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Republic of the Philippines SUPREME COURT Baguio City SECOND DIVISION

But, did the "Win-Win" Resolution culminate in victory for all the contending parties? The above-named petitioners cried foul. They have come to this Court urging us to annul and set aside the "Win-Win" Resolution and to enjoin respondent Secretary Ernesto D. Garilao of the Department of Agrarian Reform from implementing the said Resolution. Thus, the crucial issue to be resolved in this case is: What is the legal effect of the "Win-Win" Resolution issued by the Office of the President on its earlier Decision involving the same subject matter, which had already become final and executory? The antecedent facts of this controversy, as culled from the pleadings, may be stated as follows: 1. This case involves a 144-hectare land located at San Vicente, Sumilao, Bukidnon, owned by the Norberto Quisumbing, Sr. Management and Development Corporation (NQSRMDC), one of the petitioners. The property is covered by a Transfer Certificate of Title No. 14371 3 of the Registry of Deeds of the Province of Bukidnon. 2. In 1984, the land was leased as a pineapple plantation to the Philippine Packing Corporation, now Del Monte Philippines, Inc. (DMPI), a multinational corporation, for a period of ten (10) years under the Crop Producer and Grower's Agreement duly annotated in the certificate of title. The lease expired in April, 1994.

G.R. No. 131457 April 24, 1998 HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON. REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners, vs. HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON. ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondents.

MARTINEZ, J.: The dramatic and well-publicized hunger strike staged by some alleged farmer-beneficiaries in front of the Department of Agrarian Reform compound in Quezon City on October 9, 1997 commanded nationwide attention that even church leaders and some presidential candidates tried to intervene for the strikers' "cause."
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3. In October, 1991, during the existence of the lease, the Department of Agrarian Reform (DAR) placed the entire 144-hectare property under The strikers protested the March 29, 1996 Decision of the Office of the 4 President (OP), issued through then Executive Secretary Ruben D. Torres in compulsory acquisition and assessed the land value at P2.38 million. OP Case No. 96-C-6424, which approved the conversion of a one hundred 4. NQSRMDC resisted the DAR's action. In February, 1992, it sought and forty-four (144)-hectare land from agricultural to agro-industrial/institutional was granted by the DAR Adjudication Board (DARAB), through its Provincial area. This led the Office of the President, through then Deputy Executive Agrarian Reform Adjudicator (PARAD) in DARAB Case No. X-576, a writ of Secretary Renato C. Corona, to issue the so-called "Win-Win" 2 prohibition with preliminary injunction which ordered the DAR Region X Resolution on November 7, 1997, substantially modifying its earlier Director, the Provincial Agrarian Reform Officer (PARO) of Bukidnon, the Decision after it had already become final and executory. The said Municipal Agrarian Reform Office (MARO) of Sumilao, Bukidnon, the Land Resolution modified the approval of the land conversion to agro-industrial area only to the extent of forty-four (44) hectares, and ordered the remaining Bank of the Philippines (Land Bank), and their authorized representatives "to desist from pursuing any activity or activities" concerning the subject land one hundred (100) hectares to be distributed to qualified farmer"until further orders." 5 beneficiaries.

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5. Despite the DARAB order of March 31, 1992, the DAR Regional Director issued a memorandum, dated May 21, 1992, directing the Land Bank to open a trust account for P2.38 million in the name of NQSRMDC and to conduct summary proceedings to determine the just compensation of the subject property. NQSRMDC objected to these moves and filed on June 9, 1992 an Omnibus Motion to enforce the DARAB order of March 31, 1992 and to nullify the summary proceedings undertaken by the DAR Regional Director and Land Bank on the valuation of the subject property. 6. The DARAB, on October 22, 1992, acted favorably on the Omnibus Motion by (a) ordering the DAR Regional Director and Land Bank "to seriously comply with the terms of the order dated March 31, 1992;" (b) nullifying the DAR Regional Director's memorandum, dated May 21, 1992, and the summary proceedings conducted pursuant thereto; and (c) directing the Land Bank "to return the claim folder of Petitioner NQSRMDC's subject Property to the DAR until further orders." 6 7. The Land Bank complied with the DARAB order and cancelled the trust account it opened in the name of petitioner NQSRMDC. 7 8. In the meantime, the Provincial Development Council (PDC) of Bukidnon, headed by Governor Carlos O. Fortich, passed Resolution No. 6, 8 dated January 7, 1993, designating certain areas along Bukidnon-Sayre Highway as part of the Bukidnon Agro-Industrial Zones where the subject property is situated. 9. What happened thereafter is well-narrated in the OP (TORRES) Decision of March 29, 1996, pertinent portions of which we quote: Pursuant to Section 20 of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Bayan of Sumilao, Bukidnon, on March 4, 1993, enacted Ordinance No. 24 converting or re-classifying 144 hectares of land in Bgy. San Vicente, said Municipality, from agricultural to industrial/institutional with a view of providing an opportunity to attract investors who can inject new economic vitality, provide more jobs and raise the income of its people. Parenthetically, under said section, 4th to 5th class municipalities may authorize the classification of five percent (5%) of their agricultural land area and provide for the manner of their utilization or disposition.

On 12 October 1993, the Bukidnon Provincial Land Use Committee approved the said Ordinance. Accordingly, on 11 December 1993, the instant application for conversion was filed by Mr. Gaudencio Beduya in behalf of NQSRMDC/BAIDA (Bukidnon Agro-Industrial Development Association). Expressing support for the proposed project, the Bukidnon Provincial Board, on the basis of a Joint Committee Report submitted by its Committee on Laws, Committee on Agrarian Reform and Socio-Economic Committee approved, on 1 February 1994, the said Ordinance now docketed as Resolution No. 94-95. The said industrial area, as conceived by NQSRMDC (project proponent) is supposed to have the following components: 1. Development Academy of Mindanao which constitutes following: Institute for Continuing Higher Education; Institute for Livelihood Science (Vocational and Technical School); Institute for Agribusiness Research; Museum, Library, Cultural Center, and Mindanao Sports Development Complex which covers an area of 24 hectares; 2. Bukidnon Agro-Industrial Park which consists of corn processing for corn oil, corn starch, various corn products; rice processing for wine, rice-based snacks, exportable rice; cassava processing for starch, alcohol and food delicacies; processing plants, fruits and fruit products such as juices; processing plants for vegetables processed and prepared for market; cold storage and ice plant; cannery system; commercial stores; public market; and abattoir needing about 67 hectares; 3. Forest development which includes open spaces and parks for recreation, horse-back riding, memorial and minizoo estimated to cover 33 hectares; and 4. Support facilities which comprise the construction of a 360-room hotel, restaurants, dormitories and a housing project covering an area of 20 hectares.

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The said NQSRMDC Proposal was, per Certification dated January 4, 1995, adopted by the Department of Trade and Industry, Bukidnon Provincial Office, as one of its flagship projects. The same was likewise favorably recommended by the Provincial Development Council of Bukidnon; the municipal, provincial and regional office of the DAR; the Regional Office (Region X) of the DENR (which issued an Environmental Compliance Certificate on June 5, 1995); the Executive Director, signing "By Authority of PAUL G. DOMINGUEZ," Office of the President Mindanao; the Secretary of DILG; and Undersecretary of DECS Wilfredo D. Clemente. In the same vein, the National Irrigation Administration, Provincial Irrigation Office, Bagontaas Valencia, Bukidnon, thru Mr. Julius S. Maquiling, Chief, Provincial Irrigation Office, interposed NO. OBJECTION to the proposed conversion "as long as the development cost of the irrigation systems thereat which is P2,377.00 per hectare be replenished by the developer . . . ." Also, the Kisolon-San Vicente Irrigators Multi Purpose Cooperative, San Vicente, Sumilao, Bukidnon, interposed no objection to the proposed conversion of the land in question "as it will provide more economic benefits to the community in terms of outside investments that will come and employment opportunities that will be generated by the projects to be put up . . . . On the same score, it is represented that during the public consultation held at the Kisolan Elementary School on 18 March 1995 with Director Jose Macalindong of DAR Central Office and DECS Undersecretary Clemente, the people of the affected barangay rallied behind their respective officials in endorsing the project. Notwithstanding the foregoing favorable recommendation, however, on November 14, 1994, the DAR, thru Secretary Garilao, invoking its powers to approve conversion of lands under Section 65 of R.A. No. 6657, issued an Order denying the instant application for the conversion of the subject land from agricultural to agro-industrial and, instead, placed the same under the compulsory coverage of CARP and directed the distribution thereof to all qualified beneficiaries on the following grounds:

1. The area is considered as a prime agricultural land with irrigation facility; 2. The land has long been covered by a Notice of Compulsory Acquisition (NCA); 3. The existing policy on withdrawal or lifting on areas covered by NCA is not applicable; 4. There is no clear and tangible compensation package arrangements for the beneficiaries; 5. The procedures on how the area was identified and reclassified for agro-industrial project has no reference to Memo Circular No. 54, Series of 1993, E.O. No. 72, Series of 1993, and E.O. No. 124, Series of 1993. A Motion for Reconsideration of the aforesaid Order was filed on January 9, 1995 by applicant but the same was denied (in an Order dated June 7, 1995). 9 10. Thus, the DAR Secretary ordered the DAR Regional Director "to proceed with the compulsory acquisition and distribution of the property." 10 11. Governor Carlos O. Fortich of Bukidnon appealed" the order of denial to the Office of the President and prayed for the conversion/reclassification of the subject land as the same would be more beneficial to the people of Bukidnon. 12. To prevent the enforcement of the DAR Secretary's order, NQSRMDC, on June 29, 1995, filed with the Court of Appeals a petition for certiorari, prohibition with preliminary injunction, 12 docketed as CA-G.R. SP No. 37614. 13. Meanwhile, on July 25, 1995, the Honorable Paul G. Dominguez, then Presidential Assistant for Mindanao, after conducting an evaluation of the proposed project, sent a memorandum 13 to the President favorably endorsing the project with a recommendation that the DAR Secretary reconsider his decision in denying the application of the province for the conversion of the land.

14. Also, in a memorandum 14 to the President dated August 23, 1995, the Honorable Rafael Alunan III, then Secretary of the Department of the Interior and Local Government (DILG), recommended the conversion of the subject land to industrial/institutional use with a request that the President "hold the implementation of the DAR order to distribute the land in question." 15. On October 23, 1995, the Court of Appeals, in CA-G.R. SP No. 37614, issued a Resolution 15 ordering the parties to observe status quo pending resolution of the petition. At the hearing held in said case on October 5, 1995, the DAR, through the Solicitor General, manifested before the said court that the DAR was merely "in the processing stage of the applications of farmers-claimants" and has agreed to respect status quo pending the resolution of the petition.16 16. In resolving the appeal, the Office of the President, through then Executive Secretary Ruben D. Torres, issued a Decision in OP Case No. 96-C-6424, dated March 29, 1996, reversing the DAR Secretary's decision, the pertinent portions of which read: After a careful evaluation of the petition vis-a-vis the grounds upon which the denial thereof by Secretary Garilao was based, we find that the instant application for conversion by the Municipality of Sumilao, Bukidnon is impressed with merit. To be sure, converting the land in question from agricultural to agro-industrial would open great opportunities for employment and bring about real development in the area towards a sustained economic growth of the municipality. On the other hand, distributing the land to would-be beneficiaries (who are not even tenants, as there are none) does not guarantee such benefits. Nevertheless, on the issue that the land is considered a prime agricultural land with irrigation facility it maybe appropriate to mention that, as claimed by petitioner, while it is true that there is, indeed, an irrigation facility in the area, the same merely passes thru the property (as a right of way) to provide water to the ricelands located on the lower portion thereof. The land itself, subject of the instant petition, is not irrigated as the same was, for several years, planted with pineapple by the Philippine Packing Corporation.

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Department of Agrarian Reform Adjudication Board (DARAB) as early as March 1, 1992. Deciding in favor of NQSRMDC, the DARAB correctly pointed out that under Section 8 of R.A. No. 6657, the subject property could not validly be the subject of compulsory acquisition until after the expiration of the lease contract with Del Monte Philippines, a Multi-National Company, or until April 1994, and ordered the DAR Regional Office and the Land Bank of the Philippines, both in Butuan City, to "desist from pursuing any activity or activities covering petitioner's land. On this score, we take special notice of the fact that the Quisumbing family has already contributed substantially to the land reform program of the government, as follows: 300 hectares of rice land in Nueva Ecija in the 70's and another 400 hectares in the nearby Municipality of Impasugong, Bukidnon, ten(10) years ago, for which they have not received "just compensation" up to this time. Neither can the assertion that "there is no clear and tangible compensation package arrangements for the beneficiaries' hold water as, in the first place, there are no beneficiaries to speak about, for the land is not tenanted as already stated. Nor can procedural lapses in the manner of identifying/reclassifying the subject property for agro-industrial purposes be allowed to defeat the very purpose of the law granting autonomy to local government units in the management of their local affairs. Stated more simply, the language of Section 20 of R.A. No. 7160, supra, is clear and affords no room for any other interpretation. By unequivocal legal mandate, it grants local government units autonomy in their local affairs including the power to convert portions of their agricultural lands and provide for the manner of their utilization and disposition to enable them to attain their fullest development as self-reliant communities. WHEREFORE, in pursuance of the spirit and intent of the said legal mandate and in view of the favorable recommendations of the various government agencies abovementioned, the subject Order, dated November 14, 1994 of the Hon. Secretary, Department of Agrarian Reform, is hereby SET ASIDE and the instant application of NQSRMDC/BAIDA is hereby APPROVED. 17

On the issue that the land has long been covered by a Notice of Compulsory Acquisition (NCA) and that the existing policy on withdrawal or lifting on areas covered by NCA is not applicable, 17. On May 20, 1996, DAR filed a motion for reconsideration of the OP suffice it to state that the said NCA was declared null and void by the decision.

