship shall be in accordance with law), it is indubitable that
these subjects are a matter of legislative prerogative. In the same vein, the
creation of the Special Committee on Naturalization by LOI No. 270 and the
conferment of the power to accept and act on applications under P.D. No. 725
are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative
fiat, i.e., by Congress, since the President had long lost his authority to
exercise "legislative power." Considering that Congress has not seen it fit to
do so, the President cannot, in the exercise of executive power, lift the cease
and desist order nor reactivate/reconstitute/revive the Committee. A multo
fortiori, the Committee cannot validly accept Frivaldo's application for
repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure
his lack of citizenship." I depart from the view in the ponencia that Section 39
of the Local Government Code of 1991 does not specify the time when the
citizenship requirement must be met, and that being the case, then it suffices
that citizenship be possessed upon commencement of the term of the office
involved; therefore, since Frivaldo "re-assumed" his Philippine citizenship at
2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at
12:00 noon of that day, he had, therefore, complied with the citizenship
requirement.
In the first place, Section 39 actually prescribes the qualifications
of elective local officials and not those of anelected local official. These
adjectives are not synonymous, as the ponencia seems to suggest. The first
refers to the nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious candidate for an
elective office. The section unquestionably refers to elective -- not elected -local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under
Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while paragraphs (b) to (f)
thereof speak of candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province

or, in the case of a member of the sangguniang panlalawigan, sangguniang

panlungsod, or sangguniang bayan, the district where he intends to be elected;
a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least twentyone (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election
day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on election
day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years
of age but not more than twenty-one (21) years of age on election day
(emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may
the section be construed to mean that possession of qualifications should be
reckoned from the commencement of the term of office of the elected
candidate.
For another, it is not at all true that Section 39 does not specify the time when
the citizenship requirement must be possessed. I submit that the requirement
must be satisfied, or that Philippine citizenship must be possessed, not merely
at the commencement of the term, but at an earlier time, the latest being
election day itself. Section 39 is not at all ambiguous nor uncertain that it meant
this to be, as one basic qualification of an elective local official is that he be "A
REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR
PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage. The
fundamental qualification for the exercise of this sovereign right is the

63

possession of Philippine citizenship. No less than the Constitution makes it the

first qualification, as Section 1, Article V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding
the election. . . . (emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg.
881) expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall have
resided in the Philippines for one year and in the city or municipality wherein
he proposes to vote for at least six months immediately preceding the election,
may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in
the 1988 and 1992 elections on the ground that for lack of Philippine
citizenship -- he being a naturalized citizen of the United States of America -he was DISQUALIFIED to be elected as such and to serve the position
(Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the
Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification
inexorably nullified Frivaldo's registration as a voter and declared it void ab
initio. Our judgments therein were self-executory and no further act, e.g., a
COMELEC order to cancel his registration as a voter or the physical
destruction of his voter's certificate, was necessary for the ineffectivity. Thus,
he was never considered a registered voter for the elections of May 1992, and
May 1995, as there is no showing that Frivaldo registered anew as a voter for
the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the 1995 elections
and was even allowed to vote therein were of no moment. Neither act made
him a Filipino citizen nor nullified the judgments of this Court. On the contrary,
said acts made a mockery of our judgments. For the Court now to validate
Frivaldo's registration as a voter despite the judgments of disqualification is to
modify the said judgments by making their effectivity and enforceability
dependent on a COMELEC order cancelling his registration as a voter, or on
the physical destruction of his certificate of registration as a voter which, of
course, was never our intention. Moreover, to sanction Frivaldo's registration
as a voter would be to sacrifice substance in favor of form (the piece of paper

that is the book of voters or list of voters or voter's ID), and abet the
COMELEC's incompetence in failing to cancel Frivaldo's registration and
allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification
should be reckoned not from the date of the election nor the filing of the
certificate of candidacy, but from the date of proclamation, is that the only
available remedy to question the ineligibility (or disloyalty) of a candidate is a
petition for quo warranto which, under Section 253 of the Omnibus Election
Code, may be filed only within ten days from proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a
candidate's ineligibility for public office. Section 78 of the Omnibus Election
Code allows the filing of a petition to deny due course to or cancel the
certificate of candidacy on the ground that any material representation
contained therein, as required by Section 74, is false. Section 74, in turn,
requires that the person filing the certificate of candidacy must state, inter alia,
that he is eligible for the office, which means that he has all the qualifications
(including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be
filed at any time not later than 25 days from the filing of the certificate of
candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216
SCRA 760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate fails
to file the petition within the 25-day period Section 78 of the Code for whatever
reasons, the election laws do not leave him completely helpless as he has
another chance to raise the disqualification of the candidate by filing a petition
for quo warranto within ten (10) days from the proclamation of the results of
the election, as provided under Section 253 of the Code. Section 1, Rule 21 of
the Comelec Rules of Procedure similarly provides that any voter contesting

64

the election of any regional, provincial or city official on the ground of

ineligibility or of disloyalty to the Republic of the Philippines may file a petition
for quo warranto with the Electoral Contest Adjudication Department. The
petition may be filed within ten (10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the
filing of a petition for disqualification on the ground of failure to possess all the
qualifications of a candidate as provided by the Constitution or by existing
laws, "any day after the last day for filing of certificates of candidacy but not
later than the date of proclamation." Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. 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.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the last
day for filing of certificates of candidacy but not later than the date of
proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification
on the ground of lack of all qualifications may be doubtful, its invalidity is not
in issue here.
In this connection, it would seem appropriate to take up the last issue grappled
within the ponencia, viz., is Section 78 of the Omnibus Election Code
mandatory? The answer is provided in Loong.
We also do not find merit in the contention of respondent Commission that in
the light of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition
to deny due course to or cancel a certificate of candidacy may be filed even
beyond the 25-day period prescribed by Section 78 of the Code, as long as it
is filed within a reasonable time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by

final judgment before an election to be disqualified and he is voted for and

receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny due
course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day
period prescribed by Section 78 of the Code for filing the appropriate action to
cancel a certificate of candidacy on account of any false representation made
therein. On the contrary, said Section 7 affirms and reiterates Section 78 of
the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section 78 of
the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred
to in Section 6 applicable to disqualification cases filed under Section 78 of the
Code. Nowhere in Sections 6 and 7 of Rep. Act No. 6646 is mention made of
the period within which these disqualification cases may be filed. This is
because there are provisions in the Code which supply the periods within
which a petition relating to disqualification of candidates must be filed, such as
Section 78, already discussed, and Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely
directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try
and decide petitions for disqualification even after elections. I submit that
Section 6 refers to disqualifications under Sections 12 and 68 of the Omnibus
Election Code and consequently modifies Section 72 thereof. As such, the
proper court or the COMELEC are granted the authority to continue hearing
the case after the election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence against him is strong.
Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving

65

moral turpitude, shall be disqualified to be a candidate and to hold any office,

unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an 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 of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission and the
courts shall give priority to cases of disqualification by reason of violation of
this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the
arguments in support of the thesis that Frivaldo's repatriation may be given

retroactive effect, as such goes against the spirit and letter of P.D. No. 725.
The spirit adheres to the principle that acquisition or re-acquisition of Philippine
citizenship is not a right, but a mere privilege. Before the advent of P.D. No.
725, only the following could apply for repatriation: (a) Army, Navy, or Air Corps
deserters; and (b) a woman who lost her citizenship by reason of her marriage
to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO.
725 expanded this to include Filipino women who lost their Philippine
citizenship by marriage to aliens even before the death of their alien husbands,
or the termination of their marital status and to natural-born Filipino citizens
who lost their Philippine citizenship but subsequently desired to reacquire the
latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that
repatriation takes effect only after taking the oath of allegiance to the Republic
of the Philippines, thus:
. . . may reacquire Philippine citizenship . . . 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. (emphasis and
capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under
the decree are: (1) filing the application; (2) action by the committee; and (3)
taking of the oath of allegiance if the application is approved. It is only UPON
TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso
jure to have reacquired Philippine citizenship. If the decree had intended the
oath taking to retroact to the date of the filing of the application, then it should
not have explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an
act "formally rejecting [the] adopted state and reaffirming . . . allegiance to the
Philippines." That act meant nothing less than taking of the oath of allegiance
to the Republic of the Philippines. If we now take this revision of doctrine to its
logical end, then it would also mean that if Frivaldo had chosen and reacquired
Philippine citizenship by naturalization or through Congressional action, such
would retroact to the filing of the petition for naturalization or the bill granting
him Philippine citizenship. This is a proposition which both the first and second
Frivaldo cases soundly rejected.

66

The other reason adduced in the ponencia in support of the proposition that
P.D. No. 725 can be given retroactive effect is its alleged curative or remedial
nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may
P.D. No. 725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by curing
defects and adding to the means of enforcing existing obligations. The rule in
regard to curative statutes is that if the thing omitted or failed to be done, and
which constitutes the defect sought to be removed or made harmless, is
something the legislature might have dispensed with by a previous statute, it
may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a person to
carry into effect that which they have designed and intended, but has failed of
expected legal consequence by reason of some statutory disability or
irregularity in their own action. They make valid that which, before the
enactment of the statute, was invalid. (RUBEN E. AGPALO, Statutory
Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through
the marriage of a Filipina to an alien and through naturalization in a foreign
country of natural-born Filipino citizens. It involves then the substantive, nay
primordial, right of citizenship. To those for whom it is intended, it means, in
reality, the acquisition of "a new right," as the ponencia cannot but concede.
Therefore, it may not be said to merely remedy or cure a defect considering
that one who has lost Philippine citizenship does not have the right to reacquire
it. As earlier stated, the Constitution provides that citizenship, once lost, may
only be reacquired in the manner provided by law. Moreover, it has also been
observed that:
The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory
Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or
remedial statute, it would be an inexcusable error to give it a retroactive effect
since it explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.

Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of
Philippine citizenship, then nothing therein supports such theory, for as the
decree itself unequivocally provides, it is only after taking the oath of allegiance
to the Republic of the Philippines that the applicant is DEEMED TO HAVE
REACQUIRED PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could
not be said insofar as it concerned the United States of America, of which he
was a citizen. For under the laws of the United States of America, Frivaldo
remained an American national until he renounced his citizenship and
allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath of
allegiance to the Republic of the Philippines. Section 401 of the Nationality Act
of 1940 of the United States of America provides that a person who is a
national of the United States of America, whether by birth or naturalization,
loses his nationality by, inter alia, "(b) Taking an oath or making an affirmation
or other formal declaration of allegiance to a foreign state" (SIDNEY KANSAS,
U.S. Immigration Exclusion and Deportation and Citizenship of the United
States of America, Third ed., [1948] 341-342). It follows then that on election
day and until the hour of the commencement of the term for which he was
elected - noon of 30 June 1995 as per Section 43 of the Local Government
Code - Frivaldo possessed dual citizenship, viz., (a) as an American citizen;
and (b) as a Filipino citizen through the adoption of the theory that the effects
of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS
on the basis of his claim that he "had long renounced and had long abandoned
his American citizenship - long before May 8, 1985" - is untenable, for the
following reasons: first, it is based on Frivaldo's unproven, self-serving
allegation; second, informal renunciation or abandonment is not a ground to
lose American citizenship; and third, simply put, never did the status of a
STATELESS person attach to Frivaldo.

67

Statelessness may be either de jure, which is the status of individuals stripped

of their nationality by their former government without having an opportunity to
acquire another; or de facto, which is the status of individuals possessed of a
nationality whose country does not give them protection outside their own
country, and who are commonly, albeit imprecisely, referred to as refugees
(JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments,
1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention
Regarding the Status of Stateless Persons (Philippine Treaty Series, Compiled
and Annotated by Haydee B. Yorac, vol. III, 363), a stateless person is defined
as "a person who is not considered as a national by any State under the
operation of its law." However, it has not been shown that the United States of
America ever ceased to consider Frivaldo its national at any time before he
took his oath of allegiance to the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of
Mr. Justice Reynato S. Puno. I am absolutely happy to join him in his statement
that "[t]he sovereignty of our people is the primary postulate of the 1987
Constitution" and that the said Constitution is "more people-oriented," "borne
[as it is] out of the 1986 people power EDSA revolution." I would even go
further by saying that this Constitution is pro-God (Preamble), propeople (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII,
Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2),
6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections
1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21;
Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11,
13), pro-life (Article II, Section 12), and pro-family (Article II, Section 12; Article
XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty
beyond what I perceive to be the reasonable constitutional parameters. The
doctrine of people's sovereignty is founded on the principles of democracy and
republicanism and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.

And the Preamble makes it clear when it solemnly opens it with a clause
"We, the sovereign Filipino people. . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking
at it as the supreme authority of the people of any of the political subdivisions
to determine their own destiny; neither can we convert and treat every
fragment as the whole. In such a case, this Court would provide the formula
for the division and destruction of the State and render the Government
ineffective and inutile. To illustrate the evil, we may consider the enforcement
of laws or the pursuit of a national policy by the executive branch of the
government, or the execution of a judgment by the courts. If these are opposed
by the overwhelming majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law, national policy, or
judgment must not be enforced, implemented, or executed in the said province
or municipality. More concretely, if, for instance, the vast majority of the people
of Batanes rise publicly and take up arms against the Government for the
purpose of removing from the allegiance to the said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, or any body
of land, naval, or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives, then
those who did so -- and which are composed of the vast majority of the people
of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty
of rebellion in violation of Article 134 of the Revised Penal Code because of
the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of
sovereignty by investing upon the people of a mere political subdivision that
which the Constitution places in the entire Filipino people, may be disastrous
to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus,
simply because Frivaldo had obtained a margin of 20,000 votes over his
closest rival, Lee, i.e., a vast majority of the voters of Sorsogon had expressed
their sovereign will for the former, then this Court must yield to that will and
must, therefore, allow to be set aside, for Frivaldo, not just the laws on
qualifications of candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final and binding decisions
of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS
G.R. No. 120295 and GRANT G.R. No. 123755.

68

Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is
pro-people and pierces the myopia of legalism. Upholding the sovereign will of
the people which is the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987
Constitution. For this reason, it appears as thefirst in our declaration of
principles and state policies. Thus, section 1 of Article II of our fundamental
law proclaims that "[t]he Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from
them." The same principle served as the bedrock of our 1973 and 1935
Constitutions. 1 It is one of the few principles whose truth has been cherished
by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution
makes it a duty of the Federal government to guarantee to every state a
"republican form of government." With understandable fervor, the American
authorities imposed republicanism as the cornerstone of our 1935 Constitution
then being crafted by its Filipino framers. 2
Borne out of the 1986 people power EDSA revolution, our 1987 Constitution
is more people-oriented. Thus, section 4 of Article II provides as a state policy
that the prime duty of the Government is "to serve and protect the people."
Section 1, Article XI also provides that ". . . public officers . . . must at all times
be accountable to the people . . ." Sections 15 and 1 of Article XIII define the
role and rights of people's organizations. Section 5(2) of Article XVI mandates
that "[t]he state shall strengthen the patriotic spirit and nationalist
consciousness of the military, and respect for people's rights in the
performance of their duty." And section 2 of Article XVII provides that
"amendments
to
this Constitution may likewise be directly proposed by the people through
initiative . . ." All these provisions and more are intended to breathe more life
to the sovereignty of our people.
To be sure, the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its broadest sense, sovereignty
is meant to be supreme, the jus summi imperu, the absolute right to
govern. 3 Former Dean Vicente Sinco 4 states that an essential quality of
sovereignty is legal omnipotence, viz.: "Legal theory establishes certain
essential qualities inherent in the nature of sovereignty. The first is legal

omnipotence. This means that the sovereign is legally omnipotent and

absolute in relation to other legal institutions. It has the power to determine
exclusively its legal competence. Its powers are original, not derivative. It is
the sole judge of what it should do at any given time." 5 Citing Barker, 6 he adds
that a more amplified definition of sovereignty is that of "a final power of final
legal adjustment of all legal issues." The U.S. Supreme Court expressed the
same thought in the landmark case of Yick Wo v. Hopkins, 7 where it held that
". . . sovereignty itself is, of course, not subject to law, for it is the author and
source of law; but in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people, by whom
and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as
distinguished from a pure democracy. Justice Isagani Cruz explains: 8
xxx xxx xxx
A republic is a representative government, a government run by and for the
people. It is not a pure democracy where the people govern themselves
directly. The essence of republicanism is representation and renovation, the
selection by the citizenry of a corps of public functionaries who derive their
mandate from the people and act on their behalf, serving for a limited period
only, after which they are replaced or retained, at the option of their
principal. Obviously, a republican government is a responsible government
whose officials hold and discharge their position as a public trust and shall,
according to the Constitution, "at all times be accountable to the people" they
are sworn to serve. The purpose of a republican government it is almost
needless to state, is the promotion of the common welfare according to the will
of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time. 9 For this reason, the Constitution and our laws provide when the entire
electorate or only some of them can elect those who make our laws and those
who execute our laws. Thus, the entire electorate votes for our senators but
only our district electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards, only our city
electorates vote for our city councilors, and only our municipal electorates vote
for our councilors. Also, the entire electorate votes for our President and VicePresident but only our provincial electorates vote for our governors, only our
city electorates vote for our mayors, and only our municipal electorates vote
for our mayors. By defining and delimiting the classes of voters who can

69

exercise the sovereignty of the people in a given election, it cannot be claimed

that said sovereignty has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether
the people of Sorsogon should be given the right to defy the law by allowing
Frivaldo to sit as their governor. Rather, the issue is: whether the will of the
voters of Sorsogon clearly choosing Frivaldo as governor ought to be given
a decisive value considering theuncertainty of the law on when a candidate
ought to satisfy the qualification of citizenship. The uncertainty of law and
jurisprudence, both here and abroad, on this legal issue cannot be denied. In
the United States, 10 there are two (2) principal schools of thought on the
matter. One espouses the view that a candidate must possess the
qualifications for office at the time of his election. The other ventures the view
that the candidate should satisfy the qualifications at the time he assumes the
powers of the office. I am unaware of any Philippine decision that has squarely
resolved this difficult question of law. The ponencia of Mr. Justice Panganiban
adhered to the second school of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the
matter for this is vital to dispel the fear of Mr. Justice Davide that my opinion
can bring about ill effects to the State. Mr. Justice Davide's fear is based on
the assumption that Frivaldo continues to be disqualified and we cannot allow
him to sit as governor without transgressing the law. I do not concede this
assumption for as stressed above, courts have been sharply divided by this
mind boggling issue. Given this schism, I do not see how we can derogate on
the sovereignty of the people by according more weight to the votes of the
people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion,
we cannot prosecute them "because of the doctrine of people's sovereignty."
With due respect, the analogy is not appropriate. In his hypothetical case,
rebellion is concededly a crime, a violation of Article 134 of the Revised Penal
Code, an offense against the sovereignty of our people. In the case at bar, it
cannot be held with certitude that the people of Sorsogon violated the law by
voting for Frivaldo as governor. Frivaldo's name was in the list of candidates
allowed by COMELEC to run for governor. At that time too, Frivaldo was taking
all steps to establish his Filipino citizenship. And even our jurisprudence has
not settled the issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then and now, I cannot
imagine how it will be disastrous for the State if we tilt the balance in the case
at bar in favor of the people of Sorsogon.

In sum, I respectfully submit that the sovereign will of our people should be
resolutory of the case at bar which is one of its kind, unprecedented in our
political history. For three (3) times, Frivaldo ran as governor of the province
of Sorsogon. For two (2) times, he was disqualified on the ground of
citizenship. The people of Sorsogon voted for him as their governor despite
his disqualification. The people never waffled in their support for Frivaldo. In
1988, they gave him a winning margin of 27,000; in 1992, they gave him a
winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then,
Frivaldo is the overwhelming choice of the people of Sorsogon. In election
cases, we should strive to align the will of the legislature as expressed in its
law with the will of the sovereign people as expressed in their ballots. For law
to reign, it must respect the will of the people. For in the eloquent prose of Mr.
Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty
and is the ultimate source of established authority." 11 The choice of the
governed on who shall be their governor merits the highest consideration by
all agencies of government. In cases where the sovereignty of the people is at
stake, we must not only be legally right but also politically correct. We cannot
fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by
my distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself
unable to join him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the
ground that President Corazon C. Aquino's 27 March 1987 memorandum
"effectively repealed" P.D. No. 725. In my view, the said memorandum
only suspended the implementation of the latter decree by divesting the
Special Committee on Naturalization of its authority to further act on grants of
citizenship under LOI No. 270, as amended, P.D. No. 836, as amended; P.D.
No. 1379; and "any other related laws, orders, issuances and rules and
regulations." A reading of the last paragraph of the memorandum can lead to
no other conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11, 1975,
as amended, Presidential Decree No. 836 dated December 3, 1975, as
amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to

70

the grant of citizenship under the said laws, and any other related laws, orders,
issuances and rules and regulations. (emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to
LOI No. 270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind
that P.D. No. 725 is one such "related law" as it involves the reacquisition of
Philippine citizenship by repatriation and designates the Special Committee on
Naturalization created under LOI No. 270 to receive and act on (i.e., approve
or disapprove) applications under the said decree. The power of President
Aquino to suspend these issuances by virtue of the 27 March 1987
memorandum is beyond question considering that under Section 6, Article
XVIII of the 1987 Constitution, she exercised legislative power until the
Congress established therein convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of
27 March 1987 was merely a declaration of "executive policy," and not an
exercise of legislative power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and
"any other related laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers -- not executive
power. These laws relate to the acquisition (by naturalization) and
reacquisition (by repatriation) of Philippine citizenship, and in light of Sections
1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition
of Philippine citizenship shall be in accordance with law), it is indubitable that
these subjects are a matter of legislative prerogative. In the same vein, the
creation of the Special Committee on Naturalization by LOI No. 270 and the
conferment of the power to accept and act on applications under P.D. No. 725
are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative
fiat, i.e., by Congress, since the President had long lost his authority to
exercise "legislative power." Considering that Congress has not seen it fit to
do so, the President cannot, in the exercise of executive power, lift the cease
and desist order nor reactivate/reconstitute/revive the Committee. A multo
fortiori, the Committee cannot validly accept Frivaldo's application for
repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure
his lack of citizenship." I depart from the view in the ponencia that Section 39
of the Local Government Code of 1991 does not specify the time when the
citizenship requirement must be met, and that being the case, then it suffices

that citizenship be possessed upon commencement of the term of the office

involved; therefore, since Frivaldo "re-assumed" his Philippine citizenship at
2:00 p.m. on 30 June 1995 and the term of office of Governor commenced at
12:00 noon of that day, he had, therefore, complied with the citizenship
requirement.
In the first place, Section 39 actually prescribes the qualifications
of elective local officials and not those of anelected local official. These
adjectives are not synonymous, as the ponencia seems to suggest. The first
refers to the nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious candidate for an
elective office. The section unquestionably refers to elective -- not elected -local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under
Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while paragraphs (b) to (f)
thereof speak of candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected;
a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least twentyone (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election
day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on election
day.