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18. On September 11, 1996, in compliance with the OP decision of March 29, 1996, NQSRMDC and the Department of Education, Culture and Sports (DECS) executed a Memorandum of Agreement whereby the former donated four (4) hectares from the subject land to DECS for the establishment of the NQSR High School. 18 When NQSRMDC was about to transfer the title over the 4-hectare donated to DECS, it discovered that the title over the subject property was no longer in its name. It soon found out that during the pendency of both the Petition for Certiorari, Prohibition, with Preliminary Injunction it filed against DAR in the Court of Appeals and the appeal to the President filed by Governor Carlos O. Fortich, the DAR, without giving just compensation, caused the cancellation of NQSRMDC's title on August 11, 1995 and had it transferred in the name of the Republic of the Philippines under TCT No. T-50264 19 of the Registry of Deeds of Bukidnon. Thereafter, on September 25, 1995, DAR caused the issuance of Certificates of Land Ownership Award (CLOA) No. 00240227 and had it registered in the name of 137 farmer-beneficiaries under TCT No. AT-3536 20 of the Registry of Deeds of Bukidnon. 19. Thus, on April 10, 1997, NQSRMDC filed a complaint 21 with the Regional Trial Court (RTC) of Malaybalay, Bukidnon (Branch 9), docketed as Civil Case No. 2687-97, for annulment and cancellation of title, damages and injunction against DAR and 141 others. The RTC then issued a Temporary Restraining Order on April 30, 1997 22 and a Writ of Preliminary Injunction on May 19, 1997, 23 restraining the DAR and 141 others from entering, occupying and/or wresting from NQSRMDC the possession of the subject land. 20. Meanwhile, on June 23, 1997, an Order 24 was issued by then Executive Secretary Ruben D. Torres denying DAR's motion for reconsideration for having been filed beyond the reglementary period of fifteen (15) days. The said order further declared that the March 29, 1996 OP decision had already become final and executory. 21. The DAR filed on July 11, 1997 a second motion for reconsideration of the June 23, 1997 Order of the President. 22. On August 12, 1997, the said writ of preliminary injunction issued by the RTC was challenged by some alleged farmers before the Court of Appeals through a petition for certiorari and prohibition, docketed as CA-G.R. SP No. 44905, praying for the lifting of the injunction and for the issuance of a writ of prohibition from further trying the RTC case.

23. On October 9, 1997, some alleged farmer-beneficiaries began their hunger strike in front of the DAR Compound in Quezon City to protest the OP Decision of March 29, 1996. On October 10, 1997, some persons claiming to be farmer-beneficiaries of the NQSRMDC property filed a motion for intervention (styled as Memorandum In Intervention) in O.P. Case No. 96-C-6424, asking that the OP Decision allowing the conversion of the entire 144-hectare property be set aside.25 24. President Fidel V. Ramos then held a dialogue with the strikers and promised to resolve their grievance within the framework of the law. He created an eight (8)-man Fact Finding Task Force (FFTF) chaired by Agriculture Secretary Salvador Escudero to look into the controversy and recommend possible solutions to the problem. 26 25. On November 7, 1997, the Office of the President resolved the strikers' protest by issuing the so-called "Win/Win" Resolution penned by then Deputy Executive Secretary Renato C. Corona, the dispositive portion of which reads: WHEREFORE, premises considered, the decision of the Office of the President, through Executive Secretary Ruben Torres, dated March 29, 1996, is hereby MODIFIED as follows: 1. NQSRMDC's application for conversion is APPROVED only with respect to the approximately forty-four (44) hectare portion of the land adjacent to the highway, as recommended by the Department of Agriculture. 2. The remaining approximately one hundred (100) hectares traversed by an irrigation canal and found to be suitable for agriculture shall be distributed to qualified farmerbeneficiaries in accordance with RA 6657 or the Comprehensive Agrarian Reform Law with a right of way to said portion from the highway provided in the portion fronting the highway. For this purpose, the DAR and other concerned government agencies are directed to immediately conduct the segregation survey of the area, valuation of the property and generation of titles in the name of the identified farmerbeneficiaries.

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3. The Department of Agrarian Reform is hereby directed to carefully and meticulously determine who among the claimants are qualified farmer-beneficiaries. 4. The Department of Agrarian Reform is hereby further directed to expedite payment of just compensation to NQSRMDC for the portion of the land to be covered by the CARP, including other lands previously surrendered by NQSRMDC for CARP coverage. 5. The Philippine National Police is hereby directed to render full assistance to the Department of Agrarian Reform in the implementation of this Order. We take note of the Memorandum in Intervention filed by 113 farmers on October 10, 1997 without ruling on the propriety or merits thereof since it is unnecessary to pass upon it at this time. SO ORDERED. 27 A copy of the "Win-Win" Resolution was received by Governor Carlos O. Fortich of Bukidnon, Mayor Rey B. Baula of Sumilao, Bukidnon, and NQSRMDC on November 24, 1997 28 and, on December 4, 1997, they filed the present petition for certiorari, prohibition (under Rule 65 of the Revised Rules of Court) and injunction with urgent prayer for a temporary restraining order and/or writ of preliminary injunction (under Rule 58, ibid.), against then Deputy Executive Secretary Renato C. Corona and DAR Secretary Ernesto D. Garilao. On December 12, 1997, a Motion For Leave To Intervene 29 was filed by alleged farmer-beneficiaries, through counsel, claiming that they are real parties in interest as they were "previously identified by respondent DAR as agrarian reform beneficiaries on the 144-hectare" property subject of this case. The motion was vehemently opposed 30 by the petitioners. In seeking the nullification of the "Win-Win" Resolution, the petitioners claim that the Office of the President was prompted to issue the said resolution "after a very well-managed hunger strike led by fake farmer-beneficiary Linda Ligmon succeeded in pressuring and/or politically blackmailing the Office of the President to come up with this purely political decision to appease the 'farmers,' by reviving and modifying the Decision of 29 March

1996 which has been declared final and executory in an Order of 23 June 1997. . . ." 31 Thus, petitioners further allege, respondent then Deputy Executive Secretary Renato C. Corona "committed grave abuse of discretion and acted beyond his jurisdiction when he issued the questioned Resolution of 7 November 1997. . . ." 32 They availed of this extraordinary writ of certiorari "because there is no other plain, speedy and adequate remedy in the ordinary course of law." 33 They never filed a motion for reconsideration of the subject Resolution "because (it) is patently illegal or contrary to law and it would be a futile exercise to seek a reconsideration. . . ." 34 The respondents, through the Solicitor General, opposed the petition and prayed that it be dismissed outright on the following grounds: (1) The proper remedy of petitioners should have been to file a petition for review directly with the Court of Appeals in accordance with Rule 43 of the Revised Rules of Court; (2) The petitioners failed to file a motion for reconsideration of the assailed "Win-Win" Resolution before filing the present petition; and (3) Petitioner NQSRMDC is guilty of forum-shopping. These are the preliminary issues which must first be resolved, including the incident on the motion for intervention filed by the alleged farmerbeneficiaries. Anent the first issue, in order to determine whether the recourse of petitioners is proper or not, it is necessary to draw a line between an error of judgment and an error of jurisdiction. An error of judgment is one which the court may commit in the exercise of its jurisdiction, and which error is reviewable only by an appeal. 35 On the other hand, an error of jurisdiction is one where the act complained of was issued by the court, officer or a quasijudicial body without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction. 36 This error is correctable only by the extraordinary writ of certiorari. 37 It is true that under Rule 43, appeals from awards, judgments, final orders or resolutions of any quasi-judicial agency exercising quasi-judicial functions, 38including the Office of the President, 39 may be taken to the Court of Appeals by filing a verified petition for review 40 within fifteen (15) days from notice of the said judgment, final order or resolution, 41 whether

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the appeal involves questions of fact, of law, or mixed questions of fact and law. 42 However, we hold that, in this particular case, the remedy prescribed in Rule 43 is inapplicable considering that the present petition contains an allegation that the challenged resolution is "patently illegal" 43 and was issued with "grave abuse of discretion" and "beyond his (respondent Secretary Renato C. Corona's) jurisdiction" 44 when said resolution substantially modified the earlier OP Decision of March 29, 1996 which had long become final and executory. In other words, the crucial issue raised here involves an error of jurisdiction, not an error of judgment which is reviewable by an appeal under Rule 43. Thus, the appropriate remedy to annul and set aside the assailed resolution is an original special civil action for certiorari under Rule 65, as what the petitioners have correctly done. The pertinent portion of Section 1 thereof provides:

if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasijudicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. (4a)

Under the above-qouted Section 4, the Supreme Court, Court of Appeals and Regional Trial Court have original concurrent jurisdiction to issue a writ ofcertiorari, 46 prohibition 47 and mandamus. 48 But the jurisdiction of these three (3) courts are also delineated in that, if the challenged act relates to acts or omissions of a lower court or of a corporation, board, officer or Sec. 1. Petition for certiorari. When any tribunal, board or person, the petition must be filed with the Regional Trial Court which officer exercising judicial or quasi-judicial functions has acted exercises jurisdiction over the territorial area as defined by the Supreme Court. And if it involves the act or omission of a quasi-judicial agency, the without or in excess of its or his jurisdiction, or with grave petition shall be filed only with the Court of Appeals, unless otherwise abuse of discretion amounting to lack or excess of this matter jurisdiction, and there is no appeal, or any plain, speedy, and provided by law or the Rules of Court. We have clearly discussed 49 of concurrence of jurisdiction in People vs . Cuaresma , et . al ., through now adequate remedy in the ordinary course of law, a person Chief Justice Andres R. Narvasa, thus: aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the . . . . This Court's original jurisdiction to issue writs proceedings of such tribunal, board or officer, and granting of certiorari (as well as prohibition, mandamus, quo such incidental reliefs as law and justice may require. warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, xxx xxx xxx enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with The office of a writ of certiorari is restricted to truly extraordinary the Court of Appeals (formerly, Intermediate Appellate cases cases in which the act of the lower court or quasi-judicial 45 Court), although prior to the effectivity of Batas Pambansa body is wholly void. Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to those "in aid of The aforequoted Section 1 of Rule 65 mandates that the person aggrieved its appellate jurisdiction." This concurrence of jurisdiction is by the assailed illegal act "may file a verified petition (for certiorari) in the not, however, to be taken as according to parties seeking proper court." The proper court where the petition must be filed is stated in any of the writs an absolute, unrestrained freedom of choice Section 4 of the same Rule 65 which reads: of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is Sec. 4. Where petition filed. The petition may be filed not determinative of the venue of appeals, and should also serve later than sixty (60) days from notice of the judgment, order as a general determinant of the appropriate forum for or resolution sought to be assailed in the Supreme Court or, petitions for the extraordinary writs. A becoming regard for

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that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. (Citations omitted) But the Supreme Court has the full discretionary power to take cognizance of the petition filed directly to it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: 50 Uy vs.Contreras, et. al., 51 Torres vs. Arranz, 52 Bercero vs. De Guzman, 53 and Advincula vs. Legaspi, et. al. 54 As we have further stated in Cuaresma: . . . . A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice 55 and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, as will be discussed later, we find the assailed resolution wholly void and requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched, in our jurisprudence. We reiterate what we said inPiczon vs. Court of Appeals: 56 Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so

require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. As to the second issue of whether the petitioners committed a fatal procedural lapse when they failed to file a motion for reconsideration of the assailed resolution before seeking judicial recourse, suffice it to state that the said motion is not necessary when the questioned resolution is a patent nullity, 57 as will be taken up later. With respect to the third issue, the respondents claim that the filing by the petitioners of: (a) a petition for certiorari, prohibition with preliminary injunction (CA-G.R. SP No. 37614) with the Court of Appeals; (b) a complaint for annulment and cancellation of title, damages and injunction against DAR and 141 others (Civil Case No. 2687-97) with the Regional Trial Court of Malaybalay, Bukidnon; and (c) the present petition, constitute forum shopping. We disagree. The rule is that: There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigation commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This specially so, as in this case, where the court in which the second suit was brought, has no jurisdiction (citations omitted). The test for determining whether a party violated the rule against forum shopping has been laid down in the 1986 case of Buan vs. Lopez (145 SCRA 34), . . . and that is, forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicatain the other, as follows:

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There thus exists between the action before this Court and RTC Case No. 86-36563 identity of parties, or at least such parties as represent the same interests in both actions, as well as identity of rights asserted and relief prayed for, the relief being founded on the same facts, and the identity on the two preceding particulars is such that any judgment rendered in the other action, will, regardless of which party is successful, amount to res adjudicata in the action under consideration: all the requisites, in fine, of auter action pendant. 58 It is clear from the above-quoted rule that the petitioners are not guilty of forum shopping. The test for determining whether a party has violated the rule against forum shopping is where a final judgment in one case will amount to res adjudicata in the action under consideration. A cursory examination of the cases filed by the petitioners does not show that the said cases are similar with each other. The petition for certiorari in the Court of Appeals sought the nullification of the DAR Secretary's order to proceed with the compulsory acquisition and distribution of the subject property. On the other hand, the civil case in RTC of Malaybalay, Bukidnon for the annulment and cancellation of title issued in the name of the Republic of the Philippines, with damages, was based on the following grounds: (1) the DAR, in applying for cancellation of petitioner NQSRMDC's title, used documents which were earlier declared null and void by the DARAB; (2) the cancellation of NQSRMDC's title was made without payment of just compensation; and (3) without notice to NQSRMDC for the surrender of its title. The present petition is entirely different from the said two cases as it seeks the nullification of the assailed "Win-Win" Resolution of the Office of the President dated November 7, 1997, which resolution was issued long after the previous two cases were instituted. The fourth and final preliminary issue to be resolved is the motion for intervention filed by alleged farmer-beneficiaries, which we have to deny for lack of merit. In their motion, movants contend that they are the farmerbeneficiaries of the land in question, hence, are real parties in interest. To prove this, they attached as Annex "I" in their motion a Master List of Farmer-Beneficiaries. Apparently, the alleged master list was made pursuant to the directive in the dispositive portion of the assailed "Win-Win" Resolution which directs the DAR "to carefully and meticulously determine who among the claimants are qualified farmer-beneficiaries." However, a

perusal of the said document reveals that movants are those purportedly "Found Qualified and Recommended for Approval." In other words, movants are merelyrecommendee farmer-beneficiaries. The rule in this jurisdiction is that a real party in interest is a party who would be benefited or injured by the judgment or is the party entitled to the avails of the suit. Real interest means a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate or consequential interest.59 Undoubtedly, movants' interest over the land in question is a mere expectancy. Ergo, they are not real parties in interest. Furthermore, the challenged resolution upon which movants based their motion is, as intimated earlier, null and void. Hence, their motion for intervention has no leg to stand on. Now to the main issue of whether the final and executory Decision dated March 29, 1996 can still be substantially modified by the "Win-Win" Resolution. We rule in the negative. The rules and regulations governing appeals to the Office of the President of the Philippines are embodied in Administrative Order No. 18. Section 7 thereof provides: Sec. 7. Decisions/resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is filed within such period. Only one motion for reconsideration by any one party shall be allowed and entertained, save in exceptionally meritorious cases. (Emphasis ours). It is further provided for in Section 9 that "The Rules of Court shall apply in a suppletory character whenever practicable. When the Office of the President issued the Order dated June 23, 1997 declaring the Decision of March 29, 1996 final and executory, as no one has seasonably filed a motion for reconsideration thereto, the said Office had lost its jurisdiction to re-open the case, more so modify its Decision. Having

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lost its jurisdiction, the Office of the President has no more authority to entertain the second motion for reconsideration filed by respondent DAR Secretary, which second motion became the basis of the assailed "Win-Win" Resolution. Section 7 of Administrative Order No. 18 and Section 4, Rule 43 of the Revised Rules of Court mandate that only one (1) motion for reconsideration is allowed to be taken from the Decision of March 29, 1996. And even if a second motion for reconsideration was permitted to be filed in "exceptionally meritorious cases," as provided in the second paragraph of Section 7 of AO 18, still the said motion should not have been entertained considering that the first motion for reconsideration was not seasonably filed, thereby allowing the Decision of March 29, 1996 to lapse into finality. Thus, the act of the Office of the President in re-opening the case and substantially modifying its March 29, 1996 Decision which had already become final and executory, was in gross disregard of the rules and basic legal precept that accord finality to administrative determinations. In San Luis, et al. vs. Court of Appeals, et al. 60 we held: Since the decisions of both the Civil Service Commission and the Office of the President had long become final and executory, the same can no longer be reviewed by the courts. It is well-established in our jurisprudence that the decisions and orders of administrative agencies, rendered pursuant to their quasi-judicial authority, have upon their finality, the force and binding effect of a final judgment within the purview of the doctrine of res judicata [Brillantes v. Castro, 99 Phil. 497 (1956), Ipekdijna Merchandizing Co., Inc. v. Court of Tax Appeals, G.R. No. L-15430, September 30, 1963, 9 SCRA 72.] The rule of res judicata which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasijudicial acts of public, executive or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers [Brillantes v. Castro, supra at 503]. The orderly administration of justice requires that the judgments/resolutions of a court or quasi-judicial body must reach a point of finality set by the law, rules and regulations. The noble purpose is to write finis to disputes once and for all. 61 This is a fundamental principle in our justice system, without which there would no end to litigations. Utmost respect and adherence to this principle must always be maintained by those who wield the power of

adjudication. Any act which violates such principle must immediately be struck down. Therefore, the assailed "Win-Win" Resolution which substantially modified the Decision of March 29, 1996 after it has attained finality, is utterly void. Such void resolution, as aptly stressed by Justice Thomas A. Street 62 in a 1918 case, 63 is "a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head." 64 WHEREFORE, the present petition is hereby GRANTED. The challenged Resolution dated November 7, 1997, issued by the Office of the President in OP Case No. 96-C-6424, is hereby NULLIFIED and SET ASIDE. The Motion For Leave To Intervene filed by alleged farmer-beneficiaries is hereby DENIED. No pronouncement as to costs. SO ORDERED. Regalado, Melo, Puno and Mendoza, JJ., concur.
Footnotes 1 Annex "AA," Petition; Rollo, pp. 163-167. 2 Annex "A," Petition; Ibid., pp. 48-63. 3 Annex "B," Petition; Rollo, pp. 64-655. 4 Par. 12, Petition; Ibid., p. 6. 5 Annex "C," Petition; ibid, pp. 66-67. 6 Annex "D," Petition; ibid., p. 68. 7 Annexes "E," "F" and "G," Petition; ibid., pp. 69-71. 8 Annex "H," Petition; Ibid., p. 72. 9 Annex "AA," Petition; Ibid., pp. 163-166. 10 Annex "S," Petition; Ibid., p. 113. 11 Annex "T," Petition; Ibid., pp. 115-120. 12 Annex "U," Petition; Ibid., pp. 121-146. 13 Annexes "V" and "V-1," Petition; Ibid., pp. 147-150. 14 Annex "W," Petition; Ibid., pp. 151-153. 15 Annex "X," Petition; Ibid., pp. 154-156. 16 Annex "Y," Petition; Ibid., pp. 157-158. 17 Ibid., pp. 166-167. 18 Par. 37, Petition, rollo, pp. 14-15. 19 Annex "BB," Petition; Ibid., p. 168. 20 Annex "CC," Petition; Ibid., pp. 169-176. 21 Annex "DD," Petition; Ibid., pp. 177-189. 22 Annex "EE," Petition; Rollo, pp. 190-191. 23 Annex "GG," Petition; Ibid., pp. 193-194. 24 Annex "FF," Petition; Ibid., p. 192. 25 Par. 17, Respondents' Comment, rollo, p. 532. 26 Par. 18, ibid., p. 533. 27 Rollo, pp. 61-62.

!"#$"%&'&$()*+"*&'&,)-.&//01/& 28 Par. 3, Petition; Ibid., p. 4. 29 Rollo, pp. 195-200. 30 Ibid., pp. 280-282. 31 Petition, ibid., p. 17. 32 Ibid., p. 18. 33 Ibid., p. 4. 34 Ibid., p. 5. 35 Fernando vs. Vasquez, et. al., 31 SCRA 288. 36 Ibid; Section 1, Rule 65, Revised Rules of Court. 37 Ibid. 38 Except those issued under the Labor Code of the Philippines (Sec. 2, Rule 43, Revised Rules of Court). 39 Section 1, Rule 43, Revised Rules of Court. 40 Sections 3 & 5, ibid. 41 Section 4, ibid. 42 Section 3, ibid. 43 Petition, rollo, p. 5. 44 Ibid., p. 18. 45 Fernando vs. Vasquez, et al., 31 SCRA 288. 46 Section I, Rule 65, Revised Rules of Court; People vs. Cuaresma, et. al., 172 SCRA 415, 423; Vergara, Sr. vs. Suelto, et. al., 156 SCRA 753, 766. 47 Section 2, ibid. 48 Section 3, ibid. 49 Supra. 50 Cited in Regalado, Remedial Law Compendium, Vol. One, 1997 edition, p. 721. 51 G.R. Nos. 111416-17, Sept. 26, 1994. 52 G.R. No. 123352, Feb. 7, 1996. 53 G.R. No. 123573, Feb. 28, 1996. 54 G.R. No. 125500, Aug. 7, 1996. 55 Eugenio vs. Drilon, et. al., G.R. No. 109404, Jan. 22, 1996; 252 SCRA 106,110. 56 190 SCRA 31, 38. 57 Vigan Electric Light Co., Inc. vs. Public Service Commission, L-19850, Jan. 30, 1964; Luzon Surety Co. vs. Marbella, et al., L-16088, Sept. 30, 1960; Dir. Of Lands vs. Santamaria, 44 Phil. 594, all cited in Regalado, Remedial Law Compendium, supra, p. 710. 58 First Philippine International Bank, et. al. vs. Court of Appeals, et. al., 252 SCRA 259, 283 (Jan. 24, 1996). 59 Garcia vs. David, 67 Phil. 27. 60 174 SCRA 258, 271. 61 Legarda, et al. vs. Savellano, et al., 158 SCRA 194, 200. 62 One of the first Justices of the Supreme Court of the Philippines. 63 El Banco Espaol-Filipino vs. Palanca, 37 Phil. 921. 64 Ibid., at p. 949.

& SUPREME COURT Manila EN BANC

legislature is elected and convened under a new Constitution." 1 In the exercise of this legislative power, the President signed on July 22, 1987, Proclamation No. 131 instituting a Comprehensive Agrarian Reform Program and Executive Order No. 229 providing the mechanisms necessary to initially implement the program.

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G.R. No. 127876 December 17, 1999 ROXAS & CO., INC., petitioner, vs. THE HONORABLE COURT OF APPEALS, DEPARTMENT OF AGRARIAN REFORM, SECRETARY OF AGRARIAN REFORM, DAR REGIONAL DIRECTOR FOR REGION IV, MUNICIPAL AGRARIAN REFORM OFFICER OF NASUGBU, BATANGAS and DEPARTMENT OF AGRARIAN REFORM ADJUDICATION BOARD, respondents.

On July 27, 1987, the Congress of the Philippines formally convened and took over legislative power from the President. 2 This Congress passed Republic Act No. 6657, the Comprehensive Agrarian Reform Law (CARL) of 1988. The Act was signed by the President on June 10, 1988 and took effect on June 15, 1988. Before the law's effectivity, on May 6, 1988, petitioner filed with respondent DAR a voluntary offer to sell Hacienda Caylaway pursuant to the provisions of E.O. No. 229. Haciendas Palico and Banilad were later placed under compulsory acquisition by respondent DAR in accordance with the CARL. Hacienda Palico On September 29, 1989, respondent DAR, through respondent Municipal Agrarian Reform Officer (MARO) of Nasugbu, Batangas, sent a notice entitled "Invitation to Parties" to petitioner. The Invitation was addressed to "Jaime Pimentel, Hda. Administrator, Hda. Palico." 3 Therein, the MARO invited petitioner to a conference on October 6, 1989 at the DAR office in Nasugbu to discuss the results of the DAR investigation of Hacienda Palico, which was "scheduled for compulsory acquisition this year under the Comprehensive Agrarian Reform Program." 4 On October 25, 1989, the MARO completed three (3) Investigation Reports after investigation and ocular inspection of the Hacienda. In the first Report, the MARO found that 270 hectares under Tax Declaration Nos. 465, 466, 468 and 470 were "flat to undulating (0-8% slope)" and actually occupied and cultivated by 34 tillers of sugarcane. 5 In the second Report, the MARO identified as "flat to undulating" approximately 339 hectares under Tax Declaration No. 0234 which also had several actual occupants and tillers of sugarcane; 6 while in the third Report, the MARO found approximately 75 hectare under Tax Declaration No. 0354 as "flat to undulating" with 33 actual occupants and tillers also of sugarcane. 7 On October 27, 1989, a "Summary Investigation Report" was submitted and signed jointly by the MARO, representatives of the Barangay Agrarian Reform Committee (BARC) and Land Bank of the Philippines (LBP), and by

PUNO, J.: This case involves three (3) haciendas in Nasugbu, Batangas owned by petitioner and the validity of the acquisition of these haciendas by the government under Republic Act No. 6657, the Comprehensive Agrarian Reform Law of 1988. Petitioner Roxas & Co. is a domestic corporation and is the registered owner of three haciendas, namely, Haciendas Palico, Banilad and Caylaway, all located in the Municipality of Nasugbu, Batangas. Hacienda Palico is 1,024 hectares in area and is registered under Transfer Certificate of Title (TCT) No. 985. This land is covered by Tax Declaration Nos. 0465, 0466, 0468, 0470, 0234 and 0354. Hacienda Banilad is 1,050 hectares in area, registered under TCT No. 924 and covered by Tax Declaration Nos. 0236, 0237 and 0390. Hacienda Caylaway is 867.4571 hectares in area and is registered under TCT Nos. T-44662, T-44663, T-44664 and T-44665. The events of this case occurred during the incumbency of then President Corazon C. Aquino. In February 1986, President Aquino issued Proclamation No. 3 promulgating a Provisional Constitution. As head of the provisional government, the President exercised legislative power "until a