71

(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years
of age but not more than twenty-one (21) years of age on election day
(emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may
the section be construed to mean that possession of qualifications should be
reckoned from the commencement of the term of office of the elected
candidate.
For another, it is not at all true that Section 39 does not specify the time when
the citizenship requirement must be possessed. I submit that the requirement
must be satisfied, or that Philippine citizenship must be possessed, not merely
at the commencement of the term, but at an earlier time, the latest being
election day itself. Section 39 is not at all ambiguous nor uncertain that it meant
this to be, as one basic qualification of an elective local official is that he be "A
REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR
PROVINCE . . . WHERE HE INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of suffrage. The
fundamental qualification for the exercise of this sovereign right is the
possession of Philippine citizenship. No less than the Constitution makes it the
first qualification, as Section 1, Article V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding
the election. . . . (emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg.
881) expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall have
resided in the Philippines for one year and in the city or municipality wherein
he proposes to vote for at least six months immediately preceding the election,
may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in
the 1988 and 1992 elections on the ground that for lack of Philippine
citizenship -- he being a naturalized citizen of the United States of America -he was DISQUALIFIED to be elected as such and to serve the position
(Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the

Philippines vs. De la Rosa, 232 SCRA 785 [1994]). This disqualification

inexorably nullified Frivaldo's registration as a voter and declared it void ab
initio. Our judgments therein were self-executory and no further act, e.g., a
COMELEC order to cancel his registration as a voter or the physical
destruction of his voter's certificate, was necessary for the ineffectivity. Thus,
he was never considered a registered voter for the elections of May 1992, and
May 1995, as there is no showing that Frivaldo registered anew as a voter for
the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally
void ab initio. That he filed his certificate of candidacy for the 1995 elections
and was even allowed to vote therein were of no moment. Neither act made
him a Filipino citizen nor nullified the judgments of this Court. On the contrary,
said acts made a mockery of our judgments. For the Court now to validate
Frivaldo's registration as a voter despite the judgments of disqualification is to
modify the said judgments by making their effectivity and enforceability
dependent on a COMELEC order cancelling his registration as a voter, or on
the physical destruction of his certificate of registration as a voter which, of
course, was never our intention. Moreover, to sanction Frivaldo's registration
as a voter would be to sacrifice substance in favor of form (the piece of paper
that is the book of voters or list of voters or voter's ID), and abet the
COMELEC's incompetence in failing to cancel Frivaldo's registration and
allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification
should be reckoned not from the date of the election nor the filing of the
certificate of candidacy, but from the date of proclamation, is that the only
available remedy to question the ineligibility (or disloyalty) of a candidate is a
petition for quo warranto which, under Section 253 of the Omnibus Election
Code, may be filed only within ten days from proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a
candidate's ineligibility for public office. Section 78 of the Omnibus Election
Code allows the filing of a petition to deny due course to or cancel the
certificate of candidacy on the ground that any material representation
contained therein, as required by Section 74, is false. Section 74, in turn,
requires that the person filing the certificate of candidacy must state, inter alia,
that he is eligible for the office, which means that he has all the qualifications
(including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be

72

filed at any time not later than 25 days from the filing of the certificate of
candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216
SCRA 760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain candidate fails
to file the petition within the 25-day period Section 78 of the Code for whatever
reasons, the election laws do not leave him completely helpless as he has
another chance to raise the disqualification of the candidate by filing a petition
for quo warranto within ten (10) days from the proclamation of the results of
the election, as provided under Section 253 of the Code. Section 1, Rule 21 of
the Comelec Rules of Procedure similarly provides that any voter contesting
the election of any regional, provincial or city official on the ground of
ineligibility or of disloyalty to the Republic of the Philippines may file a petition
for quo warranto with the Electoral Contest Adjudication Department. The
petition may be filed within ten (10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the
filing of a petition for disqualification on the ground of failure to possess all the
qualifications of a candidate as provided by the Constitution or by existing
laws, "any day after the last day for filing of certificates of candidacy but not
later than the date of proclamation." Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. 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.
xxx xxx xxx

Sec. 3. Period to File Petition. The petition shall be filed any day after the last
day for filing of certificates of candidacy but not later than the date of
proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification
on the ground of lack of all qualifications may be doubtful, its invalidity is not
in issue here.
In this connection, it would seem appropriate to take up the last issue grappled
within the ponencia, viz., is Section 78 of the Omnibus Election Code
mandatory? The answer is provided in Loong.
We also do not find merit in the contention of respondent Commission that in
the light of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition
to deny due course to or cancel a certificate of candidacy may be filed even
beyond the 25-day period prescribed by Section 78 of the Code, as long as it
is filed within a reasonable time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny due
course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day
period prescribed by Section 78 of the Code for filing the appropriate action to
cancel a certificate of candidacy on account of any false representation made
therein. On the contrary, said Section 7 affirms and reiterates Section 78 of
the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section 78 of
the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred

73

to in Section 6 applicable to disqualification cases filed under Section 78 of the

Code. Nowhere in Sections 6 and 7 of Rep. Act No. 6646 is mention made of
the period within which these disqualification cases may be filed. This is
because there are provisions in the Code which supply the periods within
which a petition relating to disqualification of candidates must be filed, such as
Section 78, already discussed, and Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely
directory because Section 6 of R.A. No. 6646 authorizes the COMELEC to try
and decide petitions for disqualification even after elections. I submit that
Section 6 refers to disqualifications under Sections 12 and 68 of the Omnibus
Election Code and consequently modifies Section 72 thereof. As such, the
proper court or the COMELEC are granted the authority to continue hearing
the case after the election, and during the pendency of the case, suspend the
proclamation of the victorious candidate, if the evidence against him is strong.
Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an 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 of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or

an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission and the
courts shall give priority to cases of disqualification by reason of violation of
this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the
arguments in support of the thesis that Frivaldo's repatriation may be given
retroactive effect, as such goes against the spirit and letter of P.D. No. 725.
The spirit adheres to the principle that acquisition or re-acquisition of Philippine
citizenship is not a right, but a mere privilege. Before the advent of P.D. No.
725, only the following could apply for repatriation: (a) Army, Navy, or Air Corps
deserters; and (b) a woman who lost her citizenship by reason of her marriage
to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D. NO.
725 expanded this to include Filipino women who lost their Philippine
citizenship by marriage to aliens even before the death of their alien husbands,
or the termination of their marital status and to natural-born Filipino citizens
who lost their Philippine citizenship but subsequently desired to reacquire the
latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that
repatriation takes effect only after taking the oath of allegiance to the Republic
of the Philippines, thus:
. . . may reacquire Philippine citizenship . . . 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. (emphasis and
capitalization supplied)

74

Clearly then, the steps to reacquire Philippine citizenship by repatriation under

the decree are: (1) filing the application; (2) action by the committee; and (3)
taking of the oath of allegiance if the application is approved. It is only UPON
TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso
jure to have reacquired Philippine citizenship. If the decree had intended the
oath taking to retroact to the date of the filing of the application, then it should
not have explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an
act "formally rejecting [the] adopted state and reaffirming . . . allegiance to the
Philippines." That act meant nothing less than taking of the oath of allegiance
to the Republic of the Philippines. If we now take this revision of doctrine to its
logical end, then it would also mean that if Frivaldo had chosen and reacquired
Philippine citizenship by naturalization or through Congressional action, such
would retroact to the filing of the petition for naturalization or the bill granting
him Philippine citizenship. This is a proposition which both the first and second
Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that
P.D. No. 725 can be given retroactive effect is its alleged curative or remedial
nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may
P.D. No. 725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by curing
defects and adding to the means of enforcing existing obligations. The rule in
regard to curative statutes is that if the thing omitted or failed to be done, and
which constitutes the defect sought to be removed or made harmless, is
something the legislature might have dispensed with by a previous statute, it
may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a person to
carry into effect that which they have designed and intended, but has failed of
expected legal consequence by reason of some statutory disability or
irregularity in their own action. They make valid that which, before the
enactment of the statute, was invalid. (RUBEN E. AGPALO, Statutory
Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through
the marriage of a Filipina to an alien and through naturalization in a foreign

country of natural-born Filipino citizens. It involves then the substantive, nay

primordial, right of citizenship. To those for whom it is intended, it means, in
reality, the acquisition of "a new right," as the ponencia cannot but concede.
Therefore, it may not be said to merely remedy or cure a defect considering
that one who has lost Philippine citizenship does not have the right to reacquire
it. As earlier stated, the Constitution provides that citizenship, once lost, may
only be reacquired in the manner provided by law. Moreover, it has also been
observed that:
The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory
Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or
remedial statute, it would be an inexcusable error to give it a retroactive effect
since it explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of
Philippine citizenship, then nothing therein supports such theory, for as the
decree itself unequivocally provides, it is only after taking the oath of allegiance
to the Republic of the Philippines that the applicant is DEEMED TO HAVE
REACQUIRED PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could
not be said insofar as it concerned the United States of America, of which he
was a citizen. For under the laws of the United States of America, Frivaldo
remained an American national until he renounced his citizenship and
allegiance thereto at 2:00 p.m. on 30 June 1995, when he took his oath of
allegiance to the Republic of the Philippines. Section 401 of the Nationality Act
of 1940 of the United States of America provides that a person who is a
national of the United States of America, whether by birth or naturalization,
loses his nationality by, inter alia, "(b) Taking an oath or making an affirmation
or other formal declaration of allegiance to a foreign state" (SIDNEY KANSAS,
U.S. Immigration Exclusion and Deportation and Citizenship of the United
States of America, Third ed., [1948] 341-342). It follows then that on election

75

day and until the hour of the commencement of the term for which he was
elected - noon of 30 June 1995 as per Section 43 of the Local Government
Code - Frivaldo possessed dual citizenship, viz., (a) as an American citizen;
and (b) as a Filipino citizen through the adoption of the theory that the effects
of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS
on the basis of his claim that he "had long renounced and had long abandoned
his American citizenship - long before May 8, 1985" - is untenable, for the
following reasons: first, it is based on Frivaldo's unproven, self-serving
allegation; second, informal renunciation or abandonment is not a ground to
lose American citizenship; and third, simply put, never did the status of a
STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped
of their nationality by their former government without having an opportunity to
acquire another; or de facto, which is the status of individuals possessed of a
nationality whose country does not give them protection outside their own
country, and who are commonly, albeit imprecisely, referred to as refugees
(JORGE R. COQUIA, et al., Conflict of Laws Cases, Materials and Comments,
1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention
Regarding the Status of Stateless Persons (Philippine Treaty Series, Compiled
and Annotated by Haydee B. Yorac, vol. III, 363), a stateless person is defined
as "a person who is not considered as a national by any State under the
operation of its law." However, it has not been shown that the United States of
America ever ceased to consider Frivaldo its national at any time before he
took his oath of allegiance to the Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of
Mr. Justice Reynato S. Puno. I am absolutely happy to join him in his statement
that "[t]he sovereignty of our people is the primary postulate of the 1987
Constitution" and that the said Constitution is "more people-oriented," "borne
[as it is] out of the 1986 people power EDSA revolution." I would even go
further by saying that this Constitution is pro-God (Preamble), propeople (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article XII,

Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections 5(2),
6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections
1, 4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21;
Article XII, Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11,
13), pro-life (Article II, Section 12), and pro-family (Article II, Section 12; Article
XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty
beyond what I perceive to be the reasonable constitutional parameters. The
doctrine of people's sovereignty is founded on the principles of democracy and
republicanism and refers exclusively to the sovereignty of the people of the
Philippines. Section 1 of Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause
"We, the sovereign Filipino people. . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking
at it as the supreme authority of the people of any of the political subdivisions
to determine their own destiny; neither can we convert and treat every
fragment as the whole. In such a case, this Court would provide the formula
for the division and destruction of the State and render the Government
ineffective and inutile. To illustrate the evil, we may consider the enforcement
of laws or the pursuit of a national policy by the executive branch of the
government, or the execution of a judgment by the courts. If these are opposed
by the overwhelming majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law, national policy, or
judgment must not be enforced, implemented, or executed in the said province
or municipality. More concretely, if, for instance, the vast majority of the people
of Batanes rise publicly and take up arms against the Government for the
purpose of removing from the allegiance to the said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, or any body
of land, naval, or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives, then
those who did so -- and which are composed of the vast majority of the people
of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty
of rebellion in violation of Article 134 of the Revised Penal Code because of
the doctrine of peoples' sovereignty. Indeed, the expansion of the doctrine of
sovereignty by investing upon the people of a mere political subdivision that

76

which the Constitution places in the entire Filipino people, may be disastrous
to the Nation.

vacate his office. On the basis of this latter Supreme Court ruling, the Comelec
disqualified Frivaldo in SPA No. 95-028.

So it is in this case if we follow the thesis in the concurring opinion. Thus,

simply because Frivaldo had obtained a margin of 20,000 votes over his
closest rival, Lee, i.e., a vast majority of the voters of Sorsogon had expressed
their sovereign will for the former, then this Court must yield to that will and
must, therefore, allow to be set aside, for Frivaldo, not just the laws on
qualifications of candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final and binding decisions
of this Court affecting him.

7 Signed by Chairman Bernardo P. Pardo and the six incumbent

commissioners, namely, Regalado E. Maambong, Remedios A. SalazarFernando, Manolo B. Gorospe, Graduacion A. Reyes-Claravall, Julio F.
Desamito and Teresita Dy-Liaco Flores; rollo, pp. 56-57.

This Court must be the first to uphold the Rule of Law. I vote then to DISMISS
G.R. No. 120295 and GRANT G.R. No. 123755.

8 Rollo, p. 60.
9 Rollo, pp. 61-67.
10 Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as
"stray votes", and thus Lee was held as having garnered the "highest number
of votes."

1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente;

Comm. Graduacion A.R. Claravall, concurring, and Comm. Julio F. Desamito,
dissenting.

11 Rollo, pp. 88-97. This is the forerunner of the present case.

2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee,
respondent; rollo, pp. 110-129.

13 Rollo, pp. 110-128.

3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong,

Remedios A. Salazar-Fernando, Manolo B. Gorospe and Teresita Dy-Liaco
Flores. Chairman Pardo certified that "Commissioner Julio F. Desamito was
on official travel at the time of the deliberation and resolution of this case.
However, the Commission has reserved to Comm. Desamito the right to
submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was composed of Pres. Comm.
Remedios A. Salazar-Fernando,ponente; Comm. Teresita Dy-Liaco Flores,
concurring, and Comm. Manolo B. Gorospe ("on official business").
6 Frivaldo was naturalized as an American citizen on January 20, 1983. In
G.R. No. 87193, Frivaldo vs. Commission on Elections, 174 SCRA 245 (June
23, 1989), the Supreme Court, by reason of such naturalization, declared
Frivaldo "not a citizen of the Philippines and therefore DISQUALIFIED from
serving as Governor of the Province of Sorsogon." On February 28, 1992, the
Regional Trial Court of Manila granted the petition for naturalization of Frivaldo.
However, the Supreme Court in G.R. No. 104654, Republic of the Philippines
vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994), overturned this grant,
and Frivaldo was "declared not a citizen of the Philippines" and ordered to

12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).

14 Rollo, pp. 159-170.

15 Rollo, pp. 16-17; petition, pp. 14-15.
16 Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.
17 Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.
18 Rollo, pp. 18-21. This is signed also by the Chairman and the six other
Comelec Commissioners.
19 Republic Act No. 7160.
20 See footnote no. 6, supra.
21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No.
87193, supra, p. 254, observed that "(i)f he (Frivaldo) really wanted to disavow
his American citizenship and reacquire Philippine citizenship, petitioner should
have done so in accordance with the laws of our country. Under C.A. No. 63
as amended by C.A. No. 473 and P.D. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization, or by repatriation."
22 Supra, p. 794.
23 Petition, p. 27; rollo, p. 29.

77

24 The full text of said memorandum reads as follows:

2. Manuel Reyes Sanchez 901

MEMORANDUM

3. Ma. Nelly Dessalla Ty 902

TO : The Solicitor General

4. Terry Herrera and

The Undersecretary of Foreign Affairs

Antonio Ching 903

The Director-General

5. Roberto Salas Benedicto 904

National Intelligence Coordinating Agency

6. Winthrop Santos Liwag 905

The previous administration's practice of granting citizenship by Presidential

Decree or any other executive issuance, and the derivative administrative
authority thereof, poses a serious and contentious issue of policy which the
present government, in the exercise of prudence and sound discretion, should
best leave to the judgment of the first Congress under the 1987 Constitution.

7. Samuel M. Buyco 906

In view of the foregoing, you as Chairman and members of the Special

Committee on Naturalization, are hereby directed to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instructions No. 270 dated April 11, 1975,
as amended, Presidential Decree No. 836 dated December 3, 1975, as
amended, and Presidential Decree No. 1379 dated May 17, 1978, relative to
the grant of citizenship under the said laws, and any other related laws, orders,
issuances and rules and regulations.

8. Joselito Holganza Ruiz 907

9. Samuel Villanueva 908
10. Juan Leonardo Collas, Jr. 909
11. Felicilda Otilla Sacnanas-Chua 910
29 The text of P.D. 725 is reproduced below:
PRESIDENTIAL DECREE No. 725
PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST
THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF
NATURAL BORN FILIPINOS.

(Sgd.) Corazon C. Aquino

Manila, March 27, 1987.
25 Art. 7, Civil Code of the Philippines.
26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995).
27 Petition, p. 28; rollo, p. 30.
28 The aforesaid Manifestation reads as follows:
MANIFESTATION
The Solicitor General, as Chairman of the Special Committee on
Naturalization, hereby manifests that the following persons have been
repatriated by virtue of Presidential Decree No. 725, since June 8, 1995:
1. Juan Gallanosa Frivaldo R-000900

WHEREAS, there are many Filipino women who had lost their Philippine
citizenship by marriage to aliens;
WHEREAS, while the new Constitution allows a Filipino woman who marries
an alien to retain her Philippine citizenship unless by her act or omission, she
is deemed under the law to have renounced her Philippine citizenship, such
provision of the new Constitution does not apply to Filipino women who had
married aliens before said constitution took effect;
WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation
of Filipino women who lost their citizenship by reason of their marriage to
aliens only after the death of their husbands or the termination of their marital
status; and
WHEREAS, there are natural born Filipinos who have lost their Philippine
citizenship but now desire to re-acquire Philippine citizenship;

78

Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,

by virtue of the powers in me vested by the Constitution, do hereby decree and
order that: (1) Filipino women who lost their Philippine citizenship by marriage
to aliens; and (3) 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
Instructions 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.
The aforesaid Special Committee is hereby authorized to promulgate rules and
regulations and prescribe the appropriate forms and the required fees for the
effective implementation of this Decree.
This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy-five.
30 See footnote no. 6, supra.
31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
32 The term of office of all local elective officials elected after the effectivity of
this Code shall be three (3) years, starting from noon of June 30, 1992 or such
date as may be provided for by law, . . ." Sec. 43, Local Government Code.
33 96 Phil. 447, 453 (1955).
34 The following are excerpts from the transcript of stenographic notes of the
oral argument held on March 19, 1996:
JUSTICE PANGANIBAN: Mr. Counsel, it is your position then that the
candidate should be a citizen at the time of proclamation?
ATTY. BRILLANTES: Yes, Your Honor, it is required that he must be a citizen
at the time of proclamation and not only that, at the time that he assumes the
office he must have the continuing qualification as a citizen.
JUSTICE PANGANIBAN: Should that not be reckoned from the time of filing
of certificate of candidacy or at least the day of the election?