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the Provincial Agrarian Reform Officer (PARO). The Report recommended that 333.0800 hectares of Hacienda Palico be subject to compulsory acquisition at a value of P6,807,622.20. 8 The following day, October 28, 1989, two (2) more Summary Investigation Reports were submitted by the same officers and representatives. They recommended that 270.0876 hectares and 75.3800 hectares be placed under compulsory acquisition at a compensation of P8,109,739.00 and P2,188,195.47, respectively. 9 On December 12, 1989, respondent DAR through then Department Secretary Miriam D. Santiago sent a "Notice of Acquisition" to petitioner. The Notice was addressed as follows: Roxas y Cia, Limited Soriano Bldg., Plaza Cervantes Manila, Metro Manila. 10 Petitioner was informed that 1,023.999 hectares of its land in Hacienda Palico were subject to immediate acquisition and distribution by the government under the CARL; that based on the DAR's valuation criteria, the government was offering compensation of P3.4 million for 333.0800 hectares; that whether this offer was to be accepted or rejected, petitioner was to inform the Bureau of Land Acquisition and Distribution (BLAD) of the DAR; that in case of petitioner's rejection or failure to reply within thirty days, respondent DAR shall conduct summary administrative proceedings with notice to petitioner to determine just compensation for the land; that if petitioner accepts respondent DAR's offer, or upon deposit of the compensation with an accessible bank if it rejects the same, the DAR shall take immediate possession of the land. 11 Almost two years later, on September 26, 1991, the DAR Regional Director sent to the LBP Land Valuation Manager three (3) separate Memoranda entitled "Request to Open Trust Account." Each Memoranda requested that a trust account representing the valuation of three portions of Hacienda Palico be opened in favor of the petitioner in view of the latter's rejection of its offered value. 12 Meanwhile in a letter dated May 4, 1993, petitioner applied with the DAR for conversion of Haciendas Palico and Banilad from agricultural to nonagricultural lands under the provisions of the CARL. 13 On July 14, 1993,

petitioner sent a letter to the DAR Regional Director reiterating its request for conversion of the two haciendas. 14 Despite petitioner's application for conversion, respondent DAR proceeded with the acquisition of the two Haciendas. The LBP trust accounts as compensation for Hacienda Palico were replaced by respondent DAR with cash and LBP bonds. 15 On October 22, 1993, from the mother title of TCT No. 985 of the Hacienda, respondent DAR registered Certificate of Land Ownership Award (CLOA) No. 6654. On October 30, 1993, CLOA's were distributed to farmer beneficiaries. 16 Hacienda Banilad On August 23, 1989, respondent DAR, through respondent MARO of Nasugbu, Batangas, sent a notice to petitioner addressed as follows: Mr. Jaime Pimentel Hacienda Administrator Hacienda Banilad Nasugbu, Batangas 17 The MARO informed Pimentel that Hacienda Banilad was subject to compulsory acquisition under the CARL; that should petitioner wish to avail of the other schemes such as Voluntary Offer to Sell or Voluntary Land Transfer, respondent DAR was willing to provide assistance thereto. 18 On September 18, 1989, the MARO sent an "Invitation to Parties" again to Pimentel inviting the latter to attend a conference on September 21, 1989 at the MARO Office in Nasugbu to discuss the results of the MARO's investigation over Hacienda Banilad. 19 On September 21, 1989, the same day the conference was held, the MARO submitted two (2) Reports. In his first Report, he found that approximately 709 hectares of land under Tax Declaration Nos. 0237 and 0236 were "flat to undulating (0-8% slope)." On this area were discovered 162 actual occupants and tillers of sugarcane. 20 In the second Report, it was found that approximately 235 hectares under Tax Declaration No. 0390 were "flat

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to undulating," on which were 92 actual occupants and tillers of sugarcane. 21 The results of these Reports were discussed at the conference. Present in the conference were representatives of the prospective farmer beneficiaries, the BARC, the LBP, and Jaime Pimentel on behalf of the landowner. 22 After the meeting, on the same day, September 21, 1989, a Summary Investigation Report was submitted jointly by the MARO, representatives of the BARC, LBP, and the PARO. They recommended that after ocular inspection of the property, 234.6498 hectares under Tax Declaration No. 0390 be subject to compulsory acquisition and distribution by CLOA. 23The following day, September 22, 1989, a second Summary Investigation was submitted by the same officers. They recommended that 737.2590 hectares under Tax Declaration Nos. 0236 and 0237 be likewise placed under compulsory acquisition for distribution. 24 On December 12, 1989, respondent DAR, through the Department Secretary, sent to petitioner two (2) separate "Notices of Acquisition" over Hacienda Banilad. These Notices were sent on the same day as the Notice of Acquisition over Hacienda Palico. Unlike the Notice over Hacienda Palico, however, the Notices over Hacienda Banilad were addressed to: Roxas y Cia. Limited 7th Floor, Cacho-Gonzales Bldg. 101 Aguirre St., Leg. Makati, Metro Manila. 25 Respondent DAR offered petitioner compensation of P15,108,995.52 for 729.4190 hectares and P4,428,496.00 for 234.6498 hectares. 26 On September 26, 1991, the DAR Regional Director sent to the LBP Land Valuation Manager a "Request to Open Trust Account" in petitioner's name as compensation for 234.6493 hectares of Hacienda Banilad. 27 A second "Request to Open Trust Account" was sent on November 18, 1991 over 723.4130 hectares of said Hacienda. 28 On December 18, 1991, the LBP certified that the amounts of P4,428,496.40 and P21,234,468.78 in cash and LBP bonds had been earmarked as compensation for petitioner's land in Hacienda Banilad. 29

On May 4, 1993, petitioner applied for conversion of both Haciendas Palico and Banilad. Hacienda Caylaway Hacienda Caylaway was voluntarily offered for sale to the government on May 6, 1988 before the effectivity of the CARL. The Hacienda has a total area of 867.4571 hectares and is covered by four (4) titles TCT Nos. T44662, T-44663, T-44664 and T-44665. On January 12, 1989, respondent DAR, through the Regional Director for Region IV, sent to petitioner two (2) separate Resolutions accepting petitioner's voluntary offer to sell Hacienda Caylaway, particularly TCT Nos. T-44664 and T-44663. 30 The Resolutions were addressed to: Roxas & Company, Inc. 7th Flr. Cacho-Gonzales Bldg. Aguirre, Legaspi Village Makati, M. M 31 On September 4, 1990, the DAR Regional Director issued two separate Memoranda to the LBP Regional Manager requesting for the valuation of the land under TCT Nos. T-44664 and T-44663. 32 On the same day, respondent DAR, through the Regional Director, sent to petitioner a "Notice of Acquisition" over 241.6777 hectares under TCT No. T-44664 and 533.8180 hectares under TCT No. T-44663. 33 Like the Resolutions of Acceptance, the Notice of Acquisition was addressed to petitioner at its office in Makati, Metro Manila. Nevertheless, on August 6, 1992, petitioner, through its President, Eduardo J. Roxas, sent a letter to the Secretary of respondent DAR withdrawing its VOS of Hacienda Caylaway. The Sangguniang Bayan of Nasugbu, Batangas allegedly authorized the reclassification of Hacienda Caylaway from agricultural to non-agricultural. As a result, petitioner informed respondent DAR that it was applying for conversion of Hacienda Caylaway from agricultural to other uses. 34 In a letter dated September 28, 1992, respondent DAR Secretary informed petitioner that a reclassification of the land would not exempt it from agrarian

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reform. Respondent Secretary also denied petitioner's withdrawal of the VOS on the ground that withdrawal could only be based on specific grounds such as unsuitability of the soil for agriculture, or if the slope of the land is over 18 degrees and that the land is undeveloped. 35 Despite the denial of the VOS withdrawal of Hacienda Caylaway, on May 11, 1993, petitioner filed its application for conversion of both Haciendas Palico and Banilad. 36 On July 14, 1993, petitioner, through its President, Eduardo Roxas, reiterated its request to withdraw the VOS over Hacienda Caylaway in light of the following: 1) Certification issued by Conrado I. Gonzales, Officer-inCharge, Department of Agriculture, Region 4, 4th Floor, ATI (BA) Bldg., Diliman, Quezon City dated March 1, 1993 stating that the lands subject of referenced titles "are not feasible and economically sound for further agricultural development. 2) Resolution No. 19 of the Sangguniang Bayan of Nasugbu, Batangas approving the Zoning Ordinance reclassifying areas covered by the referenced titles to non-agricultural which was enacted after extensive consultation with government agencies, including [the Department of Agrarian Reform], and the requisite public hearings. 3) Resolution No. 106 of the Sangguniang Panlalawigan of Batangas dated March 8, 1993 approving the Zoning Ordinance enacted by the Municipality of Nasugbu. 4) Letter dated December 15, 1992 issued by Reynaldo U. Garcia of the Municipal Planning & Development, Coordinator and Deputized Zoning Administrator addressed to Mrs. Alicia P. Logarta advising that the Municipality of Nasugbu, Batangas has no objection to the conversion of the lands subject of referenced titles to non-agricultural. 37 On August 24, 1993 petitioner instituted Case No. N-0017-96-46 (BA) with respondent DAR Adjudication Board (DARAB) praying for the cancellation of the CLOA's issued by respondent DAR in the name of several persons. Petitioner alleged that the Municipality of Nasugbu, where the haciendas are located, had been declared a tourist zone, that the land is not suitable for

agricultural production, and that the Sangguniang Bayan of Nasugbu had reclassified the land to non-agricultural. In a Resolution dated October 14, 1993, respondent DARAB held that the case involved the prejudicial question of whether the property was subject to agrarian reform, hence, this question should be submitted to the Office of the Secretary of Agrarian Reform for determination. 38 On October 29, 1993, petitioner filed with the Court of Appeals CA-G.R. SP No. 32484. It questioned the expropriation of its properties under the CARL and the denial of due process in the acquisition of its landholdings. Meanwhile, the petition for conversion of the three haciendas was denied by the MARO on November 8, 1993. Petitioner's petition was dismissed by the Court of Appeals on April 28, 1994. 39 Petitioner moved for reconsideration but the motion was denied on January 17, 1997 by respondent court. 40 Hence, this recourse. Petitioner assigns the following errors: A. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER'S CAUSE OF ACTION IS PREMATURE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IN VIEW OF THE PATENT ILLEGALITY OF THE RESPONDENTS' ACTS, THE IRREPARABLE DAMAGE CAUSED BY SAID ILLEGAL ACTS, AND THE ABSENCE OF A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW ALL OF WHICH ARE EXCEPTIONS TO THE SAID DOCTRINE. B. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER'S LANDHOLDINGS ARE SUBJECT TO COVERAGE UNDER THE COMPREHENSIVE AGRARIAN REFORM LAW, IN VIEW OF THE UNDISPUTED FACT THAT PETITIONER'S LANDHOLDINGS HAVE BEEN CONVERTED TO NONAGRICULTURAL USES BY PRESIDENTIAL PROCLAMATION NO. 1520 WHICH DECLARED THE MUNICIPALITY NASUGBU, BATANGAS AS A TOURIST ZONE, AND THE ZONING ORDINANCE OF THE