ATTY. BRILLANTES: Yes, Your Honor, there are positions taken that it should
be reckoned from the date of certificate of candidacy as in the case of
qualification for Batasang Pambansa before under B.P. 53 - it says that for
purposes of residence it must be reckoned . . . from the time of the filing of the
certificate, for purposes of age, from the time of the date of the election. But
when we go over all the provisions of law under current laws, Your Honor,
there is no qualification requirement insofar as citizenship is concern(ed) as to
when, as to when you should be a citizen of the Philippines and we say that if
there is no provision under any existing law which requires that you have to be
a citizen of the Philippines on the date of the filing or on the date of election
then it has to be equitably interpreted to mean that if you are already qualified
at the time that the office is supposed to be assumed then you should be
allowed to assume the office.
JUSTICE PANGANIBAN: Is it not also true that under the Local Autonomy
Code the candidate should also be a registered voter and to be a registered
voter one must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr. Frivaldo has always been
a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he
voted again in 1995. In fact, his eligibility as a voter was questioned but the
Court dismissed (sic) his eligibility as a voter and he was allowed to vote as in
fact, he voted in all the previous elections including on May 8, 1995.
JUSTICE PANGANIBAN: But the fact that he voted does not make him a
citizen. The fact is, he was declared not a citizen by this Court twice.
ATTY. BRILLANTES: That is true, Your Honor, we admit that he has been
twice declared not citizen and we admit the ruling of the Supreme Court is
correct but the fact is, Your Honor, the matter of his eligibility to vote as being
a registered voter was likewise questioned before the judiciary. There was a
ruling by the Municipal Court, there was a ruling by the Regional Trial Court
and he was sustained as a valid voter, so he voted.
JUSTICE PANGANIBAN: I raised this question in connection with your
contention that citizenship should be determined as of the time of proclamation
and not as of the time of the election or at the time of the filing of the certificate
of candidacy.
ATTY. BRILLANTES: That is true, Your Honor.

79

JUSTICE PANGANIBAN: And is it your contention that under the law,

particularly the Local Autonomy Code, the law does not specify when
citizenship should be possessed by the candidate, is that not correct?
ATTY. BRILLANTES: That is right, Your Honor, there is no express provision.
JUSTICE PANGANIBAN: I am also asking you that under the Local Autonomy
Code the candidate for governor or for other local positions should be a voter
and to be a voter one must be a citizen?
ATTY. BRILLANTES: That is right, Your Honor, but the fact of voting is not an
issue here because he was allowed to vote and he did in fact vote and in fact,
he was a registered voter. (TSN, March 19, 1996.)
35 Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus
Election Code of the Philippines", as amended, provides for the various
qualifications of voters, one of which is Filipino citizenship.
36 Comment, p. 11; rollo, p. 259.
37 See footnote no. 33.
38 Section 253 reads as follows:
Sec. 253. Petition for quo warranto. -- Any voter contesting the election of any
member of the Congress, 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 results of the election. (Art. XIV, Sec. 60, BP 697; Art.
XVIII, Sec. 189, par. 2, 1978 EC).
Any voter contesting the election of any municipal or barangay 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 regional trial court or metropolitan
or municipal trial court, respectively, within ten days after the proclamation of
the results of the election. (Art. XVIII, Sec. 189, par. 2, 1978 EC).
39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500
(May 25, 1988), and Nilo vs. Court of Appeals, 128 SCRA 519 (April 2, 1984).
40 Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. I, 1990 ed., p. 23 states:

statutes, (3) in case of curative statutes, (4) in case of laws interpreting others,
and (5) in case of laws creating new rights.
41 Id., p. 25.
42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.
43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208,
210 (1953).
44 Memorandum, p. 9.
45 73 Am Jur 2d, Sec. 351, p. 488.
46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.
47 Art. 10, Civil Code of the Philippines.
48 Based on the "Corrected Compliance" dated May 16, 1996 filed by the
Solicitor General, it appears that, excluding the case of Frivaldo, the longest
interval between date of filing of an application for repatriation and its approval
was three months and ten days; the swiftest action was a same-day approval.
49 Sec. 40. Disqualifications. -- The following persons are disqualified from
running for any elective local position:
xxx xxx xxx
(d) Those with dual citizenship;"
50 p. 11; rollo, p. 259.
51 Resolution, p. 12; rollo, p. 121.
52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17,
1993); Arao vs. Commission on Elections, 210 SCRA 290 (June 23, 1992).
53 The dispositive portion of said Resolution reads:
WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the office of Provincial Governor of
Sorsogon on the ground that he is not a citizen of the Philippines. Accordingly
respondent's certificate of candidacy is cancelled.
54 Petition, p. 19; rollo, p. 21.

Exceptions to Rule. -- Statutes can be given retroactive effect in the following

cases: (1) when the law itself so expressly provides, (2) in case of remedial

55 Resolution promulgated on December 19, 1995, p. 7; rollo, p. 116.

80

56 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim Yao vs.
Commissioner of Immigration, L-21289, October 4, 1971.
57 Art. IX, Sec. 2.
58 SPC No. 95-317 is entitled "Annulment of Proclamation" and contains the
following prayer:
WHEREFORE, it is most respectfully prayed of this Honorable Commission
that after due notice and hearing an Oder (sic) /Resolution/Decision be issued
as follows:
a) Annulling/setting aside the 30 June 1995 proclamation of respondent as the
duly election (sic), Governor of Sorsogon for being contrary to law;

Sec. 40 of Republic Act No. 7160 (Local Government Code of 1991) which
took effect on January 1, 1992, provides that those with dual citizenship are
disqualified from running for any elective local position, and effectively
overturns the ruling in Aznar. But the point is that to the extent possible, and
unless there exist provisions to the contrary, the laws have always been
interpreted to give fullest effect to the political will.
67 Benito vs. Commission on Elections, 235 SCRA 436, 442 (August 17,
1994).
68 This antagonism was clearly present in the two earlier cases involving
Frivaldo. See footnote no. 6.
PUNO, J., concurring:

b) Ordering the proclamation of the petitioner as duly elected governor of

Sorsogon;

1 The 1987 Constitution added the word "democratic" in the statement of the
principle.

xxx xxx xxx

2 Section 24(a) of the Tydings-McDuffie Law which authorized the Filipino

people to draft a Constitution in 1934 required that the "constitution formulated
and drafted shall be republican in form."

59 229 SCRA 666, 674 (February 4, 1994).

60 211 SCRA 297, 309 (July 3, 1992).
61 G.R. No. 120265, September 18, 1995.
62 Supra, at p. 312.
63 See footnotes 2 and 3.
64 174 SCRA 245, 254 (June 23, 1959).

This Court has observed that even before the Tydings-McDuffie Law, the
Philippine Bill and the Jones Law have ". . . extended the powers of a
republican form of government modeled after that of the United States to the
Philippines." Roa v. Collector of Customs, 23 Phil. 315, 340 [1912], Severino
v. Gov. General, 16 Phil. 366, 383 [1910], US v. Bull, 15 Phil. 7, 27 [1910].
3 Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation v. Southern
Kan. R. Co., 33 F. 900, 906.

65 Salonga and Yap, Public International Law, 1966 ed., p. 239.

66 In Espinosa vs. Aquino, (Electoral Case No. 9, Senate Electoral Tribunal
[SET]), the election of the late Senator Benigno S. Aquino, Jr. was upheld,
despite his not being of the required age on the day of the election, although
he celebrated his thirty-fifth birthday before his proclamation. Much later, in
1990, this Court held inAznar vs. Comelec (185 SCRA 703, May 25, 1990) that
even if Emilio "Lito" Osmea held an Alien Certificate of Registration as an
American citizen, he was still not disqualified from occupying the local elective
post of governor, since such certificate did not preclude his being "still a
Filipino." The holding in Aquino was subsequently nullified by the adoption of
the 1987 Constitution (Art. VI, Sec. 3), which specified that the age qualification
must be possessed on the day of the elections, and not on the day of the
proclamation of the winners by the board of canvassers. On the other hand,

4 Dean of the UP College of Law; later President of U.P., and Delegate to the
1971 Constitutional Convention.
5 Since, Philippine Political Law, Principles and Concepts, 1954, ed., p. 22.
6 Barker, Principles of Social and Political Theory, p. 59 (1952 ed.).
7 118 US 356.
8 Cruz, Philippine Political Law, p. 49, [1991 ed.].
9 Sinco, op. cit., pp. 23-24.
10 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.

81

11 Moya v. del Fierro, 69 Phil. 199.

G.R. No. 119976 September 18, 1995

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. 8 On the same day, the Provincial Election
Supervisor of Leyte informed petitioner that:

IMELDA
ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

[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

KAPUNAN, J.:

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. 95009 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" 10 which she
sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence. 11 Impugning
respondent's motive in filing the petition seeking her disqualification, she noted
that:

A constitutional provision should be construed as to give it effective operation

and suppress the mischief at which it is aimed. 1 The 1987 Constitution
mandates that an aspirant for election to the House of Representatives 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." 2 The mischief which this provision reproduced verbatim 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" 5 with the
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 6and in her
Certificate of Candidacy. He prayed that "an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy." 7

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

82

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. 14 Dealing with
two primary issues, namely, the validity of 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 ofAlialy 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

83

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 withanimus 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. 18A 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 16 of the
April 24, 1995 Resolution declaring her not qualified to run for the position of

84

Member of the House of Representatives for the First Legislative District of

Leyte. 17 The Resolution tersely 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 20 this court took the concept of
domicile to mean an individual's "permanent home", "a place to which,
whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose
intent." 21 Based on the foregoing, domicile includes the twin elements of "the
fact of residing or physical presence in a fixed place" and animus manendi, or
the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given
area, community or country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave when the purpose
for which the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a person's intent be to
remain, it becomes his domicile; if his intent is to leave as soon as his purpose
is established it is residence. 22 It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person
can only have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:

85

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.

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

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.

Mr. De los Reyes: Domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a fixed
place, but also personal presence in that place, coupled with conduct indicative
of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a
case involving the qualifications of the respondent therein to the post of
Municipal
President
of
Dumaguete,
Negros
Oriental. Faypon
vs. Quirino, 27 held that the absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where
one is elected does not constitute loss of residence. 28 So 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.

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

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?

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.

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?

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

concluded that the framers of the 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.

86

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, 33 supra, we stressed:
[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, 34 We explained that:
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

87

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

88

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. 38 In the case at bench, the evidence adduced by private
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." 39 The
presumption that the wife 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:

89

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 42 where the spouses could
not be compelled to live with each 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 43 this Court held that "[a] married
woman may acquire a residence or domicile separate 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 Arroyo45 the Court held 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

90

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. 48 Moreover, petitioner contends that it is the House of
Representatives Electoral 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, 49 "so that noncompliance with them does not invalidate the judgment on the theory that if
the statute had intended such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory provision is often made on
grounds of necessity. Adopting the same view held by several American
authorities, this court inMarcelino 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

91

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, 52 it is 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. 53 Petitioner not being a member of the 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.
Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated
alike, while things that are unalike should be treated unalike in proportion to
their unalikeness. 1 Like other candidates, petitioner has clearly met the
residence requirement provided by Section 6, Article VI of the
Constitution. 2 We cannot disqualify her and treat her unalike, for the
Constitution guarantees equal protection of the law. I proceed from the
following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban,
Leyte. Her parents were domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place. Petitioner went to school
and thereafter worked there. I consider Tacloban as her initial domicile, both
her domicile of origin and her domicile of choice. Her domicile of origin as it
was the domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner married the
late President Ferdinand E. Marcos. By contracting marriage, her domicile
became subject to change by law, and the right to change it was given by
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. 3 (Emphasis supplied)
In De la Via v. Villareal and Geopano, 4 this Court explained why the domicile
of the wife ought to follow that of the husband. We held: "The reason is founded

92

upon the theoretic identity of person and interest between the husband and
the wife, and the presumption that, from the nature of the relation, the home of
one is the home of the other. It is intended to promote, strengthen, and secure
their interests in this relation, as it ordinarily exists, where union and harmony
prevail." 5 In accord with this objective, Article 109 of the Civil Code also
obligated the husband and wife "to live together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso facto resulted in the loss
of her Tacloban domicile. I respectfully submit that her marriage by itself
alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil
Code merely gave the husband the right to fix the domicile of the family. In the
exercise of the right, the husband may explicitly choose the prior domicile of
his wife, in which case, the wife's domicile remains unchanged. The husband
can also implicitly acquiesce to his wife's prior domicile even if it is different.
So we held in de la Via, 6
. . . . When married women as well as children subject to parental authority
live, with the acquiescence of their husbands or fathers, in a place distinct from
where the latter live, they have their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the
husband in the exercise of the right conferred by Article 110 of the Civil Code
binds the wife. Any and all acts of a wife during her coverture contrary to the
domiciliary choice of the husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not only because the wife
lacks the capacity to choose her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised
his right to fix the family domicile and established it in Batac, Ilocos Norte,
where he was then the congressman. At that particular point of time and
throughout their married life, petitioner lost her domicile in Tacloban, Leyte.
Since petitioner's Batac domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as Senator, when they lived
in San Juan, Rizal and where she registered as a voter. It was not also affected
in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel,
Manila. Nor was it affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila

during the incumbency of her husband as President of the nation. Under Article
110 of the Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any such change.
To a large degree, this follows the common law that "a woman on her marriage
loses her own domicile and by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she believes or
intends." 7
Fourth. The more difficult task is how to interpret the effect of the death on
September 28, 1989 of former President Marcos on petitioner's Batac
domicile. The issue is of first impression in our jurisdiction and two (2) schools
of thought contend for acceptance. One is espoused by our distinguished
colleague, Mr. Justice Davide, Jr., heavily relying on American authorities. 8 He
echoes the theory that after the husband's death, the wife retains the last
domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still
retains her dead husband's domicile is based on ancient common law which
we can no longer apply in the Philippine setting today. The common law
identified the domicile of a wife as that of the husband and denied to her the
power of acquiring a domicile of her own separate and apart from him. 9 Legal
scholars agree that two (2) reasons support this common law doctrine.
The first reason as pinpointed by the legendary Blackstone is derived from the
view that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the
husband." 10 The second reason lies in "the desirability of having the interests
of each member of the family unit governed by the same
law." 11 The presumption that the wife retains the domicile of her deceased
husband is an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations
of civil life . . . This is the law of the Creator." Indeed, the rulings relied upon
by Mr. Justice Davide in CJS 13and AM JUR 2d 14 are American state court
decisions handed down between the years 1917 15 and 1938, 16 or before the
time when women were accorded equality of rights with men. Undeniably, the
women's liberation movement resulted in far-ranging state legislations in the
United States to eliminate gender inequality. 17 Starting in the decade of the
seventies, the courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when the US

93

Supreme Court in Reed v. Reed, 18 struck a big blow for women equality when
it declared as unconstitutional an Idaho law that required probate courts to
choose male family members over females as estate administrators. It held
that mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case law on the status
of women virtually obliterated the iniquitous common law surrendering the
rights of married women to their husbands based on the dubious theory of the
parties' theoretic oneness. The Corpus Juris Secundum editors did not miss
the relevance of this revolution on women's right as they observed: "However,
it has been declared that under modern statutes changing the status of
married women and departing from the common law theory of marriage, there
is no reason why a wife may not acquire a separate domicile for every purpose
known to the law." 19 In publishing in 1969 theRestatement of the Law, Second
(Conflict of Laws 2d), the reputable American Law Institute also categorically
stated that the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically the same rights
and powers as her unmarried sister." 20
In the case at bench, we have to decide whether we should continue clinging
to the anachronistic common lawthat demeans women, especially married
women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before
1988, our laws particularly the Civil Code, were full of gender discriminations
against women. Our esteemed colleague, Madam Justice Flerida Ruth
Romero, cited a few of them as follows: 21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under
certain restrictions or disabilities. For instance, the wife cannot accept gifts
from others, regardless of the sex of the giver or the value of the gift, other
than from her very close relatives, without her husband's consent. She may
accept only from, say, her parents, parents-in-law, brothers, sisters and the
relatives within the so-called fourth civil degree. She may not exercise her
profession or occupation or engage in business if her husband objects on
serious grounds or if his income is sufficient to support their family in
accordance with their social standing. As to what constitutes "serious grounds"
for objecting, this is within the discretion of the husband.
xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law
being proposed by the University of the Philippines Law Center would allow
absolute divorce which severes the matrimonial ties, such that the divorced
spouses are free to get married a year after the divorce is decreed by the
courts. However, in order to place the husband and wife on an equal footing
insofar as the bases for divorce are concerned, the following are specified as
the grounds for absolute divorce: (1) adultery or having a paramour committed
by the respondent in any of the ways specified in the Revised Penal Code or
(2) an attempt by the respondent against the life of the petitioner which
amounts to attempted parricide under the Revised Penal Code; (3)
abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married couple
even if the wife may be the more astute or enterprising partner. The law does
not leave it to the spouses to decide who shall act as such administrator.
Consequently, the husband is authorized to engage in acts and enter into
transactions beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to
their rights and responsibilities. 22
The Family Code attained this elusive objective by giving new rights to married
women and by abolishing sex-based privileges of husbands. Among others,
married women are now given the joint right to administer the family property,
whether in the absolute community system or in the system of conjugal
partnership; 23 joint parental authority over their minor children, both over their
persons as well as their properties; 24 joint responsibility for the support of the
family; 25 the right to jointly manage the household; 26 and, the right to object to
their husband's exercise of profession, occupation, business or activity. 27 Of
particular relevance to the case at bench is Article 69 of the Family Code which
took away the exclusive right of the husband to fix the family domicile and gave
it jointly to the husband and the wife, thus:

94

Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should
live abroad or there are other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is not compatible with
the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of
the husband and wife to live together, former Madam Justice Alice Sempio-Diy
of the Court of Appeals specified the instances when a wife may now refuse
to live with her husband, thus: 28
(2) The wife has the duty to live with her husband, but she may refuse to do
so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her
Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults,
making common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along
with her mother-in-law and they have constant quarrels (Del Rosario v. Del
Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp
(1 Manresa 329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby,
38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely
emancipated the wife from the control of the husband, thus abandoning the
parties' theoretic identity of interest. No less than the late revered Mr. Justice
J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law
Center gave this insightful view in one of his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to
emancipate the wife from the exclusive control of the husband and to place
her at parity with him insofar as the family is concerned. The wife and the
husband are now placed on equal standing by the Code. They are now joint
administrators of the family properties and exercise joint authority over the
persons and properties of their children. This means a dual authority in the
family. The husband will no longer prevail over the wife but she has to agree
on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between husband
and wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal,
it becomes a dead-letter law, and we are not free to resurrect it by giving it
further effect in any way or manner such as by ruling that the petitioner is still
bound by the domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our
Constitution and its firm guarantees of due process and equal protection of
law. 30 It can hardly be doubted that the common law imposition on a married
woman of her dead husband's domicile even beyond his grave is patently
discriminatory to women. It is a gender-based discrimination and is not
rationally related to the objective of promoting family solidarity. It cannot
survive a constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned with equality
between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section
14, Article II provides: "The State recognizes the role of women in nation
building, and shall ensure fundamental equality before the law of women and
men. We shall be transgressing the sense and essence of this constitutional
mandate if we insist on giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance
is to rule that petitioner reacquired her Tacloban domicile upon the death of
her husband in 1989. This is the necessary consequence of the view that
petitioner's Batac dictated domicile did not continue after her husband's death;
otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also
restores the right of petitioner to choose her domicile before it was taken away

95

by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the
common law requiring petitioner to choose again her Tacloban domicile before
she could be released from her Batac domicile. She lost her Tacloban domicile
not through her act but through the act of her deceased husband when he fixed
their domicile in Batac. Her husband is dead and he cannot rule her beyond
the grave. The law disabling her to choose her own domicile has been
repealed. Considering all these, common law should not put the burden on
petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that
petitioner chose to reacquire her Tacloban domicile, still, the records reveal
ample evidence to this effect. In her affidavit submitted to the respondent
COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several
requests for my return were denied by President Corazon C. Aquino, and after
I filed suits for our Government to issue me my passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not
livable as they had been destroyed and cannibalized. The PCGG, however,
did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment on Ayala Avenue, a house in South
Forbes Park which my daughter rented, and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence
of my brother in San Jose, Tacloban City, and pursued my negotiations with
PCGG to recover my sequestered residences in Tacloban City and Barangay
Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day
that year, I renovated my parents' burial grounds and entombed their bones
which had been excalvated, unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol

Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot,
Leyte . . . to make them livable for us the Marcos family to have a home in our
own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo,
in his letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative,
allowed me to repair and renovate my Leyte residences. I quote part of his
letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she
intends to visit our sequestered properties in Leyte, please allow her access
thereto. She may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her undertaking said
repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after repairs and
renovations were completed. In August 1994, I transferred from San Jose,
Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG
permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of
her brother in San Jose, Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City
and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of
the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban
domicile of petitioner is nil. He presented petitioner's Voter's Registration

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Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay
Olot, Tolosa, Leyte wherein she stated that her period of residence in said
barangay was six (6) months as of the date of her filing of said Voter's
Registration Record on January 28, 1995. 31 This statement in petitioner's
Voter's Registration Record is a non-prejudicial admission. The Constitution
requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of
Leyte. Petitioner's statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprove that she has also resided in
Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both
within the First District of Leyte, hence, her six (6) months residence in Olot
should be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8, 1995 32 where
she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March 1, 1995 it was corrected
by petitioner. In her Amended/Corrected Certificate of Candidacy, 33 petitioner
wrote "since childhood" after Item No. 8. The amendment of a certificate of
candidacy to correct a bona fide mistake has been allowed by this Court as a
matter of course and as a matter of right. As we held in Alialy
v. COMELEC, 34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the
original certificate of candidacy presented before the deadline September 11,
1959, did not render the certificate invalid.The amendment of the certificate,
although at a date after the deadline, but before the election, was substantial
compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed
on March 8, 1995 cannot be used as evidence against her. Private
respondent's petition for the disqualification of petitioner rested alone on these
two (2) brittle pieces of documentary evidence petitioner's Voter's
Registration Record and her original Certificate of Candidacy. Ranged against
the evidence of the petitioner showing her ceaseless contacts with Tacloban,
private respondent's two (2) pieces of evidence are too insufficient to disqualify
petitioner, more so, to deny her the right to represent the people of the First
District of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona
fide candidates for any public office shall be free from any form of harassment
and discrimination." 35 A detached reading of the records of the case at bench
will show that all forms of legal and extra-legal obstacles have been thrown
against petitioner to prevent her from running as the people's representative
in the First District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the instant
petition is devious. 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 (Montejo) 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." (Annex "2" of respondent's affidavit,
Annex "2"). After respondent (petitioner herein) had registered as a voter in
Tolosa following completion of her six-month actual residence therein,
petitioner (Montejo) filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such move up
to the Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other
Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District and to make it a part of the new
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 himself along with
respondent (petitioner herein) 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.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion, 37 held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election Officer of Tacloban City not to allow
respondent (petitioner herein) to register thereat since she is a resident of
Tolosa and not Tacloban City. The purpose of this move of the petitioner
(Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter

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of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato,
Out of Which the New Provinces of Biliran, Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte,
transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of Leyte, opposed the move of the
petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29,
1994), the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the Commission.
Believing that he could get a favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that the respondent (petitioner herein)
will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice Reynato
S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred
the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of the province of Leyte, is
annulled and set aside. We also deny the Petition praying for the transfer of
the municipality of Tolosa from the First District to the Second District of the
province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both Tacloban
City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will
allow the harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be adjudged by a "different"

Constitution, and the worst way to interpret the Constitution is to inject in its
interpretation, bile and bitterness.
Sixth. In Gallego v. Vera, 38 we explained that the reason for this residence
requirement is "to exclude 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 . . . ." Petitioner's lifetime contacts with
the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None
can argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to
effectuate the will of the electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while
private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three
(36,833) votes. Petitioner is clearly the overwhelming choice of the electorate
of the First District of Leyte and this is not a sleight of statistics. We cannot
frustrate this sovereign will on highly arguable technical considerations. In
case of doubt, we should lean towards a rule that will give life to the people's
political judgment.
A final point. The case at bench provides the Court with the rare opportunity to
rectify the inequality of status between women and men by rejecting the
iniquitous common law precedents on the domicile of married women and by
redefining domicile in accord with our own culture, law, and Constitution. To
rule that a married woman is eternally tethered to the domicile dictated by her
dead husband is to preserve the anachronistic and anomalous balance of
advantage of a husband over his wife. We should not allow the dead to govern
the living even if the glories of yesteryears seduce us to shout long live the
dead! The Family Code buried this gender-based discrimination against
married women and we should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the
position of Representative of the First Congressional District of Leyte. I wish,
however, to express a few comments on the issue of petitioner's domicile.

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Domicile has been defined as that place in which a person's habitation is fixed,
without any present intention of removing therefrom, and that place is properly
the domicile of a person in which he has voluntarily fixed his abode, or
habitation, not for a mere special or temporary purpose, but with a present
intention of making it his permanent home (28 C.J.S. 1). It denotes a fixed
permanent residence to which when absent for business, or pleasure, or for
like reasons one intends to return, and depends on facts and circumstances,
in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA
966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law
attributes to every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom he is legally
dependent at the time of his birth. While the domicile of origin is generally the
place where one is born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile
of choice, on the other hand, is the place which the person has elected and
chosen for himself to displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile
of choice, the following requisites must concur, namely, (a) residence or bodily
presence in the new locality, (b) intention to remain there or animus manendi,
and (c) an intention to abandon the old domicile oranimus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A
third classification is domicile by operation of law which attributes to a person
a domicile independent of his own intention or actual residence, ordinarily
resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election
purposes it means domicile (Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections misapplied this concept,
of domicile which led to petitioner's disqualification by ruling that petitioner
failed to comply with the constitutionally mandated one-year residence
requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many places as conduct
disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of origin is not sufficient
to constitute abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent reason to depart

from this rule except to surmise petitioner's intent of abandoning her domicile
of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a
new domicile due to her marriage, a domicile by operation of law. The
proposition is that upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change
thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily
supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in 1954
with then Congressman Marcos. By legal fiction she followed the domicile of
her husband. In my view, the reason for the law is for the spouses to fully and
effectively perform their marital duties and obligations to one another. 1 The
question of domicile, however, is not affected by the fact that it was the legal
or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus,
while the wife retains her marital domicile so long as the marriage subsists,
she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite absurd and unfair
situation of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of
Tacloban, Leyte upon her husband's death without even signifying her
intention to that effect. It is for the private respondent to prove, not for petitioner
to disprove, that petitioner has effectively abandoned Tacloban, Leyte for
Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16),
because the presumption is strongly in favor of an original or former domicile,
as against an acquired one (28 C.J.S. 16). Private respondent unfortunately
failed to discharge this burden as the record is devoid of convincing proof that
petitioner has acquired whether voluntarily or involuntarily, a new domicile to
replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with
the constitutional one-year residence requirement. After her exile abroad, she
returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her
residential house and other properties forbade her necessitating her transient

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stay in various places in Manila (Affidavit p.6, attached as Annex I of the

Petition). In 1992, she ran for the position of president writing in her certificate
of candidacy her residence as San Juan, Metro Manila. After her loss therein,
she went back to Tacloban City, acquired her residence certificate 2 and
resided with her brother in San Jose. She resided in San Jose, Tacloban City
until August of 1994 when she was allowed by the PCGG to move and reside
in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It
was in the same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register anew as
voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the reckoning period of
the one-year residence requirement the date when she applied for the
cancellation of her previous registration in San Juan, Metro Manila. The fact
which private respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election from San Juan,
Metro Manila to San Jose, Tacloban City, and resided therein until August of
1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing
that both Tacloban City and Tolosa, Leyte are within the First Congressional
District of Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected. Petitioner, therefore,
has satisfactorily complied with the one-year qualification required by the 1987
Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that
she was disqualified from running for Representative of her District and that,
in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the
COMELEC pronounce its decision as has been its unvarying practice in the
past, but by a startling succession of "reverse somersaults." Indicative of its
shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original
Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by
the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a
day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the
event that the results of the canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had won overwhelmingly over

her opponent), but almost simultaneously reversing itself by directing that even
if she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at
bench is the interpretation to be given to the one-year residency requirement
imposed by the Constitution on aspirants for a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be synonymous with
"domicile" for election purposes, it is important to determine whether
petitioner's domicile was in the First District of Leyte and if so, whether she
had resided there for at least a period of one year. Undisputed is her domicile
of origin, Tacloban, where her parents lived at the time of her birth. Depending
on what theory one adopts, the same may have been changed when she
married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with
him at the residence fixed by him during his lifetime. What may confuse the
layman at this point is the fact that the term "domicile" may refer to "domicile
of origin," "domicile of choice," or "domicile by operation of law," which subject
we shall not belabor since it has been amply discussed by the ponente and in
the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to
the effect of the husband's death on the domicile of the widow. Some scholars
opine that the widow's domicile remains unchanged; that the deceased
husband's wishes perforce still bind the wife he has left behind. Given this
interpretation, the widow cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally
to fix the residence or domicile of the family, as laid down in the Civil
Code, 2 but to continue giving obeisance to his wishes even after the rationale
underlying the mutual duty of the spouses to live together has ceased, is to
close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her
domicile of origin upon the demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow with a domicile? To
answer this question which is far from rhetorical, one will have to keep in mind
the basic principles of domicile. Everyone must have a domicile. Then one
must have only a single domicile for the same purpose at any given time. Once
established, a domicile remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject to.

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At this juncture, we are confronted with an unexplored legal terrain in this

jurisdiction, rendered more murky by the conflicting opinions of foreign legal
authorities. This being the state of things, it is imperative as it is opportune to
illumine the darkness with the beacon light of truth, as dictated by experience
and the necessity of according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize and protect the human
rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil,
political and social rights are concerned, is a relatively recent phenomenon
that took seed only in the middle of this century. It is a historical fact that for
over three centuries, the Philippines had been colonized by Spain, a
conservative, Catholic country which transplanted to our shores the Old World
cultures, mores and attitudes and values. Through the imposition on our
government of the Spanish Civil Code in 1889, the people, both men and
women, had no choice but to accept such concepts as the husband's being
the head of the family and the wife's subordination to his authority. In such
role, his was the right to make vital decisions for the family. Many instances
come to mind, foremost being what is related to the issue before us, namely,
that "the husband shall fix the residence of the family." 3 Because he is made
responsible for the support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property, with a few
exceptions 5 and may, therefore, dispose of the conjugal partnership property
for the purposes specified under the law; 6 whereas, as a general rule, the wife
cannot bind the conjugal partnership without the husband's consent. 7 As
regards the property pertaining to the children under parental authority, the
father is the legal administrator and only in his absence may the mother
assume his powers. 8 Demeaning to the wife's dignity are certain strictures on
her personal freedoms, practically relegating her to the position of minors and
disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the fourth
degree. 9 With respect to her employment, the husband wields a veto power in
the case the wife exercises her profession or occupation or engages in
business, provided his income is sufficient for the family, according to its social
standing and his opposition is founded on serious and valid grounds. 10 Most
offensive, if not repulsive, to the liberal-minded is the effective prohibition upon
a widow to get married till after three hundred days following the death of her
husband, unless in the meantime, she has given birth to a child. 11 The mother
who contracts a subsequent marriage loses the parental authority over her
children, unless the deceased husband, father of the latter, has expressly

provided in his will that his widow might marry again, and has ordered that in
such case she should keep and exercise parental authority over their
children. 12 Again, an instance of a husband's overarching influence from
beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of
years evoked no protest from them until the concept of human rights and
equality between and among nations and individuals found hospitable
lodgment in the United Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish "conquistadores" had been
overthrown by the American forces at the turn of the century. The bedrock of
the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing
largely to the burgeoning of the feminist movement. What may be regarded as
the international bill of rights for women was implanted in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly which entered into force as an
international treaty on September 3, 1981. In ratifying the instrument, the
Philippines bound itself to implement its liberating spirit and letter, for its
Constitution, no less, declared that "The Philippines. . . adopts the generally
accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations." 13 One such principle embodied in the CEDAW is
granting to men and women "the same rights with regard to the law relating to
the movement of persons and the freedom to choose their residence and
domicile."14 (Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was
reflected in the 1987 Constitution of the Philippines and later, in the Family
Code, 15 both of which were speedily approved by the first lady President of
the country, Corazon C. Aquino. Notable for its emphasis on the human rights
of all individuals and its bias for equality between the sexes are the following
provisions: "The State values the dignity of every human person and
guarantees full respect for human rights" 16 and "The State recognizes the role
of women in nation-building, and shall ensure the fundamental equality before
the law of women and men." 17
A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family

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Code of almost all of the unreasonable strictures on wives and the grant to
them of personal rights equal to that of their husbands. Specifically, the
husband and wife are now giventhe right jointly to fix the family
domicile; 18 concomitant to the spouses' being jointly responsible for the
support of the family is the right and duty of both spouses to manage the
household; 19 the administration and the enjoyment of the community property
shall belong to both spouses jointly; 20 the father and mother shall now jointly
exercise legal guardianship over the property of their unemancipated common
child 21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights
are concerned, Congress passed a law popularly known as "Women in
Development and Nation Building Act" 22 Among the rights given to married
women evidencing their capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute
security and credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector
programs granting agricultural credit, loans and non material resources and
shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into
insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying
for passports, secure visas and other travel documents, without need to secure
the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in
Beijing, let this Court now be the first to respond to its clarion call that
"Women's Rights are Human Rights" and that "All obstacles to women's full
participation in decision-making at all levels, including the family" should be
removed. Having been herself a Member of the Philippine Delegation to the
International Women's Year Conference in Mexico in 1975, this writer is only
too keenly aware of the unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and global, legislative,
executive and judicial, according more rights to women hitherto denied them
and eliminating whatever pockets of discrimination still exist in their civil,

political and social life, can it still be insisted that widows are not at liberty to
choose their domicile upon the death of their husbands but must retain the
same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no
longer be bound by the domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her domicile of origin, but
exercising free will, she may opt to reestablish her domicile of origin. In
returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of
which are located in the First District of Leyte, petitioner amply demonstrated
by overt acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up her domicile
in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system
that sets up ideals and directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are not repeated. A
compliant transience of a constitution belittles its basic function and weakens
its goals. A constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it respect and
allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless,
either by express statement or by necessary implication, a different intention
is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of
Article VI of the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless
he is a natural-born citizen of the Philippines and, on the day of the election,
is at least twenty-five years of age, able to read and write, and, except the
party-list representatives, 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 day of the election.

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Sec. 17. 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.
The Commission on Election (the "COMELEC") is constitutionally bound to
enforce and administer "all laws and regulations relative to the conduct of
election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to
the contrary, should include its authority to pass upon the qualification and
disqualification prescribed by law ofcandidates to an elective office. Indeed,
pre-proclamation controversies are expressly placed under the COMELEC's
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional
one-year residency requirement. The issue (whether or not there is here such
compliance), to my mind, is basically a question of fact or at least inextricably
linked to such determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a number of
exceptions under the basic heading of "grave abuse of discretion," are not
reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be
a plain matter. Generally, the term "residence" has a broader connotation that
may mean permanent (domicile), official (place where one's official duties may
require him to stay) or temporary (the place where he sojourns during a
considerable length of time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual residence (see Article 50, Civil
Code). In election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is synonymous
with "domicile," which imports not only an intention to reside in a fixed place
but also personal presence in that place, coupled with conduct indicative of

such intention." "Domicile" denotes a fixed permanent residence to which

when absent for business or pleasure, or for like reasons, one intends to
return. . . . . Residence thus acquired, however, may be lost by adopting
another choice of domicile. In order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality,
(2) an intention to remain there, and (3) an intention to abandon the old
domicile. 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.
Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends
when the jurisdiction of the Electoral Tribunal concerned begins. It signifies
that the protestee must have theretofore been duly proclaimed and has since
become a "member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a candidate is
just a ministerial function of the Commission on Elections dictated solely on
the number of votes cast in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being adequately defined, does
not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts
and conditions such as may be required by law before a proclamation is
properly done.
The Court, on its part, should, in my view at least, refrain from any undue
encroachment on the ultimate exercise of authority by the Electoral Tribunals
on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the
effect of the Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest "relating to the
election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the
applicability to this case of Section 6 of Republic Act No. 6646, in relation to
Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx

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Sec. 6. Effect of Disqualification Case. Any candidate who has been

declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission and
the courts shall give priority to cases of disqualification by reason of violation
of this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final, judgment before an
election to be disqualified, and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to
look for not so much the specific instances they ostensibly would cover as the
principle they clearly convey. Thus, I will not scoff at the argument that it should
be sound to say that votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her favor and must
accordingly be considered to be stray votes. The argument, nevertheless, is
far outweighed by the rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA
1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and,
most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was
a unanimous decision penned by Justice Kapunan and concurred in by Chief
Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide,
Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and

Bellosillo were on official leave). For easy reference, let me quote from the
first Labo decision:
Finally, there is the question of whether or not the private respondent, who
filed the quo warrantopetition, 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, (137 SCRA 740) decided in 1985. In that case, 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
disregard as stray. In effect, the second placer won by default. That decision
was supported by eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
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, (136 SCRA 435)
which represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil.
238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although
one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the
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.)

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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. (at pp. 2021)
Considering all the foregoing, I am constrained to vote for the dismissal of the
petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on Elections has
the power to disqualify candidates on the ground that they lack eligibility for
the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are
elected, by filing a petition forquo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in the
House of Representatives Electoral Tribunal. That the parties in this case took
part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit
their dispute to that body.
The various election laws will be searched in vain for authorized proceedings
for determining a candidate's qualifications for an office before his election.
There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral
Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized
elections (R.A. No. 7166). There are, in other words, no provisions for preproclamation contests but only election protests or quo warranto proceedings
against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they
are not concerned with a declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to insanity, incompetence
or conviction of an offense) of a person either to be a candidate or to continue
as a candidate for public office. There is also a provision for the denial or
cancellation of certificates of candidacy, but it applies only to cases involving
false representations as to certain matters required by law to be stated in the
certificates.

These provisions are found in the following parts of the Omnibus Election
Code:
12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an 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 of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualifiedfrom continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the
election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):

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 6. Effect of Disqualification Case. Any candidate who has been declared

by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and; upon motion for the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added).

position of Representative, considering that on election day, May 8, 1995, [she]

would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and
corrected certificate of candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the House of Representatives
for the First Legislative District of Leyte" and not because of any finding that
she had made false representations as to material matters in her certificate of
candidacy.

7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.

The procedure hereinabove provided shall apply to petitions to deny due
course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.

Montejo's petition before the COMELEC was therefore not a petition for
cancellation of certificate of candidacy under 78 of the Omnibus Election
Code, but essentially a petition to declare private respondent ineligible. It is
important to note this, because, as will presently be explained, proceedings
under 78 have for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have for their purpose to
disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is
vested in the Electoral Tribunal of that body.

and the Local Government Code of 1991 (R.A. No. 7160):

40. Disqualifications. The following persons are disqualified from running
for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the effectivity
of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC,
while entitled "For Cancellation and Disqualification," contained no allegation
that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her Voter Registration
Record and Certificate of Candidacy, [she] is disqualified from running for the

Indeed, in the only cases in which this Court dealt with petitions for the
cancellation of certificates of candidacy, the allegations were that the
respondent candidates had made false representations in their certificates of
candidacy with regard to their citizenship, 1 age, 2 or residence. 3 But in the
generality of cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election
protests 4 or quo warranto proceedings 5 filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before electionthe 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. 6

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Second is the fact that the determination of a candidate's 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 of 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. 7 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 or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an
elected official's qualifications after the results of elections are proclaimed,
while being conspicuously silent about a pre-proclamation remedy based on
the same ground, the Omnibus Election Code, or OEC, by its silence
underscores the policy of not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
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 rulemaking power under Art. IX, A, 6 of the Constitution,

cannot do. 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 disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is
guilty of prohibited election practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of "grabbing the proclamation
and prolonging the election protest," 8 through the use of "manufactured"
election returns or resort to other trickery for the purpose of altering the results
of the election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the contrary, it is the
candidate against whom a proceeding for disqualification is brought who could
be prejudiced because he could be prevented from assuming office even
though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought
in an election protest or action forquo warranto filed pursuant to 253 of the
Omnibus Election Code within 10 days after his proclamation. With respect to
elective local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed either with the

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COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided

in Art. IX, C, 2(2) of the Constitution. In the case of the President and Vice
President, the petition must be filed with the Presidential Electoral Tribunal
(Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of
Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for
not allowing before the election the filing of disqualification proceedings based
on alleged ineligibility in the case of candidates for President, Vice President,
Senators and members of the House of Representatives, because of the same
policy prohibiting the filing of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction
over SPA No. 95-009; that its proceedings in that case, including its questioned
orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos
for the office of Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the
Commission on Elections in SPA No. 95-009, including its questioned orders
doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring
petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation
as Representative of the First District of Leyte suspended. To the extent that
Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for the office, it
should considered void.
The provincial board of canvassers should now proceed with the proclamation
of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written
ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must
begin and end with the provision itself. The controversy should not be blurred
by what, to me, are academic disquisitions. In this particular controversy, the
Constitutional provision on point states that "no person shall be a member
of the House of Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least twenty-five (25) years of
age, able to read and write, and except the party list representatives, 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 day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous with domicile. This
argument has been validated by no less than the Court in numerous
cases 1 where significantly the factual circumstances clearly and convincingly
proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different
modalities within which the phrase "a resident thereof (meaning, the legislative
district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which
case a person only has to prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his
domicile in which case he would have the luxury of district shopping, provided
of course, he satisfies the one-year residence period in the district as the
minimum period for eligibility to the position of congressional representative
for the district.
In either case, one would not be constitutionally disqualified for abandoning
his residence in order to return to his domicile of origin, or better still, domicile
of choice; neither would one be disqualified for abandoning altogether his
domicile in favor of his residence in the district where he desires to be a
candidate.
The most extreme circumstance would be a situation wherein a person
maintains several residences in different districts. Since his domicile of origin
continues as an option as long as there is no effective abandonment (animus
non revertendi), he can practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered by the unambiguous
limitation that "for a period of not less than one year immediately preceding the
day of the election", he must be a resident in the district where he desires to
be elected.

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To my mind, the one year residence period is crucial regardless of whether or

not the term "residence" is to be synonymous with "domicile." In other words,
the candidate's intent and actual presence in one district must in allsituations
satisfy the length of time prescribed by the fundamental law. And this, because
of a definite Constitutional purpose. He must be familiar with the environment
and problems of a district he intends to represent in Congress and the oneyear residence in said district would be the minimum period to acquire such
familiarity, if not versatility.

registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends
to register at Brgy. Olot, Tolosa, Leyte.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set
out in the now assailed decision of the Comelec 2nd Division dated 24 April
1995 (as affirmed by the Comelec en banc)

On March 8, 1995, respondent filed with the Office of the Provincial Election
Supervisor, Leyte, a Certificate of Candidacy for the position of Representative
of the First District of Leyte wherein she also alleged that she has been a
resident in the constituency where she seeks to be elected for a period of 7
months. The pertinent entries therein are as follows:

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 1948 when she graduated from high
school. She pursued her college studies in St. Paul's College, now Divine
Word University of Tacloban, where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese High 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 Marcos when he was still a congressman of Ilocos
Norte. She lived with him in Batac, 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.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of Metro
Manila. She claimed that in February 1986, 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. On August 24, 1994,
respondent filed a letter with the election officer of San Juan, Metro Manila,
requesting for cancellation of her registration in the Permanent List of Voters
in Precinct No. 157 of San Juan, Metro Manila, in order that she may be reregistered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer).
On August 31, 1994, respondent filed her Sworn Application for Cancellation
of Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of

Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form
No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that
she has resided in the municipality of Tolosa for a period of 6 months (Annex
A, Petition).