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MUNICIPALITY OF NASUGBU RE-CLASSIFYING CERTAIN PORTIONS OF PETITIONER'S LANDHOLDINGS AS NON-AGRICULTURAL, BOTH OF WHICH PLACE SAID LANDHOLDINGS OUTSIDE THE SCOPE OF AGRARIAN REFORM, OR AT THE VERY LEAST ENTITLE PETITIONER TO APPLY FOR CONVERSION AS CONCEDED BY RESPONDENT DAR. C. RESPONDENT COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO DECLARE THE PROCEEDINGS BEFORE RESPONDENT DAR VOID FOR FAILURE TO OBSERVE DUE PROCESS, CONSIDERING THAT RESPONDENTS BLATANTLY DISREGARDED THE PROCEDURE FOR THE ACQUISITION OF PRIVATE LANDS UNDER R.A. 6657, MORE PARTICULARLY, IN FAILING TO GIVE DUE NOTICE TO THE PETITIONER AND TO PROPERLY IDENTIFY THE SPECIFIC AREAS SOUGHT TO BE ACQUIRED. D. RESPONDENT COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO RECOGNIZE THAT PETITIONER WAS BRAZENLY AND ILLEGALLY DEPRIVED OF ITS PROPERTY WITHOUT JUST COMPENSATION, CONSIDERING THAT PETITIONER WAS NOT PAID JUST COMPENSATION BEFORE IT WAS UNCEREMONIOUSLY STRIPPED OF ITS LANDHOLDINGS THROUGH THE ISSUANCE OF CLOA'S TO ALLEGED FARMER BENEFICIARIES, IN VIOLATION OF R.A. 6657. 41 The assigned errors involve three (3) principal issues: (1) whether this Court can take cognizance of this petition despite petitioner's failure to exhaust administrative remedies; (2) whether the acquisition proceedings over the three haciendas were valid and in accordance with law; and (3) assuming the haciendas may be reclassified from agricultural to non-agricultural, whether this court has the power to rule on this issue. I. Exhaustion of Administrative Remedies. In its first assigned error, petitioner claims that respondent Court of Appeals gravely erred in finding that petitioner failed to exhaust administrative remedies. As a general rule, before a party may be allowed to invoke the jurisdiction of the courts of justice, he is expected to have exhausted all

means of administrative redress. This is not absolute, however. There are instances when judicial action may be resorted to immediately. Among these exceptions are: (1) when the question raised is purely legal; (2) when the administrative body is in estoppel; (3) when the act complained of is patently illegal; (4) when there is urgent need for judicial intervention; (5) when the respondent acted in disregard of due process; (6) when the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied or assumed approval of the latter; (7) when irreparable damage will be suffered; (8) when there is no other plain, speedy and adequate remedy; (9) when strong public interest is involved; (10) when the subject of the controversy is private land; and (11) in quo warranto proceedings. 42 Petitioner rightly sought immediate redress in the courts. There was a violation of its rights and to require it to exhaust administrative remedies before the DAR itself was not a plain, speedy and adequate remedy. Respondent DAR issued Certificates of Land Ownership Award (CLOA's) to farmer beneficiaries over portions of petitioner's land without just compensation to petitioner. A Certificate of Land Ownership Award (CLOA) is evidence of ownership of land by a beneficiary under R.A. 6657, the Comprehensive Agrarian Reform Law of 1988. 43 Before this may be awarded to a farmer beneficiary, the land must first be acquired by the State from the landowner and ownership transferred to the former. The transfer of possession and ownership of the land to the government are conditioned upon the receipt by the landowner of the corresponding payment or deposit by the DAR of the compensation with an accessible bank. Until then, title remains with the landowner. 44 There was no receipt by petitioner of any compensation for any of the lands acquired by the government. The kind of compensation to be paid the landowner is also specific. The law provides that the deposit must be made only in "cash" or "LBP bonds." 45 Respondent DAR's opening of trust account deposits in petitioner' s name with the Land Bank of the Philippines does not constitute payment under the law. Trust account deposits are not cash or LBP bonds. The replacement of the trust account with cash or LBP bonds did not ipso facto cure the lack of compensation; for essentially, the determination of this compensation was marred by lack of due process. In fact, in the entire acquisition proceedings, respondent DAR disregarded the basic requirements of administrative due process. Under these circumstances, the issuance of the CLOA's to farmer beneficiaries necessitated immediate judicial action on the part of the petitioner. II. The Validity of the Acquisition Proceedings Over the Haciendas.

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Petitioner's allegation of lack of due process goes into the validity of the acquisition proceedings themselves. Before we rule on this matter, however, there is need to lay down the procedure in the acquisition of private lands under the provisions of the law. A. Modes of Acquisition of Land under R. A. 6657 Republic Act No. 6657, the Comprehensive Agrarian Reform Law of 1988 (CARL), provides for two (2) modes of acquisition of private land: compulsory and voluntary. The procedure for the compulsory acquisition of private lands is set forth in Section 16 of R.A. 6657, viz: Sec. 16. Procedure for Acquisition of Private Lands. For purposes of acquisition of private lands, the following procedures shall be followed: a). After having identified the land, the landowners and the beneficiaries, the DAR shall send its notice to acquire the land to the owners thereof, by personal delivery or registered mail, and post the same in a conspicuous place in the municipal building and barangay hall of the place where the property is located. Said notice shall contain the offer of the DAR to pay a corresponding value in accordance with the valuation set forth in Sections 17, 18, and other pertinent provisions hereof. b) Within thirty (30) days from the date of receipt of written notice by personal delivery or registered mail, the landowner, his administrator or representative shall inform the DAR of his acceptance or rejection of the offer. c) If the landowner accepts the offer of the DAR, the LBP shall pay the landowner the purchase price of the land within thirty (30) days after he executes and delivers a deed of transfer in favor of the Government and

surrenders the Certificate of Title and other muniments of title. d) In case of rejection or failure to reply, the DAR shall conduct summary administrative proceedings to determine the compensation for the land requiring the landowner, the LBP and other interested parties to submit evidence as to the just compensation for the land, within fifteen (15) days from receipt of the notice. After the expiration of the above period, the matter is deemed submitted for decision. The DAR shall decide the case within thirty (30) days after it is submitted for decision. e) Upon receipt by the landowner of the corresponding payment, or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. f) Any party who disagrees with the decision may bring the matter to the court of proper jurisdiction for final determination of just compensation. In the compulsory acquisition of private lands, the landholding, the landowners and the farmer beneficiaries must first be identified. After identification, the DAR shall send a Notice of Acquisition to the landowner, by personal delivery or registered mail, and post it in a conspicuous place in the municipal building and barangay hall of the place where the property is located. Within thirty days from receipt of the Notice of Acquisition, the landowner, his administrator or representative shall inform the DAR of his acceptance or rejection of the offer. If the landowner accepts, he executes

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and delivers a deed of transfer in favor of the government and surrenders the certificate of title. Within thirty days from the execution of the deed of transfer, the Land Bank of the Philippines (LBP) pays the owner the purchase price. If the landowner rejects the DAR's offer or fails to make a reply, the DAR conducts summary administrative proceedings to determine just compensation for the land. The landowner, the LBP representative and other interested parties may submit evidence on just compensation within fifteen days from notice. Within thirty days from submission, the DAR shall decide the case and inform the owner of its decision and the amount of just compensation. Upon receipt by the owner of the corresponding payment, or, in case of rejection or lack of response from the latter, the DAR shall deposit the compensation in cash or in LBP bonds with an accessible bank. The DAR shall immediately take possession of the land and cause the issuance of a transfer certificate of title in the name of the Republic of the Philippines. The land shall then be redistributed to the farmer beneficiaries. Any party may question the decision of the DAR in the regular courts for final determination of just compensation. The DAR has made compulsory acquisition the priority mode of the land acquisition to hasten the implementation of the Comprehensive Agrarian Reform Program (CARP). 46 Under Section 16 of the CARL, the first step in compulsory acquisition is the identification of the land, the landowners and the beneficiaries. However, the law is silent on how the identification process must be made. To fill in this gap, the DAR issued on July 26, 1989 Administrative Order No.12, Series or 1989, which set the operating procedure in the identification of such lands. The procedure is as follows: II. OPERATING PROCEDURE A. The Municipal Agrarian Reform Officer, with the assistance of the pertinent Barangay Agrarian Reform Committee (BARC), shall: 1. Update the masterlist of all agricultural lands covered under the CARP in his area of responsibility. The masterlist shall include such information as required under the attached CARP Masterlist Form which shall include the name of the landowner, landholding area, TCT/OCT number, and tax declaration number.

2. Prepare a Compulsory Acquisition Case Folder (CACF) for each title (OCT/TCT) or landholding covered under Phase I and II of the CARP except those for which the landowners have already filed applications to avail of other modes of land acquisition. A case folder shall contain the following duly accomplished forms: a) CARP CA Form 1 MARO Investigation Report b) CARP CA Form 2 Summary Investigation Report of Findings and Evaluation c) CARP CA Form 3 Applicant's Information Sheet d) CARP CA Form 4 Beneficiaries Undertaking e) CARP CA Form 5 Transmittal Report to the PARO The MARO/BARC shall certify that all information contained in the abovementioned forms have been examined and verified by him and that the same are true and correct. 3. Send a Notice of Coverage and a letter of invitation to a conference/meeting to the landowner covered by the Compulsory Case Acquisition Folder. Invitations to the said conference/meeting shall also be sent to the prospective farmer-beneficiaries, the BARC representative(s), the Land Bank of the Philippines (LBP) representative, and other interested parties to discuss the inputs to the

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valuation of the property. He shall discuss the MARO/BARC investigation report and solicit the views, objection, agreements or suggestions of the participants thereon. The landowner shall also be asked to indicate his retention area. The minutes of the meeting shall be signed by all participants in the conference and shall form an integral part of the CACF. 4. Submit all completed case folders to the Provincial Agrarian Reform Officer (PARO). B. The PARO shall: 1. Ensure that the individual case folders are forwarded to him by his MAROs. 2. Immediately upon receipt of a case folder, compute the valuation of the land in accordance with A.O. No. 6, Series of 1988. 47 The valuation worksheet and the related CACF valuation forms shall be duly certified correct by the PARO and all the personnel who participated in the accomplishment of these forms. 3. In all cases, the PARO may validate the report of the MARO through ocular inspection and verification of the property. This ocular inspection and verification shall be mandatory when the computed value exceeds = 500,000 per estate. 4. Upon determination of the valuation, forward the case folder, together with the duly accomplished valuation forms and his recommendations, to the Central Office. The LBP representative and the MARO concerned shall be furnished a copy each of his report.

C. DAR Central Office, specifically through the Bureau of Land Acquisition and Distribution (BLAD), shall: 1. Within three days from receipt of the case folder from the PARO, review, evaluate and determine the final land valuation of the property covered by the case folder. A summary review and evaluation report shall be prepared and duly certified by the BLAD Director and the personnel directly participating in the review and final valuation. 2. Prepare, for the signature of the Secretary or her duly authorized representative, a Notice of Acquisition (CARP CA Form 8) for the subject property. Serve the Notice to the landowner personally or through registered mail within three days from its approval. The Notice shall include, among others, the area subject of compulsory acquisition, and the amount of just compensation offered by DAR. 3. Should the landowner accept the DAR's offered value, the BLAD shall prepare and submit to the Secretary for approval the Order of Acquisition. However, in case of rejection or non-reply, the DAR Adjudication Board (DARAB) shall conduct a summary administrative hearing to determine just compensation, in accordance with the procedures provided under Administrative Order No. 13, Series of 1989. Immediately upon receipt of the DARAB's decision on just compensation, the BLAD shall prepare and submit to the Secretary for approval the required Order of Acquisition. 4. Upon the landowner's receipt of payment, in case of acceptance, or upon deposit of payment in the designated bank, in case of rejection or non-response, the Secretary

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The importance of the first notice, i.e., the Notice of Coverage and the letter of invitation to the conference, and its actual conduct cannot be understated. They are steps designed to comply with the requirements of administrative due process. The implementation of the CARL is an exercise of the State's police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution. 50 But where, to carry out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also a taking under the power of eminent domain. The taking contemplated Administrative Order No. 12, Series of 1989 requires that the Municipal is not a mere limitation of the use of the land. What is required is the Agrarian Reform Officer (MARO) keep an updated master list of all agricultural lands under the CARP in his area of responsibility containing all surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer the required information. The MARO prepares a Compulsory Acquisition 51 shall be deprived Case Folder (CACF) for each title covered by CARP. The MARO then sends beneficiary. The Bill of Rights provides that "[n]o person of life, liberty or property without due process of law." 52 The CARL was not the landowner a "Notice of Coverage" and a "letter of invitation" to a intended to take away property without due process of law.53 The exercise "conference/meeting" over the land covered by the CACF. He also sends invitations to the prospective farmer-beneficiaries the representatives of the of the power of eminent domain requires that due process be observed in the taking of private property. Barangay Agrarian Reform Committee (BARC), the Land Bank of the Philippines (LBP) and other interested parties to discuss the inputs to the valuation of the property and solicit views, suggestions, objections or DAR A.O. No. 12, Series of 1989, from whence the Notice of Coverage first agreements of the parties. At the meeting, the landowner is asked to sprung, was amended in 1990 by DAR A.O. No. 9, Series of 1990 and in indicate his retention area. 1993 by DAR A.O. No. 1, Series of 1993. The Notice of Coverage and letter of invitation to the conference meeting were expanded and amplified in said amendments. The MARO shall make a report of the case to the Provincial Agrarian Reform Officer (PARO) who shall complete the valuation of the land. Ocular inspection and verification of the property by the PARO shall be mandatory DAR A.O. No. 9, Series of 1990 entitled "Revised Rules Governing the when the computed value of the estate exceeds P500,000.00. Upon Acquisition of Agricultural Lands Subject of Voluntary Offer to Sell and determination of the valuation, the PARO shall forward all papers together Compulsory Acquisition Pursuant to R.A. 6657," requires that: with his recommendation to the Central Office of the DAR. The DAR Central Office, specifically, the Bureau of Land Acquisition and Distribution (BLAD), B. MARO shall review, evaluate and determine the final land valuation of the property. The BLAD shall prepare, on the signature of the Secretary or his duly 1. Receives the duly accomplished CARP Form Nos. 1 & 1.1 authorized representative, a Notice of Acquisition for the subject including supporting documents. property. 48 From this point, the provisions of Section 16 of R.A. 6657 then apply. 49 2. Gathers basic ownership documents listed under 1.a or 1.b above and prepares corresponding VOCF/CACF by For a valid implementation of the CAR program, two notices are required: landowner/landholding. (1) the Notice of Coverage and letter of invitation to a preliminary conference sent to the landowner, the representatives of the BARC, LBP, farmer 3. Notifies/invites the landowner and representatives of the beneficiaries and other interested parties pursuant to DAR A.O. No. 12, LBP, DENR, BARC and prospective beneficiaries of the Series of 1989; and (2) the Notice of Acquisition sent to the landowner under schedule of ocular inspection of the property at least one Section 16 of the CARL. week in advance.

shall immediately direct the pertinent Register of Deeds to issue the corresponding Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. Once the property is transferred, the DAR, through the PARO, shall take possession of the land for redistribution to qualified beneficiaries.