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED
IMMEDIATELY
PRECEDING
ELECTION:
________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith and
allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation imposed
by my oath is assumed voluntarily, without mental reservation or purpose of
evasion; and That the facts stated herein are true to the best of my knowledge.
(Sgd.)
(Signature of Candidate) 2

Imelda

Romualdez-Marcos

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains

the decisive component or seed of her disqualification. It is contained in her
answer under oath of "seven months" to the query of "residence in the
constituency wherein I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of
discretion in holding that petitioner is disqualified from the position of

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representative for the 1st congressional district of Leyte in the elections of

8 May 1995, for failure to meet the "not less than one-year residence in the
constituency (1st district, Leyte) immediately preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first
district of Leyte, the next important issue to resolve is whether or not the
Comelec can order the Board of Canvassers to determine and proclaim the
winner out of the remaining qualified candidates for representative in said
district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the
rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil.
238 that:
. . . . 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.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral
System and for other purposes) (84 O.G. 905, 22 February 1988) it is provided
that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and, upon motion of the

complainant or any intervenor, may, during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and
unambiguous meaning of the provision quoted above. As the law now stands,
the legislative policy does not limit its concern with the effect of a final
judgement of disqualification only before the election, but even during or after
the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated
the jurisdiction of the Court or Commission on Election to continue hearing the
petition for disqualification in case a candidate is voted for and receives the
highest number of votes, if for any reason, he is not declared by final judgment
before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend
proclamation (when evidence of his guilt is strong) is also explicit under the
law. What happens then when after the elections are over, one is declared
disqualified? Then, votes cast for him "shall not be counted" and in legal
contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer
the winner simply because a "winning candidate is disqualified," but that the
law considers him as the candidate who had obtained the highest number of
votes as a result of the votes cast for the disqualified candidate not being
counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no
reason why this Court should not re-examine and consequently abandon the
doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The
will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the
Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial
Board of Canvassers of Leyte to proclaim the candidate receiving the highest
number of votes, from among the qualified candidates, as the duly elected
representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:

110

While I agree with same of the factual bases of the majority opinion, I cannot
arrive conjointly at the same conclusion drawn therefrom Hence, this dissent
which assuredly is not formulated "on the basis of the personality of a petitioner
in a case."

was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro
Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.

I go along with the majority in their narration of antecedent facts, insofar as the
same are pertinent to this case, and which I have simplified as follows:

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A

of Olot, Tolosa, Leyte, for which purpose she filed with the therein Board of
Election Inspectors a voter's registration record form alleging that she had
resided in that municipality for six months.

1. Petitioner, although born in Manila, resided during her childhood in the

present Tacloban City, she being a legitimate daughter of parents who appear
to have taken up permanent residence therein. She also went to school there
and, for a time, taught in one of the schools in that city.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she alleged that
she had been a resident for "Seven Months" of the constituency where she
sought to be elected.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled
in Batac, Ilocos Norte, by operation of law she acquired a new domicile in that
place in 1954.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of

Candidacy" wherein her answer in the original certificate of candidacy to item
"8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or
replaced with a new entry reading "SINCE CHILDHOOD."

3. In the successive years and during the events that happened thereafter, her
husband having been elected as a Senator and then as President, she lived
with him and their family in San Juan, Rizal and then in Malacanang Palace in
San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in Batac,
Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these
merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty
positions successively, ever abandoned his domicile of origin in Batac, Ilocos
Norte where he maintained his residence and invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn
of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to
the Philippines in 1991 and resided in different places which she claimed to
have been merely temporary residences.

The sole issue for resolution is whether, for purposes of her candidacy,
petitioner had complied with the residency requirement of one year as
mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation
on the difference between residence and domicile. We have had enough of
that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile.
That is so understood in our jurisprudence and in American Law, in
contradistinction to the concept of residence for purposes of civil, commercial
and procedural laws whenever an issue thereon is relevant or controlling.

7. In 1992, petitioner ran for election as President of the Philippines and in her
certificate of candidacy she indicated that she was then a registered voter and
resident of San Juan, Metro Manila.

Consequently, since in the present case the question of petitioner's residence

is integrated in and inseparable from her domicile, I am addressing the issue
from the standpoint of the concept of the latter term, specifically its
permutations into the domicile of origin, domicile of choice and domicile by
operation of law, as understood in American law from which for this case we
have taken our jurisprudential bearings.

8. On August 24, 1994, she filed a letter for the cancellation of her registration
in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila
in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa,
Leyte." On August 31, 1994, she followed this up with her Sworn Application
for Cancellation of Voter's Previous Registration wherein she stated that she

My readings inform me that the domicile of the parents at the time of birth, or
what is termed the "domicile of origin," constitutes the domicile of an infant
until abandoned, or until the acquisition of a new domicile in a different
place. 1 In the instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.

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Now, as I have observed earlier, domicile is said to be of three kinds, that is,
domicile by birth, domicile by choice, and domicile by operation of law. The
first is the common case of the place of birth or domicilium originis, the second
is that which is voluntarily acquired by a party or domicilium propio motu; the
last which is consequential, as that of a wife arising from marriage, 3 is
sometimes called domicilium necesarium. There is no debate that the domicile
of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by
operation of law, not only international or American but of our own
enactment, 4 she acquired her husband's domicile of origin in Batac, Ilocos
Norte and correspondingly lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San
Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now San Juan,
Metro Manila do not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having resided in those places
was by reason of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her return to the
Philippines were, as she claimed, against her will or only for transient purposes
which could not have invested them with the status of domiciles of choice. 5
After petitioner's return to the Philippines in 1991 and up to the present
imbroglio over her requisite residency in Tacloban City or Olot, Tolosa, Leyte,
there is no showing that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of her legal domicile in
Batac, Ilocos Norte. On that score, we note the majority's own
submission 6 that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a
new one, and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition
of a domicile of choice apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or a domicile by
operation of law (domicilium necesarium). Since petitioner had lost
her domicilium originis which had been replaced by her domicilium
necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which,
if at all, can be the object of legal change under the contingencies of the case
at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion
of Commissioner Regalado E. Maambong in SPA 95-009 of the Commission
on Elections, 7 and advances this novel proposition.
It may be said 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 (sic,
1954). By operation of law (domicilium necesarium), her legal domicile at the
time of her marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of origin.
Because of her husband's subsequent death and through the operation of the
provisions of the New Family Code already in force at the time, however, her
legal domicile automatically reverted to her domicile of origin. . . . (Emphasis
supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making
a qualification that she did not intend to abandon her domicile of origin. I find
this bewildering since, in this situation, it is the law that declares where
petitioner's domicile is at any given time, and not her self-serving or putative
intent to hold on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a time, 8 the
majority would be suggesting that petitioner retained Tacloban City as (for lack
of a term in law since it does not exist therein) the equivalent of what is fancied
as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered
likewise in accordance with law. However, we are here being titillated with the
possibility of an automatic reversion to or reacquisition of a domicile of origin
after the termination of the cause for its loss by operation of law. The majority
agrees that since petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am impressed
by the ingeniousness of this theory which proves that, indeed, necessity is the
mother of inventions. Regretfully, I find some difficulty in accepting either the
logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he
abandons that chosen domicile, he does not per se recover his original
domicile unless, by subsequent acts legally indicative thereof, he evinces his
intent and desire to establish the same as his new domicile, which is precisely
what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do.

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One's subsequent abandonment of his domicile of choice cannot automatically

restore his domicile of origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its logical consequence,
that theory of ipso jure reversion would rule out the fact that said party could
already very well have obtained another domicile, either of choice or by
operation of law, other than his domicile of origin. Significantly and obviously
for this reason, the Family Code, which the majority inexplicably invokes,
advisedly does not regulate this contingency since it would impinge on one's
freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile
of choice (unless we assume that she entered into the marital state against
her will) but, on top of that, such abandonment was further affirmed through
her acquisition of a new domicile by operation of law. In fact, this is even a
case of both voluntary andlegal abandonment of a domicile of origin. With
much more reason, therefore, should we reject the proposition that with the
termination of her marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954. Otherwise, this
would be tantamount to saying that during the period of marital coverture, she
was simultaneously in possession and enjoyment of a domicile of origin which
was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's
death the wife has the right to elect her own domicile, 9 she nevertheless
retains the last domicile of her deceased husband until she makes an actual
change.10 In the absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the majority's theory
based on Articles 68 and 69 of the Family Code. All that is of any relevance
therein is that under this new code, the right and power to fix the family domicile
is now shared by the spouses. I cannot perceive how that joint right, which in
the first place was never exercised by the spouses, could affect the domicile
fixed by the law for petitioner in 1954 and, for her husband, long prior thereto.
It is true that a wife now has the coordinate power to determine
the conjugal or family domicile, but that has no bearing on this case. With the
death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was
and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of
her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and
expanded participation of women in the affairs of the nation, with equal rights
and recognition by Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial pronouncement which either
expressly or by necessary implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium originis of petitioner.
Definitely, as between the settled and desirable legal norms that should
govern this issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the eloquence of the
well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954
and not having automatically reacquired any domicile therein, she cannot
legally claim that her residency in the political constituency of which it is a part
continued since her birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that
constituency for only seven months prior to the election. These considerations
render it unnecessary to further pass upon the procedural issues raised by
petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of
merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice
Santiago M. Kapunan, more particularly on the issue of the petitioner's
qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions,
orders, or rulings of the COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs.
COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has
acted without or in excess of jurisdiction or with grave abuse of discretion
(Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the only issue left is whether
it acted with grave abuse of discretion in disqualifying the petitioner.

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My careful and meticulous perusal of the challenged resolution of 24 April 1995

of the COMELEC Second Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much less grave abuse thereof.
The resolution of the Second Division dispassionately and objectively
discussed in minute details the facts which established beyond cavil that
herein petitioner was disqualified as a candidate on the ground of lack of
residence in the First Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for
lack of proof that the petitioner has abandoned Tolosa as her domicile of origin,
which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC,
either by admission or by documentary evidence, overwhelming proof of the
loss or abandonment of her domicile of origin, which is Tacloban City and not
Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin,
that became her second domicile of choice, where her stay, unfortunately, was
for only seven months before the day of the election. She was then disqualified
to be a candidate for the position of Representative of the First Congressional
District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either
Tacloban City or Tolosa, Leyte. Nevertheless, she lost it by operation of law
sometime in May 1954 upon her marriage to the then Congressman (later,
President) Ferdinand E. Marcos. A domicile by operation of law is that domicile
which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife
arising from marriage (28 C.J.S. Domicile 7, 11). Under the governing law
then, Article 110 of the Civil Code, her new domicile or her domicile of choice
was the domicile of her husband, which was Batac, Ilocos Norte. Said Article
reads as follows:

For instance, under article 117 the wife may engage in business or practice a
profession or occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it impossible
for the wife to continue in business or in her profession. For justifiable reasons,
however, the wife may be exempted from living in the residence chosen by the
husband. The husband cannot validly allege desertion by the wife who refuses
to follow him to a new place of residence, when it appears that they have lived
for years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and Jurisprudence
on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and,
by operation of law, acquires that of her husband, no matter where the wife
actually lives or what she believes or intends. Her domicile is fixed in the sense
that it is declared to be the same as his, and subject to certain limitations, he
can change her domicile by changing his own (25 Am Jur 2d Domicile 48,
37).
It must, however, be pointed out that under Article 69 of the Family Code, the
fixing of the family domicile is no longer the sole prerogative of the husband,
but is now a joint decision of the spouses, and in case of disagreement the
court shall decide. The said article uses the term "family domicile," and not
family residence, as "the spouses may have multiple residences, and the wife
may elect to remain in one of such residences, which may destroy the duty of
the spouses to live together and its corresponding benefits" (ALICIA V.
SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).

Commenting thereon, civilist Arturo M. Tolentino states:

The theory of automatic restoration of a woman's domicile of origin upon the

death of her husband, which the majority opinion adopts to overcome the legal
effect of the petitioner's marriage on her domicile, is unsupported by law and
by jurisprudence. The settled doctrine is that after the husband's death the wife
has a right to elect her own domicile, but she retains the last domicile of her
husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or,
on the death of the husband, the power of the wife to acquire her own domicile
is revived, but until she exercises the power her domicile remains that of the
husband at the time of his death (25 Am Jur 2d Domicile 62, 45). Note that
what is revived is not her domicile of origin but her power to acquire her own
domicile.

Although the duty of the spouses to live together is mutual, the husband has a
predominant right because he is empowered by law to fix the family residence.
This right even predominates over some rights recognized by law in the wife.

Clearly, even after the death of her husband, the petitioner's domicile was that
of her husband at the time of his death which was Batac, Ilocos Norte, since
their residences in San Juan, Metro Manila, and San Miguel, Manila, were their

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.

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residences for convenience to enable her husband to effectively perform his

official duties. Their residence in San Juan was a conjugal home, and it was
there to which she returned in 1991 when she was already a widow. In her
sworn certificate of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated therein that she was a
resident of San Juan, Metro Manila. She also voted in the said elections in that
place.
On the basis of her evidence, it was only on 24 August 1994 when she
exercised her right as a widow to acquire her own domicile in Tolosa, Leyte,
through her sworn statement requesting the Election Officer of San Juan,
Metro Manila, to cancel her registration in the permanent list of voters in
Precinct 157 thereat and praying that she be "re-registered or transferred to
Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence"
(photocopy of Exhibit "B," attached as Annex "2" of private respondent
Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March
1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E,"
attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8
March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she
solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City
or Tolosa, Leyte? In the affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared under oath that her
"domicile or residence is Tacloban City." If she did intend to return to such
domicile or residence of origin why did she inform the Election Officer of San
Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her residence is
Olot, Tolosa, Leyte? While this uncertainty is not important insofar as
residence in the congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or abandoned her
domicile of origin by virtue of marriage and that such length of time diminished
her power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon
vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases which established
the principle that absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in business in other
states does not constitute loss of such residence or domicile. So is the reliance
on Section 117 of the Omnibus Election Code which provides that transfer of

residence to any other place by reason of one's "occupation; profession;

employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or detention in
government institutions in accordance with law" is not deemed as loss of
original residence. Those cases and legal provision do not include marriage of
a woman. The reason for the exclusion is, of course, Article 110 of the Civil
Code. If it were the intention of this Court or of the legislature to consider the
marriage of a woman as a circumstance which would not operate as an
abandonment of domicile (of origin or of choice), then such cases and legal
provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the
petitioner in her affidavit (Annex "A" of her Answer in COMELEC SPA No. 95009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban
City," and that she "never intended to abandon this domicile or residence of
origin to which [she] always intended to return whenever absent." Such a claim
of intention cannot prevail over the effect of Article 110 of the Civil Code.
Besides, the facts and circumstances or the vicissitudes of the petitioner's life
after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et
facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile,
[1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she
"merely committed an honest mistake" in writing down the word "seven" in the
space provided for the residency qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the light of the foregoing
disquisitions, would be all sound and fury signifying nothing. To me, she did
not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who
asserts a fact or the affirmative of an issue has the burden of proving it
(Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her domicile to that of her
husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with
Article 110 of the Civil Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived power to acquire her own

115

domicile, the burden is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike should be treated
alike, while things that are unalike should be treated unalike in proportion to
their unalikeness. 1 Like other candidates, petitioner has clearly met the
residence requirement provided by Section 6, Article VI of the
Constitution. 2 We cannot disqualify her and treat her unalike, for the
Constitution guarantees equal protection of the law. I proceed from the
following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban,
Leyte. Her parents were domiciled in Tacloban. Their ancestral house is in
Tacloban. They have vast real estate in the place. Petitioner went to school
and thereafter worked there. I consider Tacloban as her initial domicile, both
her domicile of origin and her domicile of choice. Her domicile of origin as it
was the domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner married the
late President Ferdinand E. Marcos. By contracting marriage, her domicile
became subject to change by law, and the right to change it was given by
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. 3 (Emphasis supplied)
In De la Via v. Villareal and Geopano, 4 this Court explained why the domicile
of the wife ought to follow that of the husband. We held: "The reason is founded
upon the theoretic identity of person and interest between the husband and
the wife, and the presumption that, from the nature of the relation, the home of
one is the home of the other. It is intended to promote, strengthen, and secure
their interests in this relation, as it ordinarily exists, where union and harmony
prevail." 5 In accord with this objective, Article 109 of the Civil Code also
obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether

petitioner's marriage to former President Marcos ipso facto resulted in the loss
of her Tacloban domicile. I respectfully submit that her marriage by itself
alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil
Code merely gave the husband the right to fix the domicile of the family. In the
exercise of the right, the husband may explicitly choose the prior domicile of
his wife, in which case, the wife's domicile remains unchanged. The husband
can also implicitly acquiesce to his wife's prior domicile even if it is different.
So we held in de la Via, 6
. . . . When married women as well as children subject to parental authority
live, with the acquiescence of their husbands or fathers, in a place distinct from
where the latter live, they have their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the
husband in the exercise of the right conferred by Article 110 of the Civil Code
binds the wife. Any and all acts of a wife during her coverture contrary to the
domiciliary choice of the husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not only because the wife
lacks the capacity to choose her domicile but also because they are contrary
to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised
his right to fix the family domicile and established it in Batac, Ilocos Norte,
where he was then the congressman. At that particular point of time and
throughout their married life, petitioner lost her domicile in Tacloban, Leyte.
Since petitioner's Batac domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as Senator, when they lived
in San Juan, Rizal and where she registered as a voter. It was not also affected
in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel,
Manila. Nor was it affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila
during the incumbency of her husband as President of the nation. Under Article
110 of the Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any such change.
To a large degree, this follows the common law that "a woman on her marriage
loses her own domicile and by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she believes or
intends." 7

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Fourth. The more difficult task is how to interpret the effect of the death on
September 28, 1989 of former President Marcos on petitioner's Batac
domicile. The issue is of first impression in our jurisdiction and two (2) schools
of thought contend for acceptance. One is espoused by our distinguished
colleague, Mr. Justice Davide, Jr., heavily relying on American authorities. 8 He
echoes the theory that after the husband's death, the wife retains the last
domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still
retains her dead husband's domicile is based on ancient common law which
we can no longer apply in the Philippine setting today. The common law
identified the domicile of a wife as that of the husband and denied to her the
power of acquiring a domicile of her own separate and apart from him. 9 Legal
scholars agree that two (2) reasons support this common law doctrine.
The first reason as pinpointed by the legendary Blackstone is derived from the
view that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the
husband." 10 The second reason lies in "the desirability of having the interests
of each member of the family unit governed by the same
law." 11 The presumption that the wife retains the domicile of her deceased
husband is an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations
of civil life . . . This is the law of the Creator." Indeed, the rulings relied upon
by Mr. Justice Davide in CJS 13and AM JUR 2d 14 are American state court
decisions handed down between the years 1917 15 and 1938, 16 or before the
time when women were accorded equality of rights with men. Undeniably, the
women's liberation movement resulted in far-ranging state legislations in the
United States to eliminate gender inequality. 17 Starting in the decade of the
seventies, the courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when the US
Supreme Court in Reed v. Reed, 18 struck a big blow for women equality when
it declared as unconstitutional an Idaho law that required probate courts to
choose male family members over females as estate administrators. It held
that mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case law on the status
of women virtually obliterated the iniquitous common law surrendering the
rights of married women to their husbands based on the dubious theory of the

parties' theoretic oneness. The Corpus Juris Secundum editors did not miss
the relevance of this revolution on women's right as they observed: "However,
it has been declared that under modern statutes changing the status of
married women and departing from the common law theory of marriage, there
is no reason why a wife may not acquire a separate domicile for every purpose
known to the law." 19 In publishing in 1969 theRestatement of the Law, Second
(Conflict of Laws 2d), the reputable American Law Institute also categorically
stated that the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically the same rights
and powers as her unmarried sister." 20
In the case at bench, we have to decide whether we should continue clinging
to the anachronistic common lawthat demeans women, especially married
women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before
1988, our laws particularly the Civil Code, were full of gender discriminations
against women. Our esteemed colleague, Madam Justice Flerida Ruth
Romero, cited a few of them as follows: 21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under
certain restrictions or disabilities. For instance, the wife cannot accept gifts
from others, regardless of the sex of the giver or the value of the gift, other
than from her very close relatives, without her husband's consent. She may
accept only from, say, her parents, parents-in-law, brothers, sisters and the
relatives within the so-called fourth civil degree. She may not exercise her
profession or occupation or engage in business if her husband objects on
serious grounds or if his income is sufficient to support their family in
accordance with their social standing. As to what constitutes "serious grounds"
for objecting, this is within the discretion of the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil Law
being proposed by the University of the Philippines Law Center would allow
absolute divorce which severes the matrimonial ties, such that the divorced
spouses are free to get married a year after the divorce is decreed by the
courts. However, in order to place the husband and wife on an equal footing
insofar as the bases for divorce are concerned, the following are specified as
the grounds for absolute divorce: (1) adultery or having a paramour committed

117

by the respondent in any of the ways specified in the Revised Penal Code or
(2) an attempt by the respondent against the life of the petitioner which
amounts to attempted parricide under the Revised Penal Code; (3)
abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married couple
even if the wife may be the more astute or enterprising partner. The law does
not leave it to the spouses to decide who shall act as such administrator.
Consequently, the husband is authorized to engage in acts and enter into
transactions beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to
their rights and responsibilities. 22
The Family Code attained this elusive objective by giving new rights to married
women and by abolishing sex-based privileges of husbands. Among others,
married women are now given the joint right to administer the family property,
whether in the absolute community system or in the system of conjugal
partnership; 23 joint parental authority over their minor children, both over their
persons as well as their properties; 24 joint responsibility for the support of the
family; 25 the right to jointly manage the household; 26 and, the right to object to
their husband's exercise of profession, occupation, business or activity. 27 Of
particular relevance to the case at bench is Article 69 of the Family Code which
took away the exclusive right of the husband to fix the family domicile and gave
it jointly to the husband and the wife, thus:

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of
the husband and wife to live together, former Madam Justice Alice Sempio-Diy
of the Court of Appeals specified the instances when a wife may now refuse
to live with her husband, thus: 28
(2) The wife has the duty to live with her husband, but she may refuse to do
so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her
Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults,
making common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along
with her mother-in-law and they have constant quarrels (Del Rosario v. Del
Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp
(1 Manresa 329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby,
38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely
emancipated the wife from the control of the husband, thus abandoning the
parties' theoretic identity of interest. No less than the late revered Mr. Justice
J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law
Center gave this insightful view in one of his rare lectures after retirement: 29

Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.

xxx xxx xxx

The court may exempt one spouse from living with the other if the latter should
live abroad or there are other valid and compelling reasons for the exemption.
However, such exemption shall not apply if the same is not compatible with
the solidarity of the family. (Emphasis supplied)

The Family Code is primarily intended to reform the family law so as to

emancipate the wife from the exclusive control of the husband and to place
her at parity with him insofar as the family is concerned. The wife and the
husband are now placed on equal standing by the Code. They are now joint
administrators of the family properties and exercise joint authority over the

118

persons and properties of their children. This means a dual authority in the
family. The husband will no longer prevail over the wife but she has to agree
on all matters concerning the family. (Emphasis supplied)

repealed. Considering all these, common law should not put the burden on
petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.