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4. MARO/LAND BANK FIELD OFFICE/BARC a) Identify the land and landowner, and determine the suitability for agriculture and productivity of the land and jointly prepare Field Investigation Report (CARP Form No. 2), including the Land Use Map of the property. b) Interview applicants and assist them in the preparation of the Application For Potential CARP Beneficiary (CARP Form No. 3). c) Screen prospective farmer-beneficiaries and for those found qualified, cause the signing of the respective Application to Purchase and Farmer's Undertaking (CARP Form No. 4). d) Complete the Field Investigation Report based on the result of the ocular inspection/investigation of the property and documents submitted. See to it that Field Investigation Report is duly accomplished and signed by all concerned. 5. MARO a) Assists the DENR Survey Party in the conduct of a boundary/ subdivision survey delineating areas covered by OLT, retention, subject of VOS, CA (by phases, if possible), infrastructures, etc., whichever is applicable. b) Sends Notice of Coverage (CARP Form No. 5) to landowner concerned or his duly authorized representative inviting him for a conference. c) Sends Invitation Letter (CARP Form No. 6) for a conference/public hearing to prospective farmerbeneficiaries, landowner, representatives of BARC, LBP, DENR, DA, NGO's, farmers' organizations and other interested parties to discuss the following matters: Result of Field Investigation

Inputs to valuation Issues raised Comments/recommendations by all parties concerned. d) Prepares Summary of Minutes of the conference/public hearing to be guided by CARP Form No. 7. e) Forwards the completed VOCF/CACF to the Provincial Agrarian Reform Office (PARO) using CARP Form No. 8 (Transmittal Memo to PARO). xxx xxx xxx DAR A.O. No. 9, Series of 1990 lays down the rules on both Voluntary Offer to Sell (VOS) and Compulsory Acquisition (CA) transactions involving lands enumerated under Section 7 of the CARL. 54 In both VOS and CA. transactions, the MARO prepares the Voluntary Offer to Sell Case Folder (VOCF) and the Compulsory Acquisition Case Folder (CACF), as the case may be, over a particular landholding. The MARO notifies the landowner as well as representatives of the LBP, BARC and prospective beneficiaries of the date of the ocular inspection of the property at least one week before the scheduled date and invites them to attend the same. The MARO, LBP or BARC conducts the ocular inspection and investigation by identifying the land and landowner, determining the suitability of the land for agriculture and productivity, interviewing and screening prospective farmer beneficiaries. Based on its investigation, the MARO, LBP or BARC prepares the Field Investigation Report which shall be signed by all parties concerned. In addition to the field investigation, a boundary or subdivision survey of the land may also be conducted by a Survey Party of the Department of Environment and Natural Resources (DENR) to be assisted by the MARO. 55 This survey shall delineate the areas covered by Operation Land Transfer (OLT), areas retained by the landowner, areas with infrastructure, and the areas subject to VOS and CA. After the survey and field investigation, the MARO sends a "Notice of Coverage" to the landowner or his duly authorized representative inviting him to a conference or public hearing with the farmer beneficiaries, representatives of the BARC, LBP, DENR, Department of Agriculture (DA), non-government organizations, farmer's organizations and other interested parties. At the public hearing, the parties shall discuss the results of the field investigation, issues that may be raised in relation thereto, inputs to the valuation of the subject

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landholding, and other comments and recommendations by all parties concerned. The Minutes of the conference/public hearing shall form part of the VOCF or CACF which files shall be forwarded by the MARO to the PARO. The PARO reviews, evaluates and validates the Field Investigation Report and other documents in the VOCF/CACF. He then forwards the records to the RARO for another review. DAR A.O. No. 9, Series of 1990 was amended by DAR A.O. No. 1, Series of 1993. DAR A.O. No. 1, Series of 1993 provided, among others, that: IV. OPERATING PROCEDURES: Steps Responsible Activity Forms/ Agency/Unit Document (requirements) A. Identification and Documentation xxx xxx xxx 5 DARMO Issue Notice of Coverage CARP to LO by personal delivery Form No. 2 with proof of service, or registered mail with return card, informing him that his property is now under CARP coverage and for LO to select his retention area, if he desires to avail of his right of retention; and at the same time invites him to join the field investigation to be conducted on his property which should be scheduled at least two weeks in advance of said notice. A copy of said Notice shall CARP be posted for at least one Form No. 17 week on the bulletin board of the municipal and barangay halls where the property is located. LGU office concerned notifies DAR about compliance with posting requirements thru return indorsement on CARP Form No. 17. 6 DARMO Send notice to the LBP, CARP

BARC, DENR representatives Form No. 3 and prospective ARBs of the schedule of the field investigation to be conducted on the subject property. 7 DARMO With the participation of CARP BARC the LO, representatives of Form No. 4 LBP the LBP, BARC, DENR Land Use DENR and prospective ARBs, Map Local Office conducts the investigation on subject property to identify the landholding, determines its suitability and productivity; and jointly prepares the Field Investigation Report (FIR) and Land Use Map. However, the field investigation shall proceed even if the LO, the representatives of the DENR and prospective ARBs are not available provided, they were given due notice of the time and date of investigation to be conducted. Similarly, if the LBP representative is not available or could not come on the scheduled date, the field investigation shall also be conducted, after which the duly accomplished Part I of CARP Form No. 4 shall be forwarded to the LBP representative for validation. If he agrees to the ocular inspection report of DAR, he signs the FIR (Part I) and accomplishes Part II thereof. In the event that there is a difference or variance between the findings of the DAR and the LBP as to the propriety of covering the land under CARP, whether in whole or in part, on the issue of suitability to agriculture, degree of development or slope, and on issues affecting idle lands, the conflict shall be resolved by

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a composite team of DAR, LBP, DENR and DA which shall jointly conduct further investigation thereon. The team shall submit its report of findings which shall be binding to both DAR and LBP, pursuant to Joint Memorandum Circular of the DAR, LBP, DENR and DA dated 27 January 1992. 8 DARMO Screen prospective ARBs BARC and causes the signing of CARP the Application of Purchase Form No. 5 and Farmer's Undertaking (APFU). 9 DARMO Furnishes a copy of the CARP duly accomplished FIR to Form No. 4 the landowner by personal delivery with proof of service or registered mail will return card and posts a copy thereof for at least one week on the bulletin board of the municipal and barangay halls where the property is located. LGU office concerned CARP notifies DAR about Form No. 17 compliance with posting requirement thru return endorsement on CARP Form No. 17. B. Land Survey 10 DARMO Conducts perimeter or Perimeter And/or segregation survey or DENR delineating areas covered Segregation Local Office by OLT, "uncarpable Survey Plan areas such as 18% slope and above, unproductive/ unsuitable to agriculture, retention, infrastructure. In case of segregation or subdivision survey, the plan shall be approved

by DENR-LMS. C. Review and Completion of Documents 11. DARMO Forward VOCF/CACF CARP to DARPO. Form No. 6 xxx xxx xxx. DAR A.O. No. 1, Series of 1993, modified the identification process and increased the number of government agencies involved in the identification and delineation of the land subject to acquisition. 56 This time, the Notice of Coverage is sent to the landowner before the conduct of the field investigation and the sending must comply with specific requirements. Representatives of the DAR Municipal Office (DARMO) must send the Notice of Coverage to the landowner by "personal delivery with proof of service, or by registered mail with return card," informing him that his property is under CARP coverage and that if he desires to avail of his right of retention, he may choose which area he shall retain. The Notice of Coverage shall also invite the landowner to attend the field investigation to be scheduled at least two weeks from notice. The field investigation is for the purpose of identifying the landholding and determining its suitability for agriculture and its productivity. A copy of the Notice of Coverage shall be posted for at least one week on the bulletin board of the municipal and barangay halls where the property is located. The date of the field investigation shall also be sent by the DAR Municipal Office to representatives of the LBP, BARC, DENR and prospective farmer beneficiaries. The field investigation shall be conducted on the date set with the participation of the landowner and the various representatives. If the landowner and other representatives are absent, the field investigation shall proceed, provided they were duly notified thereof. Should there be a variance between the findings of the DAR and the LBP as to whether the land be placed under agrarian reform, the land's suitability to agriculture, the degree or development of the slope, etc., the conflict shall be resolved by a composite team of the DAR, LBP, DENR and DA which shall jointly conduct further investigation. The team's findings shall be binding on both DAR and LBP. After the field investigation, the DAR Municipal Office shall prepare the Field Investigation Report and Land Use Map, a copy of which shall be furnished the landowner "by personal delivery with proof of service or registered mail with return card." Another copy of the Report and Map shall likewise be posted for at least one week in the municipal or barangay halls where the property is located. Clearly then, the notice requirements under the CARL are not confined to the Notice of Acquisition set forth in Section 16 of the law. They also include

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the Notice of Coverage first laid down in DAR A.O. No. 12, Series of 1989 and subsequently amended in DAR A.O. No. 9, Series of 1990 and DAR A.O. No. 1, Series of 1993. This Notice of Coverage does not merely notify the landowner that his property shall be placed under CARP and that he is entitled to exercise his retention right; it also notifies him, pursuant to DAR A.O. No. 9, Series of 1990, that a public hearing, shall be conducted where he and representatives of the concerned sectors of society may attend to discuss the results of the field investigation, the land valuation and other pertinent matters. Under DAR A.O. No. 1, Series of 1993, the Notice of Coverage also informs the landowner that a field investigation of his landholding shall be conducted where he and the other representatives may be present. B. The Compulsory Acquisition of Haciendas Palico and Banilad In the case at bar, respondent DAR claims that it, through MARO Leopoldo C. Lejano, sent a letter of invitation entitled "Invitation to Parties" dated September 29, 1989 to petitioner corporation, through Jaime Pimentel, the administrator of Hacienda Palico. 57 The invitation was received on the same day it was sent as indicated by a signature and the date received at the bottom left corner of said invitation. With regard to Hacienda Banilad, respondent DAR claims that Jaime Pimentel, administrator also of Hacienda Banilad, was notified and sent an invitation to the conference. Pimentel actually attended the conference on September 21, 1989 and signed the Minutes of the meeting on behalf of petitioner corporation. 58 The Minutes was also signed by the representatives of the BARC, the LBP and farmer beneficiaries. 59No letter of invitation was sent or conference meeting held with respect to Hacienda Caylaway because it was subject to a Voluntary Offer to Sell to respondent DAR. 60 When respondent DAR, through the Municipal Agrarian Reform Officer (MARO), sent to the various parties the Notice of Coverage and invitation to the conference, DAR A.O. No. 12, Series of 1989 was already in effect more than a month earlier. The Operating Procedure in DAR Administrative Order No. 12 does not specify how notices or letters of invitation shall be sent to the landowner, the representatives of the BARC, the LBP, the farmer beneficiaries and other interested parties. The procedure in the sending of these notices is important to comply with the requisites of due process especially when the owner, as in this case, is a juridical entity. Petitioner is a domestic corporation, 61 and therefore, has a personality separate and distinct from its shareholders, officers and employees.

The Notice of Acquisition in Section 16 of the CARL is required to be sent to the landowner by "personal delivery or registered mail." Whether the landowner be a natural or juridical person to whose address the Notice may be sent by personal delivery or registered mail, the law does not distinguish. The DAR Administrative Orders also do not distinguish. In the proceedings before the DAR, the distinction between natural and juridical persons in the sending of notices may be found in the Revised Rules of Procedure of the DAR Adjudication Board (DARAB). Service of pleadings before the DARAB is governed by Section 6, Rule V of the DARAB Revised Rules of Procedure. Notices and pleadings are served on private domestic corporations or partnerships in the following manner: Sec. 6. Service upon Private Domestic Corporation or Partnership. If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors or partners. Similarly, the Revised Rules of Court of the Philippines, in Section 13, Rule 14 provides: Sec. 13. Service upon private domestic corporation or partnership. If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors. Summonses, pleadings and notices in cases against a private domestic corporation before the DARAB and the regular courts are served on the president, manager, secretary, cashier, agent or any of its directors. These persons are those through whom the private domestic corporation or partnership is capable of action. 62 Jaime Pimentel is not the president, manager, secretary, cashier or director of petitioner corporation. Is he, as administrator of the two Haciendas, considered an agent of the corporation? The purpose of all rules for service of process on a corporation is to make it reasonably certain that the corporation will receive prompt and proper notice in an action against it. 63 Service must be made on a representative so integrated with the corporation as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal

papers served on him, 64 and bring home to the corporation notice of the filing of the action. 65Petitioner's evidence does not show the official duties of Jaime Pimentel as administrator of petitioner's haciendas. The evidence does not indicate whether Pimentel's duties is so integrated with the corporation that he would immediately realize his responsibilities and know what he should do with any legal papers served on him. At the time the notices were sent and the preliminary conference conducted, petitioner's principal place of business was listed in respondent DAR's records as "Soriano Bldg., Plaza Cervantes, Manila," 66 and "7th Flr. Cacho-Gonzales Bldg., 101 Aguirre St., Makati, Metro Manila." 67 Pimentel did not hold office at the principal place of business of petitioner. Neither did he exercise his functions in Plaza Cervantes, Manila nor in Cacho-Gonzales Bldg., Makati, Metro Manila. He performed his official functions and actually resided in the haciendas in Nasugbu, Batangas, a place over two hundred kilometers away from Metro Manila. Curiously, respondent DAR had information of the address of petitioner's principal place of business. The Notices of Acquisition over Haciendas Palico and Banilad were addressed to petitioner at its offices in Manila and Makati. These Notices were sent barely three to four months after Pimentel was notified of the preliminary conference. 68 Why respondent DAR chose to notify Pimentel instead of the officers of the corporation was not explained by the said respondent. Nevertheless, assuming that Pimentel was an agent of petitioner corporation, and the notices and letters of invitation were validly served on petitioner through him, there is no showing that Pimentel himself was duly authorized to attend the conference meeting with the MARO, BARC and LBP representatives and farmer beneficiaries for purposes of compulsory acquisition of petitioner's landholdings. Even respondent DAR's evidence does not indicate this authority. On the contrary, petitioner claims that it had no knowledge of the letter-invitation, hence, could not have given Pimentel the authority to bind it to whatever matters were discussed or agreed upon by the parties at the preliminary conference or public hearing. Notably, one year after Pimentel was informed of the preliminary conference, DAR A.O. No. 9, Series of 1990 was issued and this required that the Notice of Coverage must be sent "to the landowner concerned or his duly authorized representative." 69 Assuming further that petitioner was duly notified of the CARP coverage of its haciendas, the areas found actually subject to CARP were not properly identified before they were taken over by respondent DAR. Respondents insist that the lands were identified because they are all registered property

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and the technical description in their respective titles specifies their metes and bounds. Respondents admit at the same time, however, that not all areas in the haciendas were placed under the comprehensive agrarian reform program invariably by reason of elevation or character or use of the land. 70 The acquisition of the landholdings did not cover the entire expanse of the two haciendas, but only portions thereof. Hacienda Palico has an area of 1,024 hectares and only 688.7576 hectares were targetted for acquisition. Hacienda Banilad has an area of 1,050 hectares but only 964.0688 hectares were subject to CARP. The haciendas are not entirely agricultural lands. In fact, the various tax declarations over the haciendas describe the landholdings as "sugarland," and "forest, sugarland, pasture land, horticulture and woodland." 71 Under Section 16 of the CARL, the sending of the Notice of Acquisition specifically requires that the land subject to land reform be first identified. The two haciendas in the instant case cover vast tracts of land. Before Notices of Acquisition were sent to petitioner, however, the exact areas of the landholdings were not properly segregated and delineated. Upon receipt of this notice, therefore, petitioner corporation had no idea which portions of its estate were subject to compulsory acquisition, which portions it could rightfully retain, whether these retained portions were compact or contiguous, and which portions were excluded from CARP coverage. Even respondent DAR's evidence does not show that petitioner, through its duly authorized representative, was notified of any ocular inspection and investigation that was to be conducted by respondent DAR. Neither is there proof that petitioner was given the opportunity to at least choose and identify its retention area in those portions to be acquired compulsorily. The right of retention and how this right is exercised, is guaranteed in Section 6 of the CARL, viz: Sec. 6. Retention Limits. . . . . The right to choose the area to be retained, which shall be compact or contiguous, shall pertain to the landowner; Provided, however, That in case the area selected for retention by the landowner is tenanted, the tenant shall have the option to choose whether to remain therein or be a beneficiary in the same or another agricultural land with similar or comparable features. In case the tenant chooses to remain in the retained area, he shall be considered a leaseholder and shall lose his right to be a

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beneficiary under this Act. In case the tenant chooses to be a beneficiary in another agricultural land, he loses his right as a leaseholder to the land retained by the landowner. The tenant must exercise this option within a period of one (1) year from the time the landowner manifests his choice of the area for retention. Under the law, a landowner may retain not more than five hectares out of the total area of his agricultural land subject to CARP. The right to choose the area to be retained, which shall be compact or contiguous, pertains to the landowner. If the area chosen for retention is tenanted, the tenant shall have the option to choose whether to remain on the portion or be a beneficiary in the same or another agricultural land with similar or comparable features. C. The Voluntary Acquisition of Hacienda Caylaway Petitioner was also left in the dark with respect to Hacienda Caylaway, which was the subject of a Voluntary Offer to Sell (VOS). The VOS in the instant case was made on May 6, 1988, 72 before the effectivity of R.A. 6657 on June 15, 1988. VOS transactions were first governed by DAR Administrative Order No. 19, series of 1989, 73 and under this order, all VOS filed before June 15, 1988 shall be heard and processed in accordance with the procedure provided for in Executive Order No. 229, thus: III. All VOS transactions which are now pending before the DAR and for which no payment has been made shall be subject to the notice and hearing requirements provided in Administrative Order No. 12, Series of 1989, dated 26 July 1989, Section II, Subsection A, paragraph 3. All VOS filed before 15 June 1988, the date of effectivity of the CARL, shall be heard and processed in accordance with the procedure provided for in Executive Order No. 229. xxx xxx xxx. Sec. 9 of E.O. 229 provides: Sec. 9. Voluntary Offer to Sell. The government shall purchase all agricultural lands it deems productive and suitable to farmer cultivation voluntarily offered for sale to it

at a valuation determined in accordance with Section 6. Such transaction shall be exempt from the payment of capital gains tax and other taxes and fees. Executive Order 229 does not contain the procedure for the identification of private land as set forth in DAR A.O. No. 12, Series of 1989. Section 5 of E.O. 229 merely reiterates the procedure of acquisition in Section 16, R.A. 6657. In other words, the E.O. is silent as to the procedure for the identification of the land, the notice of coverage and the preliminary conference with the landowner, representatives of the BARC, the LBP and farmer beneficiaries. Does this mean that these requirements may be dispensed with regard to VOS filed before June 15, 1988? The answer is no. First of all, the same E.O. 229, like Section 16 of the CARL, requires that the land, landowner and beneficiaries of the land subject to agrarian reform be identified before the notice of acquisition should be issued. 74 Hacienda Caylaway was voluntarily offered for sale in 1989. The Hacienda has a total area of 867.4571 hectares and is covered by four (4) titles. In two separate Resolutions both dated January 12, 1989, respondent DAR, through the Regional Director, formally accepted the VOS over the two of these four titles. 75 The land covered by two titles has an area of 855.5257 hectares, but only 648.8544 hectares thereof fell within the coverage of R.A. 6657. 76 Petitioner claims it does not know where these portions are located. Respondent DAR, on the other hand, avers that surveys on the land covered by the four titles were conducted in 1989, and that petitioner, as landowner, was not denied participation therein, The results of the survey and the land valuation summary report, however, do not indicate whether notices to attend the same were actually sent to and received by petitioner or its duly authorized representative. 77 To reiterate, Executive Order No. 229 does not lay down the operating procedure, much less the notice requirements, before the VOS is accepted by respondent DAR. Notice to the landowner, however, cannot be dispensed with. It is part of administrative due process and is an essential requisite to enable the landowner himself to exercise, at the very least, his right of retention guaranteed under the CARL. III. The Conversion of the three Haciendas. It is petitioner's claim that the three haciendas are not subject to agrarian reform because they have been declared for tourism, not agricultural purposes. 78 In 1975, then President Marcos issued Proclamation No. 1520 declaring the municipality of Nasugbu, Batangas a tourist zone. Lands in Nasugbu, including the subject haciendas, were allegedly reclassified as

non-agricultural 13 years before the effectivity of R. A. No. 6657. 79 In 1993, the Regional Director for Region IV of the Department of Agriculture certified that the haciendas are not feasible and sound for agricultural development. 80 On March 20, 1992, pursuant to Proclamation No. 1520, the Sangguniang Bayan of Nasugbu, Batangas adopted Resolution No. 19 reclassifying certain areas of Nasugbu as non-agricultural. 81 This Resolution approved Municipal Ordinance No. 19, Series of 1992, the Revised Zoning Ordinance of Nasugbu 82 which zoning ordinance was based on a Land Use Plan for Planning Areas for New Development allegedly prepared by the University of the Philippines. 83Resolution No. 19 of the Sangguniang Bayan was approved by the Sangguniang Panlalawigan of Batangas on March 8, 1993. 84 Petitioner claims that proclamation No. 1520 was also upheld by respondent DAR in 1991 when it approved conversion of 1,827 hectares in Nasugbu into a tourist area known as the Batulao Resort Complex, and 13.52 hectares in Barangay Caylaway as within the potential tourist belt. 85 Petitioner present evidence before us that these areas are adjacent to the haciendas subject of this petition, hence, the haciendas should likewise be converted. Petitioner urges this Court to take cognizance of the conversion proceedings and rule accordingly. 6 We do not agree. Respondent DAR's failure to observe due process in the acquisition of petitioner's landholdings does not ipso facto give this Court the power to adjudicate over petitioner's application for conversion of its haciendas from agricultural to non-agricultural. The agency charged with the mandate of approving or disapproving applications for conversion is the DAR. At the time petitioner filed its application for conversion, the Rules of Procedure governing the processing and approval of applications for land use conversion was the DAR A.O. No. 2, Series of 1990. Under this A.O., the application for conversion is filed with the MARO where the property is located. The MARO reviews the application and its supporting documents and conducts field investigation and ocular inspection of the property. The findings of the MARO are subject to review and evaluation by the Provincial Agrarian Reform Officer (PARO). The PARO may conduct further field investigation and submit a supplemental report together with his recommendation to the Regional Agrarian Reform Officer (RARO) who shall review the same. For lands less than five hectares, the RARO shall approve or disapprove applications for conversion. For lands exceeding five hectares, the RARO shall evaluate the PARO Report and forward the records and his report to the Undersecretary for Legal Affairs. Applications

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over areas exceeding fifty hectares are approved or disapproved by the Secretary of Agrarian Reform. The DAR's mandate over applications for conversion was first laid down in Section 4 (j) and Section 5 (l) of Executive Order No. 129-A, Series of 1987 and reiterated in the CARL and Memorandum Circular No. 54, Series of 1993 of the Office of the President. The DAR's jurisdiction over applications for conversion is provided as follows: A. The Department of Agrarian Reform (DAR) is mandated to "approve or disapprove applications for conversion, restructuring or readjustment of agricultural lands into non-agricultural uses," pursuant to Section 4 (j) of Executive Order No. 129-A, Series of 1987. B. Sec. 5 (l) of E.O. 129-A, Series of 1987, vests in the DAR, exclusive authority to approve or disapprove applications for conversion of agricultural lands for residential, commercial, industrial and other land uses. C. Sec. 65 of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988, likewise empowers the DAR to authorize under certain conditions, the conversion of agricultural lands. D. Sec. 4 of Memorandum Circular No. 54, Series of 1993 of the Office of the President, provides that "action on applications for land use conversion on individual landholdings shall remain as the responsibility of the DAR, which shall utilize as its primary reference, documents on the comprehensive land use plans and accompanying ordinances passed upon and approved by the local government units concerned, together with the National Land Use Policy, pursuant to R.A. No. 6657 and E.O. No. 129-A. 87

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Applications for conversion were initially governed by DAR A.O. No. 1, Series of 1990 entitled "Revised Rules and Regulations Governing Conversion of Private Agricultural Lands and Non-Agricultural Uses," and DAR A.O. No. 2, Series of 1990 entitled "Rules of Procedure Governing the Processing and Approval of Applications for Land Use Conversion." These A.O.'s and other implementing guidelines, including Presidential issuances and national policies related to land use conversion have been consolidated in DAR A.O. No. 07, Series of 1997. Under this recent issuance, the guiding principle in land use conversion is: to preserve prime agricultural lands for food production while, at the same time, recognizing the need of the other sectors of society (housing, industry and commerce) for land, when coinciding with the objectives of the Comprehensive Agrarian Reform Law to promote social justice, industrialization and the optimum use of land as a national resource for public welfare. 88 "Land Use" refers to the manner of utilization of land, including its allocation, development and management. "Land Use Conversion" refers to the act or process of changing the current use of a piece of agricultural land into some other use as approved by the DAR. 89 The conversion of agricultural land to uses other than agricultural requires field investigation and conferences with the occupants of the land. They involve factual findings and highly technical matters within the special training and expertise of the DAR. DAR A.O. No. 7, Series of 1997 lays down with specificity how the DAR must go about its task. This time, the field investigation is not conducted by the MARO but by a special task force, known as the Center for Land Use Policy Planning and Implementation (CLUPPI-DAR Central Office). The procedure is that once an application for conversion is filed, the CLUPPI prepares the Notice of Posting. The MARO only posts the notice and thereafter issues a certificate to the fact of posting. The CLUPPI conducts the field investigation and dialogues with the applicants and the farmer beneficiaries to ascertain the information necessary for the processing of the application. The Chairman of the CLUPPI deliberates on the merits of the investigation report and recommends the appropriate action. This recommendation is transmitted to the Regional Director, thru the Undersecretary, or Secretary of Agrarian Reform. Applications involving more than fifty hectares are approved or disapproved by the Secretary. The procedure does not end with the Secretary, however. The Order provides that the decision of the Secretary may be appealed to the Office of the President or the Court of Appeals, as the case may be, viz:

Appeal from the decision of the Undersecretary shall be made to the Secretary, and from the Secretary to the Office of the President or the Court of Appeals as the case may be. The mode of appeal/motion for reconsideration, and the appeal fee, from Undersecretary to the Office of the Secretary shall be the same as that of the Regional Director to the Office of the Secretary. 90 Indeed, the doctrine of primary jurisdiction does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. 91Respondent DAR is in a better position to resolve petitioner's application for conversion, being primarily the agency possessing the necessary expertise on the matter. The power to determine whether Haciendas Palico, Banilad and Caylaway are non-agricultural, hence, exempt from the coverage of the CARL lies with the DAR, not with this Court. Finally, we stress that the failure of respondent DAR to comply with the requisites of due process in the acquisition proceedings does not give this Court the power to nullify the CLOA's already issued to the farmer beneficiaries. To assume the power is to short-circuit the administrative process, which has yet to run its regular course. Respondent DAR must be given the chance to correct its procedural lapses in the acquisition proceedings. In Hacienda Palico alone, CLOA's were issued to 177 farmer beneficiaries in 1993. 92 Since then until the present, these farmers have been cultivating their lands. 93 It goes against the basic precepts of justice, fairness and equity to deprive these people, through no fault of their own, of the land they till. Anyhow, the farmer beneficiaries hold the property in trust for the rightful owner of the land. IN VIEW WHEREOF, the petition is granted in part and the acquisition proceedings over the three haciendas are nullified for respondent DAR's failure to observe due process therein. In accordance with the guidelines set forth in this decision and the applicable administrative procedure, the case is hereby remanded to respondent DAR for proper acquisition proceedings and determination of petitioner's application for conversion. SO ORDERED. Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Purisima, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur.