In light of the Family Code which abrogated the inequality between husband
and wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal,
it becomes a dead-letter law, and we are not free to resurrect it by giving it
further effect in any way or manner such as by ruling that the petitioner is still
bound by the domiciliary determination of her dead husband.

But even assuming arguendo that there is need for convincing proof that
petitioner chose to reacquire her Tacloban domicile, still, the records reveal
ample evidence to this effect. In her affidavit submitted to the respondent
COMELEC, petitioner averred:

Aside from reckoning with the Family Code, we have to consider our
Constitution and its firm guarantees of due process and equal protection of
law. 30 It can hardly be doubted that the common law imposition on a married
woman of her dead husband's domicile even beyond his grave is patently
discriminatory to women. It is a gender-based discrimination and is not
rationally related to the objective of promoting family solidarity. It cannot
survive a constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned with equality
between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section
14, Article II provides: "The State recognizes the role of women in nation
building, and shall ensure fundamental equality before the law of women and
men. We shall be transgressing the sense and essence of this constitutional
mandate if we insist on giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance
is to rule that petitioner reacquired her Tacloban domicile upon the death of
her husband in 1989. This is the necessary consequence of the view that
petitioner's Batac dictated domicile did not continue after her husband's death;
otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also
restores the right of petitioner to choose her domicile before it was taken away
by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the
common law requiring petitioner to choose again her Tacloban domicile before
she could be released from her Batac domicile. She lost her Tacloban domicile
not through her act but through the act of her deceased husband when he fixed
their domicile in Batac. Her husband is dead and he cannot rule her beyond
the grave. The law disabling her to choose her own domicile has been

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several
requests for my return were denied by President Corazon C. Aquino, and after
I filed suits for our Government to issue me my passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a threat to
the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not
livable as they had been destroyed and cannibalized. The PCGG, however,
did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine
Plaza in Pasay City, a friend's apartment on Ayala Avenue, a house in South
Forbes Park which my daughter rented, and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence
of my brother in San Jose, Tacloban City, and pursued my negotiations with
PCGG to recover my sequestered residences in Tacloban City and Barangay
Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day
that year, I renovated my parents' burial grounds and entombed their bones
which had been excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol
Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot,
Leyte . . . to make them livable for us the Marcos family to have a home in our
own motherland.
xxx xxx xxx

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42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo,
in his letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative,
allowed me to repair and renovate my Leyte residences. I quote part of his
letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she
intends to visit our sequestered properties in Leyte, please allow her access
thereto. She may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her undertaking said
repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after repairs and
renovations were completed. In August 1994, I transferred from San Jose,
Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG
permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of
her brother in San Jose, Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City
and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte,
she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of
the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban
domicile of petitioner is nil. He presented petitioner's Voter's Registration
Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay
Olot, Tolosa, Leyte wherein she stated that her period of residence in said
barangay was six (6) months as of the date of her filing of said Voter's
Registration Record on January 28, 1995. 31 This statement in petitioner's
Voter's Registration Record is a non-prejudicial admission. The Constitution
requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of
Leyte. Petitioner's statement proved that she resided in Olot six (6) months

before January 28, 1995 but did not disprove that she has also resided in
Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both
within the First District of Leyte, hence, her six (6) months residence in Olot
should be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8, 1995 32 where
she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of
candidacy has no evidentiary value because an March 1, 1995 it was corrected
by petitioner. In her Amended/Corrected Certificate of Candidacy, 33 petitioner
wrote "since childhood" after Item No. 8. The amendment of a certificate of
candidacy to correct a bona fide mistake has been allowed by this Court as a
matter of course and as a matter of right. As we held in Alialy
v. COMELEC, 34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the
original certificate of candidacy presented before the deadline September 11,
1959, did not render the certificate invalid.The amendment of the certificate,
although at a date after the deadline, but before the election, was substantial
compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed
on March 8, 1995 cannot be used as evidence against her. Private
respondent's petition for the disqualification of petitioner rested alone on these
two (2) brittle pieces of documentary evidence petitioner's Voter's
Registration Record and her original Certificate of Candidacy. Ranged against
the evidence of the petitioner showing her ceaseless contacts with Tacloban,
private respondent's two (2) pieces of evidence are too insufficient to disqualify
petitioner, more so, to deny her the right to represent the people of the First
District of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona
fide candidates for any public office shall be free from any form of harassment
and discrimination." 35 A detached reading of the records of the case at bench
will show that all forms of legal and extra-legal obstacles have been thrown
against petitioner to prevent her from running as the people's representative
in the First District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx

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10. Petitioner's (herein private respondent Montejo) motive in filing the instant
petition is devious. 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 (Montejo) 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." (Annex "2" of respondent's affidavit,
Annex "2"). After respondent (petitioner herein) had registered as a voter in
Tolosa following completion of her six-month actual residence therein,
petitioner (Montejo) filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such move up
to the Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other
Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District and to make it a part of the new
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 himself along with
respondent (petitioner herein) 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.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion, 37 held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein private
respondent Montejo) wrote the Election Officer of Tacloban City not to allow
respondent (petitioner herein) to register thereat since she is a resident of
Tolosa and not Tacloban City. The purpose of this move of the petitioner
(Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter
of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato,
Out of Which the New Provinces of Biliran, Guimaras and Saranggani Were
Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First
District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte,
transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of Leyte, opposed the move of the
petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29,
1994), the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution

No. 2736" which the Commission denied in a Resolution promulgated on

February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before the
Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the Commission.
Believing that he could get a favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that the respondent (petitioner herein)
will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice Reynato
S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred
the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of the province of Leyte, is
annulled and set aside. We also deny the Petition praying for the transfer of
the municipality of Tolosa from the First District to the Second District of the
province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both Tacloban
City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will
allow the harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is but one
Constitution for all Filipinos. Petitioner cannot be adjudged by a "different"
Constitution, and the worst way to interpret the Constitution is to inject in its
interpretation, bile and bitterness.
Sixth. In Gallego v. Vera, 38 we explained that the reason for this residence
requirement is "to exclude 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 . . . ." Petitioner's lifetime contacts with
the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None
can argue she cannot satisfy the intent of the Constitution.

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Seventh. In resolving election cases, a dominant consideration is the need to

effectuate the will of the electorate. The election results show that petitioner
received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while
private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three
(36,833) votes. Petitioner is clearly the overwhelming choice of the electorate
of the First District of Leyte and this is not a sleight of statistics. We cannot
frustrate this sovereign will on highly arguable technical considerations. In
case of doubt, we should lean towards a rule that will give life to the people's
political judgment.
A final point. The case at bench provides the Court with the rare opportunity to
rectify the inequality of status between women and men by rejecting the
iniquitous common law precedents on the domicile of married women and by
redefining domicile in accord with our own culture, law, and Constitution. To
rule that a married woman is eternally tethered to the domicile dictated by her
dead husband is to preserve the anachronistic and anomalous balance of
advantage of a husband over his wife. We should not allow the dead to govern
the living even if the glories of yesteryears seduce us to shout long live the
dead! The Family Code buried this gender-based discrimination against
married women and we should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the
position of Representative of the First Congressional District of Leyte. I wish,
however, to express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed,
without any present intention of removing therefrom, and that place is properly
the domicile of a person in which he has voluntarily fixed his abode, or
habitation, not for a mere special or temporary purpose, but with a present
intention of making it his permanent home (28 C.J.S. 1). It denotes a fixed
permanent residence to which when absent for business, or pleasure, or for
like reasons one intends to return, and depends on facts and circumstances,
in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA
966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law
attributes to every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom he is legally
dependent at the time of his birth. While the domicile of origin is generally the
place where one is born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile
of choice, on the other hand, is the place which the person has elected and
chosen for himself to displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile
of choice, the following requisites must concur, namely, (a) residence or bodily
presence in the new locality, (b) intention to remain there or animus manendi,
and (c) an intention to abandon the old domicile oranimus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A
third classification is domicile by operation of law which attributes to a person
a domicile independent of his own intention or actual residence, ordinarily
resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election
purposes it means domicile (Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections misapplied this concept,
of domicile which led to petitioner's disqualification by ruling that petitioner
failed to comply with the constitutionally mandated one-year residence
requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many places as conduct
disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of origin is not sufficient
to constitute abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent reason to depart
from this rule except to surmise petitioner's intent of abandoning her domicile
of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a
new domicile due to her marriage, a domicile by operation of law. The
proposition is that upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change
thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily
supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in 1954

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with then Congressman Marcos. By legal fiction she followed the domicile of
her husband. In my view, the reason for the law is for the spouses to fully and
effectively perform their marital duties and obligations to one another. 1 The
question of domicile, however, is not affected by the fact that it was the legal
or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus,
while the wife retains her marital domicile so long as the marriage subsists,
she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite absurd and unfair
situation of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.

the one-year residence requirement the date when she applied for the
cancellation of her previous registration in San Juan, Metro Manila. The fact
which private respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election from San Juan,
Metro Manila to San Jose, Tacloban City, and resided therein until August of
1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing
that both Tacloban City and Tolosa, Leyte are within the First Congressional
District of Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected. Petitioner, therefore,
has satisfactorily complied with the one-year qualification required by the 1987
Constitution.

It is my view therefore that petitioner reverted to her original domicile of

Tacloban, Leyte upon her husband's death without even signifying her
intention to that effect. It is for the private respondent to prove, not for petitioner
to disprove, that petitioner has effectively abandoned Tacloban, Leyte for
Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16),
because the presumption is strongly in favor of an original or former domicile,
as against an acquired one (28 C.J.S. 16). Private respondent unfortunately
failed to discharge this burden as the record is devoid of convincing proof that
petitioner has acquired whether voluntarily or involuntarily, a new domicile to
replace her domicile of origin.

I vote to grant the petition.

The records, on the contrary, clearly show that petitioner has complied with
the constitutional one-year residence requirement. After her exile abroad, she
returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her
residential house and other properties forbade her necessitating her transient
stay in various places in Manila (Affidavit p.6, attached as Annex I of the
Petition). In 1992, she ran for the position of president writing in her certificate
of candidacy her residence as San Juan, Metro Manila. After her loss therein,
she went back to Tacloban City, acquired her residence certificate 2 and
resided with her brother in San Jose. She resided in San Jose, Tacloban City
until August of 1994 when she was allowed by the PCGG to move and reside
in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It
was in the same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register anew as
voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the reckoning period of

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that
she was disqualified from running for Representative of her District and that,
in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the
COMELEC pronounce its decision as has been its unvarying practice in the
past, but by a startling succession of "reverse somersaults." Indicative of its
shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original
Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by
the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a
day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the
event that the results of the canvass should show that she obtained the highest
number of votes (obviously noting that petitioner had won overwhelmingly over
her opponent), but almost simultaneously reversing itself by directing that even
if she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at
bench is the interpretation to be given to the one-year residency requirement
imposed by the Constitution on aspirants for a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be synonymous with
"domicile" for election purposes, it is important to determine whether
petitioner's domicile was in the First District of Leyte and if so, whether she
had resided there for at least a period of one year. Undisputed is her domicile
of origin, Tacloban, where her parents lived at the time of her birth. Depending
on what theory one adopts, the same may have been changed when she

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married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.

Assuming it did, his death certainly released her from the obligation to live with
him at the residence fixed by him during his lifetime. What may confuse the
layman at this point is the fact that the term "domicile" may refer to "domicile
of origin," "domicile of choice," or "domicile by operation of law," which subject
we shall not belabor since it has been amply discussed by the ponente and in
the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to
the effect of the husband's death on the domicile of the widow. Some scholars
opine that the widow's domicile remains unchanged; that the deceased
husband's wishes perforce still bind the wife he has left behind. Given this
interpretation, the widow cannot possibly go far enough to sever the domiciliary
tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally
to fix the residence or domicile of the family, as laid down in the Civil
Code, 2 but to continue giving obeisance to his wishes even after the rationale
underlying the mutual duty of the spouses to live together has ceased, is to
close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her
domicile of origin upon the demise of her husband. Does the law so abhor a
vacuum that the widow has to be endowed somehow with a domicile? To
answer this question which is far from rhetorical, one will have to keep in mind
the basic principles of domicile. Everyone must have a domicile. Then one
must have only a single domicile for the same purpose at any given time. Once
established, a domicile remains until a new one is acquired, for no person lives
who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this
jurisdiction, rendered more murky by the conflicting opinions of foreign legal
authorities. This being the state of things, it is imperative as it is opportune to
illumine the darkness with the beacon light of truth, as dictated by experience
and the necessity of according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize and protect the human
rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil,
political and social rights are concerned, is a relatively recent phenomenon
that took seed only in the middle of this century. It is a historical fact that for
over three centuries, the Philippines had been colonized by Spain, a
conservative, Catholic country which transplanted to our shores the Old World

cultures, mores and attitudes and values. Through the imposition on our
government of the Spanish Civil Code in 1889, the people, both men and
women, had no choice but to accept such concepts as the husband's being
the head of the family and the wife's subordination to his authority. In such
role, his was the right to make vital decisions for the family. Many instances
come to mind, foremost being what is related to the issue before us, namely,
that "the husband shall fix the residence of the family." 3 Because he is made
responsible for the support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property, with a few
exceptions 5 and may, therefore, dispose of the conjugal partnership property
for the purposes specified under the law; 6 whereas, as a general rule, the wife
cannot bind the conjugal partnership without the husband's consent. 7 As
regards the property pertaining to the children under parental authority, the
father is the legal administrator and only in his absence may the mother
assume his powers. 8 Demeaning to the wife's dignity are certain strictures on
her personal freedoms, practically relegating her to the position of minors and
disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants,
descendants, parents-in-law, and collateral relatives within the fourth
degree. 9 With respect to her employment, the husband wields a veto power in
the case the wife exercises her profession or occupation or engages in
business, provided his income is sufficient for the family, according to its social
standing and his opposition is founded on serious and valid grounds. 10 Most
offensive, if not repulsive, to the liberal-minded is the effective prohibition upon
a widow to get married till after three hundred days following the death of her
husband, unless in the meantime, she has given birth to a child. 11 The mother
who contracts a subsequent marriage loses the parental authority over her
children, unless the deceased husband, father of the latter, has expressly
provided in his will that his widow might marry again, and has ordered that in
such case she should keep and exercise parental authority over their
children. 12 Again, an instance of a husband's overarching influence from
beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of
years evoked no protest from them until the concept of human rights and
equality between and among nations and individuals found hospitable
lodgment in the United Nations Charter of which the Philippines was one of
the original signatories. By then, the Spanish "conquistadores" had been
overthrown by the American forces at the turn of the century. The bedrock of
the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the

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fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women." (Emphasis supplied)

Development and Nation Building Act" 22 Among the rights given to married
women evidencing their capacity to act in contracts equal to that of men are:

It took over thirty years before these egalitarian doctrines bore fruit, owing
largely to the burgeoning of the feminist movement. What may be regarded as
the international bill of rights for women was implanted in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
adopted by the U.N. General Assembly which entered into force as an
international treaty on September 3, 1981. In ratifying the instrument, the
Philippines bound itself to implement its liberating spirit and letter, for its
Constitution, no less, declared that "The Philippines. . . adopts the generally
accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations." 13 One such principle embodied in the CEDAW is
granting to men and women "the same rights with regard to the law relating to
the movement of persons and the freedom to choose their residence and
domicile."14 (Emphasis supplied).

(1) Women shall have the capacity to borrow and obtain loans and execute
security and credit arrangements under the same conditions as men;

CEDAW's pro-women orientation which was not lost on Filipino women was
reflected in the 1987 Constitution of the Philippines and later, in the Family
Code, 15 both of which were speedily approved by the first lady President of
the country, Corazon C. Aquino. Notable for its emphasis on the human rights
of all individuals and its bias for equality between the sexes are the following
provisions: "The State values the dignity of every human person and
guarantees full respect for human rights" 16 and "The State recognizes the role
of women in nation-building, and shall ensure the fundamental equality before
the law of women and men." 17
A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family
Code of almost all of the unreasonable strictures on wives and the grant to
them of personal rights equal to that of their husbands. Specifically, the
husband and wife are now giventhe right jointly to fix the family
domicile; 18 concomitant to the spouses' being jointly responsible for the
support of the family is the right and duty of both spouses to manage the
household; 19 the administration and the enjoyment of the community property
shall belong to both spouses jointly; 20 the father and mother shall now jointly
exercise legal guardianship over the property of their unemancipated common
child 21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights
are concerned, Congress passed a law popularly known as "Women in

(2) Women shall have equal access to all government and private sector
programs granting agricultural credit, loans and non material resources and
shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into
insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying
for passports, secure visas and other travel documents, without need to secure
the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in
Beijing, let this Court now be the first to respond to its clarion call that
"Women's Rights are Human Rights" and that "All obstacles to women's full
participation in decision-making at all levels, including the family" should be
removed. Having been herself a Member of the Philippine Delegation to the
International Women's Year Conference in Mexico in 1975, this writer is only
too keenly aware of the unremitting struggle being waged by women the world
over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper
places under the sun.
In light of the inexorable sweep of events, local and global, legislative,
executive and judicial, according more rights to women hitherto denied them
and eliminating whatever pockets of discrimination still exist in their civil,
political and social life, can it still be insisted that widows are not at liberty to
choose their domicile upon the death of their husbands but must retain the
same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no
longer be bound by the domicile of the departed husband, if at all she was
before. Neither does she automatically revert to her domicile of origin, but
exercising free will, she may opt to reestablish her domicile of origin. In
returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of
which are located in the First District of Leyte, petitioner amply demonstrated
by overt acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up her domicile

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in the two places sufficed to meet the one-year requirement to run as

Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system
that sets up ideals and directions and render steady our strides hence. It only
looks back so as to ensure that mistakes in the past are not repeated. A
compliant transience of a constitution belittles its basic function and weakens
its goals. A constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it respect and
allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the
answer to perceived transitory needs, let alone societal attitudes, or the
Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless,
either by express statement or by necessary implication, a different intention
is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of
Article VI of the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless
he is a natural-born citizen of the Philippines and, on the day of the election,
is at least twenty-five years of age, able to read and write, and, except the
party-list representatives, 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 day of the election.
Sec. 17. 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.

The Commission on Election (the "COMELEC") is constitutionally bound to

enforce and administer "all laws and regulations relative to the conduct of
election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to
the contrary, should include its authority to pass upon the qualification and
disqualification prescribed by law ofcandidates to an elective office. Indeed,
pre-proclamation controversies are expressly placed under the COMELEC's
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional
one-year residency requirement. The issue (whether or not there is here such
compliance), to my mind, is basically a question of fact or at least inextricably
linked to such determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a number of
exceptions under the basic heading of "grave abuse of discretion," are not
reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be
a plain matter. Generally, the term "residence" has a broader connotation that
may mean permanent (domicile), official (place where one's official duties may
require him to stay) or temporary (the place where he sojourns during a
considerable length of time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual residence (see Article 50, Civil
Code). In election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is synonymous
with "domicile," which imports not only an intention to reside in a fixed place
but also personal presence in that place, coupled with conduct indicative of
such intention." "Domicile" denotes a fixed permanent residence to which
when absent for business or pleasure, or for like reasons, one intends to
return. . . . . Residence thus acquired, however, may be lost by adopting
another choice of domicile. In order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality,
(2) an intention to remain there, and (3) an intention to abandon the old
domicile. 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.

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Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends
when the jurisdiction of the Electoral Tribunal concerned begins. It signifies
that the protestee must have theretofore been duly proclaimed and has since
become a "member" of the Senate or the House of Representatives. The
question can be asked on whether or not the proclamation of a candidate is
just a ministerial function of the Commission on Elections dictated solely on
the number of votes cast in an election exercise. I believe, it is not. A ministerial
duty is an obligation the performance of which, being adequately defined, does
not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts
and conditions such as may be required by law before a proclamation is
properly done.
The Court, on its part, should, in my view at least, refrain from any undue
encroachment on the ultimate exercise of authority by the Electoral Tribunals
on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the
effect of the Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest "relating to the
election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the
applicability to this case of Section 6 of Republic Act No. 6646, in relation to
Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority. The Commission and
the courts shall give priority to cases of disqualification by reason of violation
of this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final, judgment before an
election to be disqualified, and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to
look for not so much the specific instances they ostensibly would cover as the
principle they clearly convey. Thus, I will not scoff at the argument that it should
be sound to say that votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her favor and must
accordingly be considered to be stray votes. The argument, nevertheless, is
far outweighed by the rationale of the now prevailing doctrine first enunciated
in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA
1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and,
most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was
a unanimous decision penned by Justice Kapunan and concurred in by Chief
Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide,
Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and
Bellosillo were on official leave). For easy reference, let me quote from the
first Labo decision:
Finally, there is the question of whether or not the private respondent, who
filed the quo warrantopetition, 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, (137 SCRA 740) decided in 1985. In that case, 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

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disregard as stray. In effect, the second placer won by default. That decision
was supported by eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and
Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote.
(Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
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, (136 SCRA 435)
which represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil.
238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although
one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the
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. (at pp. 2021)

Considering all the foregoing, I am constrained to vote for the dismissal of the
petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on Elections has
the power to disqualify candidates on the ground that they lack eligibility for
the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are
elected, by filing a petition forquo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in the
House of Representatives Electoral Tribunal. That the parties in this case took
part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit
their dispute to that body.
The various election laws will be searched in vain for authorized proceedings
for determining a candidate's qualifications for an office before his election.
There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral
Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized
elections (R.A. No. 7166). There are, in other words, no provisions for preproclamation contests but only election protests or quo warranto proceedings
against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they
are not concerned with a declaration of the ineligibility of a candidate. These
provisions are concerned with the incapacity (due to insanity, incompetence
or conviction of an offense) of a person either to be a candidate or to continue
as a candidate for public office. There is also a provision for the denial or
cancellation of certificates of candidacy, but it applies only to cases involving
false representations as to certain matters required by law to be stated in the
certificates.
These provisions are found in the following parts of the Omnibus Election
Code:
12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.

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The disqualifications to be a candidate herein provided shall be deemed

removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an 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 of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualifiedfrom continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the
election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and; upon motion for the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added).

7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.

The procedure hereinabove provided shall apply to petitions to deny due
course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from running
for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or more of imprisonment, within
two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the effectivity
of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC,
while entitled "For Cancellation and Disqualification," contained no allegation
that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her
disqualification on the ground that "on the basis of her Voter Registration
Record and Certificate of Candidacy, [she] is disqualified from running for the
position of Representative, considering that on election day, May 8, 1995, [she]
would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and
corrected certificate of candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the House of Representatives
for the First Legislative District of Leyte" and not because of any finding that
she had made false representations as to material matters in her certificate of
candidacy.

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Montejo's petition before the COMELEC was therefore not a petition for
cancellation of certificate of candidacy under 78 of the Omnibus Election
Code, but essentially a petition to declare private respondent ineligible. It is
important to note this, because, as will presently be explained, proceedings
under 78 have for their purpose to disqualify a person from being
a candidate, whereas quo warranto proceedings have for their purpose to
disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is
vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the
cancellation of certificates of candidacy, the allegations were that the
respondent candidates had made false representations in their certificates of
candidacy with regard to their citizenship, 1 age, 2 or residence. 3 But in the
generality of cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election
protests 4 or quo warranto proceedings 5 filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before electionthe 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. 6
Second is the fact that the determination of a candidate's 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 of 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. 7 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 or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an
elected official's qualifications after the results of elections are proclaimed,
while being conspicuously silent about a pre-proclamation remedy based on
the same ground, the Omnibus Election Code, or OEC, by its silence
underscores the policy of not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
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 rulemaking power under Art. IX, A, 6 of the Constitution,
cannot do. 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."

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"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 disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is
guilty of prohibited election practices or offenses, like other pre-proclamation
remedies, are aimed at the detestable practice of "grabbing the proclamation
and prolonging the election protest," 8 through the use of "manufactured"
election returns or resort to other trickery for the purpose of altering the results
of the election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the contrary, it is the
candidate against whom a proceeding for disqualification is brought who could
be prejudiced because he could be prevented from assuming office even
though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought
in an election protest or action forquo warranto filed pursuant to 253 of the
Omnibus Election Code within 10 days after his proclamation. With respect to
elective local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed either with the
COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided
in Art. IX, C, 2(2) of the Constitution. In the case of the President and Vice
President, the petition must be filed with the Presidential Electoral Tribunal
(Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of
Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for
not allowing before the election the filing of disqualification proceedings based
on alleged ineligibility in the case of candidates for President, Vice President,

Senators and members of the House of Representatives, because of the same

policy prohibiting the filing of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction
over SPA No. 95-009; that its proceedings in that case, including its questioned
orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos
for the office of Representative of the First District of Leyte may only be
inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the
Commission on Elections in SPA No. 95-009, including its questioned orders
doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring
petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation
as Representative of the First District of Leyte suspended. To the extent that
Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for the office, it
should considered void.
The provincial board of canvassers should now proceed with the proclamation
of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written
ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must
begin and end with the provision itself. The controversy should not be blurred
by what, to me, are academic disquisitions. In this particular controversy, the
Constitutional provision on point states that "no person shall be a member
of the House of Representatives unless he is a natural-born citizen of the
Philippines, and on the day of the election, is at least twenty-five (25) years of
age, able to read and write, and except the party list representatives, 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 day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous with domicile. This
argument has been validated by no less than the Court in numerous
cases 1 where significantly the factual circumstances clearly and convincingly
proved that a person does not effectively lose his domicile of origin if

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the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different
modalities within which the phrase "a resident thereof (meaning, the legislative
district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which
case a person only has to prove that he has been domiciled in a permanent
location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his
domicile in which case he would have the luxury of district shopping, provided
of course, he satisfies the one-year residence period in the district as the
minimum period for eligibility to the position of congressional representative
for the district.
In either case, one would not be constitutionally disqualified for abandoning
his residence in order to return to his domicile of origin, or better still, domicile
of choice; neither would one be disqualified for abandoning altogether his
domicile in favor of his residence in the district where he desires to be a
candidate.
The most extreme circumstance would be a situation wherein a person
maintains several residences in different districts. Since his domicile of origin
continues as an option as long as there is no effective abandonment (animus
non revertendi), he can practically choose the district most advantageous for
him.
All these theoretical scenarios, however, are tempered by the unambiguous
limitation that "for a period of not less than one year immediately preceding the
day of the election", he must be a resident in the district where he desires to
be elected.
To my mind, the one year residence period is crucial regardless of whether or
not the term "residence" is to be synonymous with "domicile." In other words,
the candidate's intent and actual presence in one district must in allsituations
satisfy the length of time prescribed by the fundamental law. And this, because
of a definite Constitutional purpose. He must be familiar with the environment
and problems of a district he intends to represent in Congress and the oneyear residence in said district would be the minimum period to acquire such
familiarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set
out in the now assailed decision of the Comelec 2nd Division dated 24 April
1995 (as affirmed by the Comelec en banc)
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 1948 when she graduated from high
school. She pursued her college studies in St. Paul's College, now Divine
Word University of Tacloban, where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese High 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 Marcos when he was still a congressman of Ilocos
Norte. She lived with him in Batac, 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.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of Metro
Manila. She claimed that in February 1986, 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. On August 24, 1994,
respondent filed a letter with the election officer of San Juan, Metro Manila,
requesting for cancellation of her registration in the Permanent List of Voters
in Precinct No. 157 of San Juan, Metro Manila, in order that she may be reregistered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer).
On August 31, 1994, respondent filed her Sworn Application for Cancellation
of Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends
to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of
Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form
No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that
she has resided in the municipality of Tolosa for a period of 6 months (Annex
A, Petition).

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On March 8, 1995, respondent filed with the Office of the Provincial Election
Supervisor, Leyte, a Certificate of Candidacy for the position of Representative
of the First District of Leyte wherein she also alleged that she has been a
resident in the constituency where she seeks to be elected for a period of 7
months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED
IMMEDIATELY
PRECEDING
ELECTION:
________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith and
allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation imposed
by my oath is assumed voluntarily, without mental reservation or purpose of
evasion; and That the facts stated herein are true to the best of my knowledge.
(Sgd.)
(Signature of Candidate) 2

Imelda

Romualdez-Marcos

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains

the decisive component or seed of her disqualification. It is contained in her
answer under oath of "seven months" to the query of "residence in the
constituency wherein I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of
discretion in holding that petitioner is disqualified from the position of
representative for the 1st congressional district of Leyte in the elections of 8
May 1995, for failure to meet the "not less than one-year residence in the
constituency (1st district, Leyte) immediately preceding the day of election (8
May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first
district of Leyte, the next important issue to resolve is whether or not the
Comelec can order the Board of Canvassers to determine and proclaim the

winner out of the remaining qualified candidates for representative in said

district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the
rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil.
238 that:
. . . . 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.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral
System and for other purposes) (84 O.G. 905, 22 February 1988) it is provided
that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may, during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and
unambiguous meaning of the provision quoted above. As the law now stands,
the legislative policy does not limit its concern with the effect of a final
judgement of disqualification only before the election, but even during or after

133

the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated
the jurisdiction of the Court or Commission on Election to continue hearing the
petition for disqualification in case a candidate is voted for and receives the
highest number of votes, if for any reason, he is not declared by final judgment
before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend
proclamation (when evidence of his guilt is strong) is also explicit under the
law. What happens then when after the elections are over, one is declared
disqualified? Then, votes cast for him "shall not be counted" and in legal
contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer
the winner simply because a "winning candidate is disqualified," but that the
law considers him as the candidate who had obtained the highest number of
votes as a result of the votes cast for the disqualified candidate not being
counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no
reason why this Court should not re-examine and consequently abandon the
doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The
will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the
Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial
Board of Canvassers of Leyte to proclaim the candidate receiving the highest
number of votes, from among the qualified candidates, as the duly elected
representative of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot
arrive conjointly at the same conclusion drawn therefrom Hence, this dissent
which assuredly is not formulated "on the basis of the personality of a petitioner
in a case."
I go along with the majority in their narration of antecedent facts, insofar as the
same are pertinent to this case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the

present Tacloban City, she being a legitimate daughter of parents who appear
to have taken up permanent residence therein. She also went to school there
and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled
in Batac, Ilocos Norte, by operation of law she acquired a new domicile in that
place in 1954.
3. In the successive years and during the events that happened thereafter, her
husband having been elected as a Senator and then as President, she lived
with him and their family in San Juan, Rizal and then in Malacanang Palace in
San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in Batac,
Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these
merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty
positions successively, ever abandoned his domicile of origin in Batac, Ilocos
Norte where he maintained his residence and invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn
of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to
the Philippines in 1991 and resided in different places which she claimed to
have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her
certificate of candidacy she indicated that she was then a registered voter and
resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration
in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila
in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa,
Leyte." On August 31, 1994, she followed this up with her Sworn Application
for Cancellation of Voter's Previous Registration wherein she stated that she
was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro
Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A
of Olot, Tolosa, Leyte, for which purpose she filed with the therein Board of
Election Inspectors a voter's registration record form alleging that she had
resided in that municipality for six months.

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10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she alleged that
she had been a resident for "Seven Months" of the constituency where she
sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of
Candidacy" wherein her answer in the original certificate of candidacy to item
"8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or
replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy,
petitioner had complied with the residency requirement of one year as
mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation
on the difference between residence and domicile. We have had enough of
that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile.
That is so understood in our jurisprudence and in American Law, in
contradistinction to the concept of residence for purposes of civil, commercial
and procedural laws whenever an issue thereon is relevant or controlling.
Consequently, since in the present case the question of petitioner's residence
is integrated in and inseparable from her domicile, I am addressing the issue
from the standpoint of the concept of the latter term, specifically its
permutations into the domicile of origin, domicile of choice and domicile by
operation of law, as understood in American law from which for this case we
have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or
what is termed the "domicile of origin," constitutes the domicile of an infant
until abandoned, or until the acquisition of a new domicile in a different
place. 1 In the instant case, we may grant that petitioner's domicile of
origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is,
domicile by birth, domicile by choice, and domicile by operation of law. The
first is the common case of the place of birth or domicilium originis, the second
is that which is voluntarily acquired by a party or domicilium propio motu; the
last which is consequential, as that of a wife arising from marriage, 3 is
sometimes called domicilium necesarium. There is no debate that the domicile

of origin can be lost or replaced by a domicile of choice or a domicile by

operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by
operation of law, not only international or American but of our own
enactment, 4 she acquired her husband's domicile of origin in Batac, Ilocos
Norte and correspondingly lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San
Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now San Juan,
Metro Manila do not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having resided in those places
was by reason of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her return to the
Philippines were, as she claimed, against her will or only for transient purposes
which could not have invested them with the status of domiciles of choice. 5
After petitioner's return to the Philippines in 1991 and up to the present
imbroglio over her requisite residency in Tacloban City or Olot, Tolosa, Leyte,
there is no showing that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of her legal domicile in
Batac, Ilocos Norte. On that score, we note the majority's own
submission 6 that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a
new one, and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition
of a domicile of choice apply whether what is sought to be changed or
substituted is a domicile of origin (domicilium originis) or a domicile by
operation of law (domicilium necesarium). Since petitioner had lost
her domicilium originis which had been replaced by her domicilium
necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which,
if at all, can be the object of legal change under the contingencies of the case
at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion
of Commissioner Regalado E. Maambong in SPA 95-009 of the Commission
on Elections, 7 and advances this novel proposition.
It may be said 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 (sic,

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1954). By operation of law (domicilium necesarium), her legal domicile at the

time of her marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of origin.
Because of her husband's subsequent death and through the operation of the
provisions of the New Family Code already in force at the time, however, her
legal domicile automatically reverted to her domicile of origin. . . . (Emphasis
supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making
a qualification that she did not intend to abandon her domicile of origin. I find
this bewildering since, in this situation, it is the law that declares where
petitioner's domicile is at any given time, and not her self-serving or putative
intent to hold on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a time, 8 the
majority would be suggesting that petitioner retained Tacloban City as (for lack
of a term in law since it does not exist therein) the equivalent of what is fancied
as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered
likewise in accordance with law. However, we are here being titillated with the
possibility of an automatic reversion to or reacquisition of a domicile of origin
after the termination of the cause for its loss by operation of law. The majority
agrees that since petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am impressed
by the ingeniousness of this theory which proves that, indeed, necessity is the
mother of inventions. Regretfully, I find some difficulty in accepting either the
logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he
abandons that chosen domicile, he does not per se recover his original
domicile unless, by subsequent acts legally indicative thereof, he evinces his
intent and desire to establish the same as his new domicile, which is precisely
what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically
restore his domicile of origin, not only because there is no legal authority
therefor but because it would be absurd Pursued to its logical consequence,
that theory of ipso jure reversion would rule out the fact that said party could
already very well have obtained another domicile, either of choice or by

operation of law, other than his domicile of origin. Significantly and obviously
for this reason, the Family Code, which the majority inexplicably invokes,
advisedly does not regulate this contingency since it would impinge on one's
freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile
of choice (unless we assume that she entered into the marital state against
her will) but, on top of that, such abandonment was further affirmed through
her acquisition of a new domicile by operation of law. In fact, this is even a
case of both voluntary andlegal abandonment of a domicile of origin. With
much more reason, therefore, should we reject the proposition that with the
termination of her marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954. Otherwise, this
would be tantamount to saying that during the period of marital coverture, she
was simultaneously in possession and enjoyment of a domicile of origin which
was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's
death the wife has the right to elect her own domicile, 9 she nevertheless
retains the last domicile of her deceased husband until she makes an actual
change.10 In the absence of affirmative evidence, to the contrary, the
presumption is that a wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the majority's theory
based on Articles 68 and 69 of the Family Code. All that is of any relevance
therein is that under this new code, the right and power to fix the family domicile
is now shared by the spouses. I cannot perceive how that joint right, which in
the first place was never exercised by the spouses, could affect the domicile
fixed by the law for petitioner in 1954 and, for her husband, long prior thereto.
It is true that a wife now has the coordinate power to determine
the conjugal or family domicile, but that has no bearing on this case. With the
death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was
and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of
her having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and
expanded participation of women in the affairs of the nation, with equal rights
and recognition by Constitution and statutory conferment. However, I have
searched in vain for a specific law or judicial pronouncement which either

136

expressly or by necessary implication supports the majority's desired theory of

automatic reacquisition of or reversion to the domicilium originis of petitioner.
Definitely, as between the settled and desirable legal norms that should
govern this issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the eloquence of the
well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954
and not having automatically reacquired any domicile therein, she cannot
legally claim that her residency in the political constituency of which it is a part
continued since her birth up to the present. Respondent commission was,
therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that
constituency for only seven months prior to the election. These considerations
render it unnecessary to further pass upon the procedural issues raised by
petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of
merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice
Santiago M. Kapunan, more particularly on the issue of the petitioner's
qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions,
orders, or rulings of the COMELEC may be brought to this Court only by the
special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs.
COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has
acted without or in excess of jurisdiction or with grave abuse of discretion
(Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the only issue left is whether
it acted with grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995
of the COMELEC Second Division and the En Banc resolution of 7 May 1995
discloses total absence of abuse of discretion, much less grave abuse thereof.
The resolution of the Second Division dispassionately and objectively
discussed in minute details the facts which established beyond cavil that

herein petitioner was disqualified as a candidate on the ground of lack of

residence in the First Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for
lack of proof that the petitioner has abandoned Tolosa as her domicile of origin,
which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC,
either by admission or by documentary evidence, overwhelming proof of the
loss or abandonment of her domicile of origin, which is Tacloban City and not
Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin,
that became her second domicile of choice, where her stay, unfortunately, was
for only seven months before the day of the election. She was then disqualified
to be a candidate for the position of Representative of the First Congressional
District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either
Tacloban City or Tolosa, Leyte. Nevertheless, she lost it by operation of law
sometime in May 1954 upon her marriage to the then Congressman (later,
President) Ferdinand E. Marcos. A domicile by operation of law is that domicile
which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife
arising from marriage (28 C.J.S. Domicile 7, 11). Under the governing law
then, Article 110 of the Civil Code, her new domicile or her domicile of choice
was the domicile of her husband, which was Batac, Ilocos Norte. Said Article
reads as follows:
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.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a
predominant right because he is empowered by law to fix the family residence.
This right even predominates over some rights recognized by law in the wife.
For instance, under article 117 the wife may engage in business or practice a
profession or occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it impossible
for the wife to continue in business or in her profession. For justifiable reasons,
however, the wife may be exempted from living in the residence chosen by the

137

husband. The husband cannot validly allege desertion by the wife who refuses
to follow him to a new place of residence, when it appears that they have lived
for years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and Jurisprudence
on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and,
by operation of law, acquires that of her husband, no matter where the wife
actually lives or what she believes or intends. Her domicile is fixed in the sense
that it is declared to be the same as his, and subject to certain limitations, he
can change her domicile by changing his own (25 Am Jur 2d Domicile 48,
37).
It must, however, be pointed out that under Article 69 of the Family Code, the
fixing of the family domicile is no longer the sole prerogative of the husband,
but is now a joint decision of the spouses, and in case of disagreement the
court shall decide. The said article uses the term "family domicile," and not
family residence, as "the spouses may have multiple residences, and the wife
may elect to remain in one of such residences, which may destroy the duty of
the spouses to live together and its corresponding benefits" (ALICIA V.
SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the
death of her husband, which the majority opinion adopts to overcome the legal
effect of the petitioner's marriage on her domicile, is unsupported by law and
by jurisprudence. The settled doctrine is that after the husband's death the wife
has a right to elect her own domicile, but she retains the last domicile of her
husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or,
on the death of the husband, the power of the wife to acquire her own domicile
is revived, but until she exercises the power her domicile remains that of the
husband at the time of his death (25 Am Jur 2d Domicile 62, 45). Note that
what is revived is not her domicile of origin but her power to acquire her own
domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that
of her husband at the time of his death which was Batac, Ilocos Norte, since
their residences in San Juan, Metro Manila, and San Miguel, Manila, were their
residences for convenience to enable her husband to effectively perform his
official duties. Their residence in San Juan was a conjugal home, and it was
there to which she returned in 1991 when she was already a widow. In her
sworn certificate of candidacy for the Office of the President in the
synchronized elections of May 1992, she indicated therein that she was a

resident of San Juan, Metro Manila. She also voted in the said elections in that
place.
On the basis of her evidence, it was only on 24 August 1994 when she
exercised her right as a widow to acquire her own domicile in Tolosa, Leyte,
through her sworn statement requesting the Election Officer of San Juan,
Metro Manila, to cancel her registration in the permanent list of voters in
Precinct 157 thereat and praying that she be "re-registered or transferred to
Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence"
(photocopy of Exhibit "B," attached as Annex "2" of private respondent
Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March
1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E,"
attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8
March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she
solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City
or Tolosa, Leyte? In the affidavit attached to her Answer to the petition for
disqualification (Annex "I" of Petition), she declared under oath that her
"domicile or residence is Tacloban City." If she did intend to return to such
domicile or residence of origin why did she inform the Election Officer of San
Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her residence is
Olot, Tolosa, Leyte? While this uncertainty is not important insofar as
residence in the congressional district is concerned, it nevertheless proves that
forty-one years had already lapsed since she had lost or abandoned her
domicile of origin by virtue of marriage and that such length of time diminished
her power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon
vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases which established
the principle that absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in business in other
states does not constitute loss of such residence or domicile. So is the reliance
on Section 117 of the Omnibus Election Code which provides that transfer of
residence to any other place by reason of one's "occupation; profession;
employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or detention in
government institutions in accordance with law" is not deemed as loss of

138

original residence. Those cases and legal provision do not include marriage of
a woman. The reason for the exclusion is, of course, Article 110 of the Civil
Code. If it were the intention of this Court or of the legislature to consider the
marriage of a woman as a circumstance which would not operate as an
abandonment of domicile (of origin or of choice), then such cases and legal
provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the
petitioner in her affidavit (Annex "A" of her Answer in COMELEC SPA No. 95009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban
City," and that she "never intended to abandon this domicile or residence of
origin to which [she] always intended to return whenever absent." Such a claim
of intention cannot prevail over the effect of Article 110 of the Civil Code.
Besides, the facts and circumstances or the vicissitudes of the petitioner's life
after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et
facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile,
[1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she
"merely committed an honest mistake" in writing down the word "seven" in the
space provided for the residency qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the light of the foregoing
disquisitions, would be all sound and fury signifying nothing. To me, she did
not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who
asserts a fact or the affirmative of an issue has the burden of proving it
(Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted
marriage to the then Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her domicile to that of her
husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with
Article 110 of the Civil Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived power to acquire her own
domicile, the burden is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Footnotes

1 Jarrolt v. Mabberly, 103 U.S. 580 (1881).

2 CONST, art. VI, states:
Sec. 6. No person shall be a member of the House of Representatives unless
he is a natural-born citizen of the Philippines and, on the day of the election,
is at least twenty-five years of age, able to read and write, and except the partylist representatives, 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 day of the election.
See, Jarrolt v. Mabberly, supra, note 1.
3 Gallego vs. Vera, 73 Phil. 453 (1941).
4 Rollo, p. 114, Annex "D".
5 Rollo, p. 110, Annex "D".
6 Rollo, p. 113.
7 Rollo, p. 111.
8 Rollo, p. 115, Annex "E".
9 Signed by Virgilo S. Oledan, Provincial Election Supervisor IV, Leyte; Rollo,
p. 116, Annex "F".
10 Rollo, p. 117, Annex "G". Petitioner explained the circumstances
surrounding the filling up of the original certificate thus:
1. On March 8, 1995, I filed my certificate of candidacy for Member of the
House of Representatives (Congresswoman) of the First Legislative District of
the province of Leyte, which was drafted by Mr. Filomeno A. Zeta.
2. I learned lately that Congressman Cirilo Montejo wants to disqualify me as
I allegedly lack residence in the constituency because of the entry of the word
"SEVEN" in Item No. 8 of my certificate of candidacy.
3. I read my certificate of candidacy before signing it and thought of the word
"RESIDENCE" to mean actual or physical residence, and the word "SEVEN"
merely reflected my actual and physical residence in Barangay Olot, Tolosa,
Leyte.
3.1. The word "SEVEN" was placed on my certificate of candidacy to indicate
that at lease one (1) month had passed from my registration as voter of Tolosa,

139

Leyte, on January 28, 1995, when I wrote "06" months under "PERIOD OF
RESIDENCE" as my actual or physical residence in the town.
4. I thought then that the sense in Item No. 10 of my certificate of candidacy
stating "THAT I AM eligible for said Office" was sufficient to affirm that I
possess all the qualifications, including my residence, for Member of the
House of Representatives for which I am aspiring in the May 8, 1995 elections.
5. The fact, however, is that my domicile or residence of origin is Tacloban
City, a component city of the First Legislative District of Leyte I never intended
to abandon this domicile or residence of origin to which I always intended to
return whenever absent; indeed in 1992, I returned to Tacloban City to live and
stay there. On November 5, 1992; I bought my Residence Certificate No.
15226186L there, which is made an integral part hereof as Annex "I" (Annex
"2" hereof).
11 Id., at p. 120. See also, Rollo, p. 130-133, Annex "I", petitioner's Affidavit
explaining her residence:
13. I established my domicile, however in Tacloban, Leyte (Tacloban City in
1938, when was little over eight (8) years old. Shortly after my mother died on
April 7, 1938, my widowed father, Vicente Orestes Romualdez, brought me
and my brothers. . .and my sisters to Tacloban, Leyte (now Tacloban City) his
hometown.
xxx xxx xxx
18. I have always considered Tacloban City as my permanent residence or
residence of origin have not abandoned and have never intended to abandon
my permanent residence or residence of origin there. To it I always intend to
return whenever absent.

23. My registration as voter in Batac, Ilocos Norte; San Juan, Rizal (now San
Juan, Metro Manila); and San Miguel, Manila, was for convenience because I
had to live with my husband to serve him when he was congressman, Senator
and President of the Republic of the Philippines. During those years however,
I never intended nor desired to abandon my domicile or residence of origin in
Tacloban City, which I established since I was a child.
xxx xxx xxx
33. Throughout the Marcos Presidency, I spent most of my birthday
anniversaries and attended the Sto. Nini Fiesta in Tacloban City. I regularly
visited my domicile or residence of origin in Leyte and even held important
functions and entertained guests and foreign dignitaries there.
34. After President Ferdinand E. Marcos and I, together with our children and
innocent grandchildren were abducted and kidnapped to Honolulu, Hawaii, in
February, 1986, my Leyte properties were sequestered by the PCGG, and
were destroyed and cannibalized.
xxx xxx xxx
38. Upon my return to the country, I wanted to immediately live and reside in
Tacloban City or in Olot, Tolosa, Leyte even if my residences there were not
livable as they had been destroyed and cannibalized. The PCGG, however,
did not permit and allow me.
xxx xxx xxx
40. After the 1992 Presidential Elections, I lived and resided in the residence
of my brother in San Jose, Tacloban City, and pursued my negotiations with
PCGG to recover my sequestered residences in Tacloban City and Barangay
Olot, Tolosa, Leyte.

19. In 1952, I went to Manila to work with my cousin, the late speaker
Daniel Z. Romualdez in his office in the House of Representatives.

12 Rollo, p. 122.

20. In May, 1954, I married President Ferdinand E. Marcos when he was still
the congressman of Ilocos, Norte.

13 Commissioners Manolo B. Gorospe and Teresita Dy-Liaco Flores formed

the majority opinion. Commissioner Remedies A. Salazar-Fernando
dissented.

21. As a dutiful wife who loved him deeply, I lived with him in Batac, Ilocos
Norte and registered as a voter there.

14 Rollo, p. 64.

22. In 1965, my husband was elected President of the Republic of the

Philippines. Together, we lived in Malacaang Palace and I registered as a
voter in San Miguel, Manila.

15 Rollo, p. 57-64.
16 Petitioner filed a "Motion to Recall Resolution Promulgated on April 24,
1995 and to Dismiss the Petition Because of Lapse of Jurisdiction;

140

Alternatively, Motion for Reconsideration." The Commission's May 7, 1995

Resolution treated the same simply as a Motion for Reconsideration.
17 Commissioners Regalado E. Maambong, Remedios A. Salazar-Fernando
and Julio F. Desamito dissented. All filed separate dissenting opinions. In
disqualifying petitioner, the majority held:
As it stands now, only the Certificate of Candidacy respondent filed on March
8, 1995, stands, and on the basis of the entries therein, she is disqualified to
run for failure to meet the constitutional requirement of one (1) year of
residence in the place where she wanted to be elected.
18 Rollo, p. 78, Annex "B".
19 Rollo, Annex "D".
20 19 SCRA 966 (1967). See also, Corre v. Corre, 100 Phil. 221 (1956).

35 B.P. 881, sec. 117 states:

xxx xxx xxx
Any person who transfers residence to another city, municipality or country
solely by reason of his occupation; profession; employment in private or public
service; educational activities; work in military or naval reservations; service in
the army, navy or air force; the constabulary or national police force; or
confinement or detention in government institutions in accordance with law
shall not be deemed to have lost his original residence.
36 Rollo, p. 38.
37 18 Am Jur 219-220.
38 20 Am Jur 71.

21 Id. at 969.

39 TOLENTINO 1 COMMENTARIES & JURISPRUDENCE ON THE CIVIL

CODE, 220 (1987).

22 Uytengsu v. Republic, 95 Phil. 890 (1954).

40 Id.

23 Id.

41 TOLENTINO, 1 COMMENTARIES AND JURISPRUDENCE ON CIVIL

CODE, 220 (1987).

24 52 Phil. 645 (1928).

25 Citing People v. Bender 144 N.Y.S., 145.
26 61 Phil. 36 (1934).
27 96 Phil. 294 (1954).
28 Id, see also Ujano v. Republic, 17 SCRA 147 (1966); Nuval v. Guray, supra
note 22.
29 II RECORD OF THE 1987 CONSTITUTIONAL CONVENTION, 110 (July
22, 1986).
30 Id.
31 199 SCRA 692 (1991).
32 Id, at 714.
33 61 Phil. 36 (1934).
34 96 Phil. 294, 299-300 (1954).

42 Under modern laws, it is clear that many exceptions to the rule that the
domicile of the wife is determined by that of her husband must obtain.
Accordingly, the wife may acquire another and separate domicile from that of
her husband where the theoretical unity of the husband and wife is dissolved,
as it is by the institution of divorce proceedings; or where the husband has
given cause for divorce; or where there is a separation of the parties by
agreement, or a permanent separation due to desertion of the wife by the
husband or attributable to cruel treatment on the part of the husband; or where
there has been a forfeiture by the wife of the benefit of the husband's domicile.
9 R.C.L., 545, cited in De La Vina, supra. If the law allows the wife to
automatically revert to her original domicile or acquire a new domicile under
these situations, all the more should it sanction a reversion or the acquisition
of a new domicile by the wife upon the death of her husband.
43 41 Phi. 13 (1920).
44 The rule that the wife automatically acquires or follows her husband's
domicile is not an absolute one. A specific situation recognized in Spanish
jurisprudence involves the one in which husband acquiesces (1 Manresa 223)
or gives his tacit consent (Scaevola, Civil Code; 354.)

141

45 42 Phil. 54 (1921).
46 Justice Alicia Sempio-Diy recognizes the same Civil Code distinction.
However, taking another approach, she writes:
(6) The above Article (Article 69, FC) uses the term "family domicile" instead
of family residence because the spouses may have multiple residences, and
the wife may elect to remain in one of such residences, which may destroy the
duty of the spouses to live together and its corresponding benefits. SEMPIODIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 102
(1988).
47 Rollo, pp. 132-133.
48 The provision reads: Section 78. Petition to deny due course or to cancel a
certificate of candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of filing of the certificate of candidacy and shall
be decided after due notice and hearing, not later than fifteen days before the
election.
49 Marcelino vs. Cruz, 121 SCRA 51 (1983).
50 American Tupe Founders Co. v. Justice's Court, 133 Cal. 819, 65 Pac. 742;
Heillen v. Phillipps, 88 Cal. 557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App.
39; State v. Davis, 194 Mo. 585.
51 Supra, note 39, citing Huffines v. Gold 154 Tenn. 583, 588; 288 S.W. 353,
354.
52 Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.
Sec. 7 Petition to Deny Due Course or to Cancel a Certificate Candidacy.
The procedure hereinabove provided shall apply to petitions to deny due

course to or cancel a certificate of candidacy as provided in Section 78 of

Batas Pambansa Blg. 881.
53 CONST., art. VI, sec. 11 states:
The Senate and the House of Representatives shall have an Electoral Tribunal
which shall be the sole judge of all questions relating to the election, returns,
and qualifications of their respective Members. . . .
PUNO, J., concurring:
1 Aristotle, Ethica Nichomachea, bk., v. 3, 1131 (a) (W. Ross translation, 1925
ed).
2 It provides: "No person shall be a member of the House of Representatives
unless he is a natural born citizen of the Philippines and on the day of the
election, is at least twenty-five years of age, able to read and write, and except
the party list representatives, 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 day of the election." (Emphasis supplied)
3 There are two (2) other instances when a married woman may have a
domicile different from the husband: (1) if they are legally separated pursuant
to par. 1, Art. 106 of the Civil Code, and (2) if the husband forcibly ejects the
wife from the conjugal home to have illicit relations with another. (De la Via v.
Villareal and Geopano, 41 Phil. 13 [1920]).
4 Op cit.
5 Id., at pp. 16-17.
6 Id., at p. 20, citing 1 Manresa 223.
7 25 AM JUR 2nd S. 48, p. 37.
8 28 CJS on Domicile, S. 12, 27; 25 AM JUR 2nd on Domicile S. 62, 46.
9 28 CJS, S. 12, p. 24.
10 Restatement of the Law, 2d, Conflict of Laws 2d., S. 21, p. 84.
11 Ibid.
12 83 U.S. 442; 21 Law Ed. 442; S.C. 16 Wall 130.
13 Supra.

142

14 Supra.
15 In re Green's Estate, 191 N.Y.S. 757, 117 Misc. 800, 165 N.Y.S. 1063, 99
Misc. 582.

adoption by foreigners; and (7) to bring our law on paternity and filiation in step
with or abreast of the latest scientific discoveries." (Emphasis supplied)
23 Article 96, Family Code.

16 Clark et al. v. Baker et al., 196 SE 750, 186 Ga 65.

24 Article 225, Family Code.

17 Lefcourt, Women and The Law, 1990 ed.

25 Article 70, Family Code.

18 404 US 71.

26 Article 71, Family Code.

19 28 CJS S. 12, p. 25 citing Shute v. Sargent, 36 A 282, 67 N.H. 305.

27 Article 73, Family Code.

20 Op cit., p. 84.

28 Op cit., Handbook on the Family Code of the Philippines, pp. 98-99.

21 Women's Status in Philippine Society, UP Law Center, 1979, pp. 4-6.

29 As cited in Diy, Handbook on the Family Code of the Philippines, pp. 184185.

22 In submitting the draft of the Family Code to President Corazon Aquino, the
Civil Code Revision Committee stated:
Close to forty years of experience under the Civil Code adopted in 1949 and
changes and developments in all aspects of Filipino Life since then have
revealed the unsuitability of certain provisions of that Code, implanted from
foreign sources, to Philippine culture; the unfairness, unjustness, and gaps or
inadequacies of others; and the need to attune them to contemporary
developments and trends.
In particular to cite only a few instances (1) the property regime of
conjugal partnership of gains is not in accord with Filipino custom, especially
in the rural areas, which is more congenial to absolute community of property;
(2) there have considerably been more grounds for annulment of marriage by
the Church than those provided by the Code, thus giving rise to the absurd
situation of several marriages already annulled under Canon Law but still
considered subsisting under the Civil Law and making it necessary to make
the grounds for annulment under both laws to coincide; (3) unequal treatment
of husband and wife as to rights and responsibilities, which necessitates a
response to the long-standing clamor for equality between men and women
now mandated as a policy to be implemented under the New Constitution; (4)
the inadequacy of the safeguards for strengthening marriage and the family as
basic social institutions recognized as such by the New Constitution; (5) recent
developments have shown the absurdity of limiting the grounds for legal
separation to the antiquated two grounds provided under the Civil Code; (6)
the need for additional safeguards to protect our children in the matter of

30 Section 1, Article III of the Constitution provides: "No person shall be

deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws."
31 Exhibit "E"; see also Exhibit "B" in SPA No. 95-001.
32 Exhibit "A" in SPA No. 95-009.
33 Exhibit "2" in SPA No. 95-009.
34 2 SCRA 957, 960 (1961); See Canceran v. COMELEC, 107 Phil. 607
(1960); Gabaldon v. COMELEC, 99 Phil. 898 (1956).
35 Section 26, Article II of the Constitution also provides: "The State shall
guarantee equal access to opportunities for public service . . . ."
36 Annex "G," Petition.
37 Petition, Annex "B-1" pp. 6-7.
38 73 Phil. 453, 459 (1951).
FRANCISCO, J., concurring:
1 See Articles 68-73 of E.O. 209, as amended, otherwise known as The Family
Code of the Philippines.
2 Residence Certificate No. 15226186L, dated Nov. 5, 1992.
3 PCGG Chairman Gunigundo's letter addressed to Col. Kempis.

143

ROMERO, J., separate opinion:

20 Art. 96, Family Code.

1 Art. VI, Sec. 6, Const.: "No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines and, on
the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district
in which he shall be elected, and a resident thereof for a period not less than
one year immediately preceding the day of the election."

21 Art. 225, Family Code.

2 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.

1 Labo, Jr. v. COMELEC, 211 SCRA 297 (1992) (for mayor).

3 Art. 110, Civil Code.

4 Art. 111, Civil Code.
5 Art. 112, Civil Code.

22 Republic Act No. 7192 approved February 12, 1992.

23 Ibid., Sec. 5.
MENDOZA, J., separate opinion:

2 Loong v. COMELEC, 216 SCRA 760 (1992) (for regional vice governor).
3 Abella v. Larrazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA
253 (1991) (for provincial governor).
4 Co. v. HRET, 199 SCRA 692 (1991) (election protest against a
Congressman).

10 Art. 117, Civil Code.

5 Faypon v. Quirino, 96 Phil. 294 (1954) (quo warranto against a governor);

Gallego v. Verra, 73 Phil. 453 (1941) (quo warranto against a mayor); Larena
v. Teves, 61 Phil. 36 (1934) (quo warranto against a provincial board member);
Tanseco v. Arteche, 57 Phil. 227 (1932) (quo warranto against a governor):
Yra v. Abao, 52 Phil. 380 (1928) (quo warranto against a municipal
president); Vivero v. Murillo, 52 Phil. 694 (1929) (quo warranto against a
municipal president). Cf. Aznar v. COMELEC, 185 SCRA 703 (1990) (quo
warranto although prematurely filed, against a governor-elect).

11 Art. 84, Civil Code.

6 R.A. No. 6646, 6; Labo, Jr. v. COMELEC, supra note 1.

12 Art. 328, Civil Code.

7 OEC, 76.

13 Art. II, Sec. 2, Const.

8 Lagumbay v. COMELEC, 16 SCRA 175 (1966).

14 Part IV, Art. 15, Paragraph 4, CEDAW.

PADILLA, J., dissenting:

15 Executive Order No. 209, July 6, 1987, as amended by Executive Order

No. 227, July 17,1987, which took effect on August 3, 1988.

1 Nuval vs. Guray, G.R. No. 30241, December 29, 1928; Larena vs. Teves,
G.R.
No. 42439, December 10, 1934; Gallego vs. Verra, G.R. No. 48641, November
24, 1941; De los Reyes vs. Solidum, G.R. No. 42798. August 31, 1935;
but see Romualdez vs. RTC, Br. 7 Tacloban City, where a sudden departure
from the country was not deemed "voluntary" so as to constitute abandonment
of domicile both in fact and in law.

6 Art. 171, Civil Code.

7 Art. 172, Civil Code.
8 Art. 320, Civil Code.
9 Art. 114, Civil Code.

16 Art. II Sec. 11, Const.

17 Art. II, Sec. 14, Const.
18 Art. 69, Family Code.
19 Art. 71, Family Code.

2 Annex "A" Petition, pp. 2-4.

144

REGALADO, J., dissenting:

1 Struble vs. Struble, Tex. Civ. App., 177 S.W. 2d, 279, 283.
2 This is also referred to as natural domicile or domicile by birth (Johnson vs.
Twenty-One Bales, 13 Fed. Cas. 863).
3 Story, Conflict of Laws, Sec. 46; Railroad Co. vs. Kimbrough, 115 Ky 512,
74 S.W. 229; and Johnson vs. Harvey, 261 Ky. 522, 88 S.W. 2d 42, 46, 47, as
cited in Black's Law Dictionary, 4th ed.
4 Article 110, Civil Code.
5 Towson vs. Towson, 126 Va. 640, 102 S.E. 48, 52; Fisher vs. Jordan, C.C.A.
Tex., 116 F. 2d. 183, 186; Minick vs. Minick, 111 Fla. 469, 149 So. 483, 488;
Hartzler vs. Radeka, 265 Mich. 451, 251 N.W. 554.
6 Citing 18 Am. Jur. 219-220.
7 Montejo vs. Marcos, En Banc, May 10, 1995.
8 Citing 20 Am. Jur. 71.
9 Cheely vs. Clayton, D.C., 110 U.S. 701, L. Ed. 298.
10 In re Gates' Estate, 191 N.Y.S. 757, 117 Misc. 800 In re Green's Estate,
164 N.Y.S. 1063, 99 Misc. 582, affirmed 165 N.Y.S. 1088, 179 App. Div. 890,
as reported in 28 C.J.S. 27.
11 Clark vs. Baker, 196 S.E. 750, 186 Ga. 65, op. cit. 37.

145