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Melo, J., please see concurring and dissenting opinion. Ynares-Santiago, J., concurring and dissenting opinion. Kapunan, J., I join in the concurring and dissenting opinion of Justice C. Y. Santiago. Quisumbing, J., I join the in the concurring and dissenting opinion of J. Santiago. Pardo, J., I join the concurring and dissenting opinion of J. Santiago. Separate Opinions MELO, J., concurring and dissenting opinion; I concur in the ponencia of Justice Ynares-Santiago, broad and exhaustive as it is in its treatment of the issues. However, I would like to call attention to two or three points which I believe are deserving of special emphasis.

Agriculture that the subject landed estates are not feasible and economically viable for agriculture, based on the examination of their slope, terrain, depth, irrigability, fertility, acidity, and erosion considerations. I agree with the ponencia's rejection of respondent's argument that agriculture is not incompatible and may be enforced in an area declared by law as a tourist zone. Agriculture may contribute to the scenic views and variety of countryside profiles but the issue in this case is not the beauty of ricefields, cornfields, or coconut groves. May land found to be nonagricultural and declared as a tourist zone by law, be withheld from the owner's efforts to develop it as such? There are also plots of land within Clark Field and other commercial-industrial zones capable of cultivation but this does not subject them to compulsory land reform. It is the best use of the land for tourist purposes, free trade zones, export processing or the function to which it is dedicated that is the determining factor. Any cultivation is temporary and voluntary. The other point I wish to emphasize is DAR's failure to follow its own administrative orders and regulations in this case.

The contradictions between DAR administrative orders and its actions in the The apparent incongruity or shortcoming in the petition is DAR's disregard of present case may be summarized: a law which settled the non-agricultural nature of the property as early as 1975. Related to this are the inexplicable contradictions between DAR's own 1. DAR Administrative Order No. 6, Series of 1994, subscribes to official issuances and its challenged actuations in this particular case. Department of Justice Opinion No. 44, Series of 1990 that lands classified as non-agricultural prior to June 15, 1988 when the CARP Law was passed Presidential Proclamation No. 1520 has the force and effect of law unless are exempt from its coverage. By what right can DAR now ignore its own repealed. This law declared Nasugbu, Batangas as a tourist zone. Guidelines in this case of land declared as forming a tourism zone since 1975? Considering the new and pioneering stage of the tourist industry in 1975, it can safely be assumed that Proclamation 1520 was the result of empirical 2. DAR Order dated January 22, 1991 granted the conversion of the study and careful determination, not political or extraneous pressures. It adjacent and contiguous property of Group Developers and Financiers, Inc. cannot be disregarded by DAR or any other department of Government. (GDFI) into the Batulao Tourist Resort. Why should DAR have a contradictory stance in the adjoining property of Roxas and Co., Inc. found In Province of Camarines Sur, et al. vs. Court of Appeals, et al. (222 SCRA to be similar in nature and declared as such? 173, 182 [1993]), we ruled that local governments need not obtain the approval of DAR to reclassify lands from agricultural to non-agricultural use. 3. DAR Exemption Order, Case No. H-9999-050-97 dated May 17, 1999 In the present case, more than the exercise of that power, the local only recently exempted 13.5 hectares of petitioner's property also found in governments were merely putting into effect a law when they enacted the Caylaway together, and similarly situated, with the bigger parcel (Hacienda zoning ordinances in question. Caylaway) subject of this petition from CARL coverage. To that extent, it admits that its earlier blanket objections are unfounded. Any doubts as to the factual correctness of the zoning reclassifications are answered by the February 2, 1993 certification of the Department of

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4. DAR Administrative Order No. 3, Series of 1996 identifies the land outside pending cases still undecided by DAR. There should be no question over of CARP coverage as: the CLOAs having been improperly issued, for which reason, their cancellation is warranted. (a) Land found by DAR as no longer suitable for agriculture and which cannot be given appropriate valuation by the Land Bank; YNARES-SANTIAGO, J., concurring and dissenting opinion; (b) Land where DAR has already issued a conversion order; I concur in the basic premises of the majority opinion. However, I dissent in its final conclusions and the dispositive portion. (c) Land determined as exempt under DOJ Opinions Nos. 44 and 181; or With all due respect, the majority opinion centers on procedure but unfortunately ignores the substantive merits which this procedure should (d) Land declared for non-agricultural use by unavoidably sustain. Presidential Proclamation. The assailed decision of the Court of Appeals had only one basic reason for It is readily apparent that the land in this case falls under all the above its denial of the petition, i.e., the application of the doctrine of noncategories except the second one. DAR is acting contrary to its own rules exhaustion of administrative remedies. This Court's and regulations. majority ponencia correctly reverses the Court of Appeals on this issue. The ponencia now states that the issuance of CLOA's to farmer beneficiaries deprived petitioner Roxas & Co. of its property without just I should add that DAR has affirmed in a Rejoinder (August 20, 1999) the compensation. It rules that the acts of the Department of Agrarian Reform issuance and effectivity of the above administrative orders. are patently illegal. It concludes that petitioner's rights were violated, and DAR Administrative Order No. 3, Series of 1996, Paragraph 2 of Part II, Part thus to require it to exhaust administrative remedies before DAR was not a plain, speedy, and adequate remedy. Correctly, petitioner sought immediate III and Part IV outlines the procedure for reconveyance of land where redress from the Court of Appeals to this Court. CLOAs have been improperly issued. The procedure is administrative, detailed, simple, and speedy. Reconveyance is implemented by DAR which treats the procedure as "enshrined . . . in Section 50 of Republic Act No. 6657" (Respondent's Rejoinder). Administrative Order No. 3, Series of 1996 shows there are no impediments to administrative or judicial cancellations of CLOA's improperly issued over exempt property. Petitioner further submits, and this respondent does not refute, that 25 CLOAs covering 3,338 hectares of land owned by the Manila Southcoast Development Corporation also found in Nasugbu, Batangas, have been cancelled on similar grounds as those in the case at bar. The CLOAs in the instant case were issued over land declared as nonagricultural by a presidential proclamation and confirmed as such by actions of the Department of Agriculture and the local government units concerned. The CLOAs were issued over adjoining lands similarly situated and of like nature as those declared by DAR as exempt from CARP coverage. The CLOAs were surprisingly issued over property which were the subject of However, I respectfully dissent from the judgment which remands the case to the DAR. If the acts of DAR are patently illegal and the rights of Roxas & Co. violated, the wrong decisions of DAR should be reversed and set aside. It follows that the fruits of the wrongful acts, in this case the illegally issued CLOAs, must be declared null and void. Petitioner Roxas & Co. Inc. is the registered owner of three (3) haciendas located in Nasugbu, Batangas, namely: Hacienda Palico comprising of an area of 1,024 hectares more or less, covered by Transfer Certificate of Title No. 985 (Petition, Annex "G"; Rollo, p. 203); Hacienda Banilad comprising an area of 1,050 hectares and covered by TCT No. 924 (Petition, Annex "I"; Rollo, p. 205); and Hacienda Caylaway comprising an area of 867.4571 hectares and covered by TCT Nos. T-44655 (Petition, Annex "O"; Rollo, p. 216), T-44662 (Petition, Annex "P"; Rollo, p. 217), T-44663 (Petition, Annex "Q"; Rollo, p. 210) and T-44664 (Petition, Annex "R"; Rollo, p. 221).

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Sometime in 1992 and 1993, petitioner filed applications for conversion with DAR. Instead of either denying or approving the applications, DAR ignored and sat on them for seven (7) years. In the meantime and in acts of deceptive lip-service, DAR excluded some small and scattered lots in Palico and Caylaway from CARP coverage. The majority of the properties were parceled out to alleged farmer-beneficiaries, one at a time, even as petitioner's applications were pending and unacted upon. The majority ponencia cites Section 16 of Republic Act No. 6657 on the procedure for acquisition of private lands. The ponencia cites the detailed procedures found in DAR Administrative Order No. 12, Series of 1989 for the identification of the land to be acquired. DAR did not follow its own prescribed procedures. There was no valid issuance of a Notice of Coverage and a Notice of Acquisition. The procedure on the evaluation and determination of land valuation, the duties of the Municipal Agrarian Reform Officer (MARO), the Barangay Agrarian Reform Committee (BARC), Provincial Agrarian Reform Officer (PARO) and the Bureau of Land Acquisition and Distribution (BLAD), the documentation and reports on the step-by-step process, the screening of prospective Agrarian Reform Beneficiaries (ARBs), the land survey and segregation survey plan, and other mandatory procedures were not followed. The landowner was not properly informed of anything going on. Equally important, there was no payment of just compensation. I agree with the ponencia that due process was not observed in the taking of petitioner's properties. Since the DAR did not validly acquire ownership over the lands, there was no acquired property to validly convey to any beneficiary. The CLOAs were null and void from the start. Petitioner states that the notices of acquisition were sent by respondents by ordinary mail only, thereby disregarding the procedural requirement that notices be served personally or by registered mail. This is not disputed by respondents, but they allege that petitioner changed its address without notifying the DAR. Notably, the procedure prescribed speaks of only two modes of service of notices of acquisition personal service and service by registered mail. The non-inclusion of other modes of service can only mean that the legislature intentionally omitted them. In other words, service of a notice of acquisition other than personally or by registered mail is not valid. Casus omissus pro omisso habendus est. The reason is obvious. Personal service and service by registered mail are methods that ensure the

receipt by the addressee, whereas service by ordinary mail affords no reliable proof of receipt. Since it governs the extraordinary method of expropriating private property, the CARL should be strictly construed. Consequently, faithful compliance with its provisions, especially those which relate to the procedure for acquisition of expropriated lands, should be observed. Therefore, the service by respondent DAR of the notices of acquisition to petitioner by ordinary mail, not being in conformity with the mandate of R.A. 6657, is invalid and ineffective. With more reason, the compulsory acquisition of portions of Hacienda Palico, for which no notices of acquisition were issued by the DAR, should be declared invalid. The entire ponencia, save for the last six (6) pages, deals with the mandatory procedures promulgated by law and DAR and how they have not been complied with. There can be no debate over the procedures and their violation. However, I respectfully dissent in the conclusions reached in the last six pages. Inspite of all the violations, the deprivation of petitioner's rights, the non-payment of just compensation, and the consequent nullity of the CLOAs, the Court is remanding the case to the DAR for it to act on the petitioner's pending applications for conversion which have been unacted upon for seven (7) years. Petitioner had applications for conversion pending with DAR. Instead of deciding them one way or the other, DAR sat on the applications for seven (7) years. At that same time it rendered the applications inutile by distributing CLOAs to alleged tenants. This action is even worse than a denial of the applications because DAR had effectively denied the application against the applicant without rendering a formal decision. This kind of action preempted any other kind of decision except denial. Formal denial was even unnecessary. In the case of Hacienda Palico, the application was in fact denied on November 8, 1993. There are indisputable and established factors which call for a more definite and clearer judgment. The basic issue in this case is whether or not the disputed property is agricultural in nature and covered by CARP. That petitioner's lands are nonagricultural in character is clearly shown by the evidence presented by

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petitioner, all of which were not disputed by respondents. The disputed property is definitely not subject to CARP. The nature of the land as non-agricultural has been resolved by the agencies with primary jurisdiction and competence to decide the issue, namely (1) a Presidential Proclamation in 1975; (2) Certifications from the Department of Agriculture; (3) a Zoning Ordinance of the Municipality of Nasugbu, approved by the Province of Batangas; and (4) by clear inference and admissions, Administrative Orders and Guidelines promulgated by DAR itself. The records show that on November 20, 1975 even before the enactment of the CARP law, the Municipality of Nasugbu, Batangas was declared a "tourist zone" in the exercise of lawmaking power by then President Ferdinand E. Marcos under Proclamation No. 1520 (Rollo, pp. 122-123). This Presidential Proclamation is indubitably part of the law of the land. On 20 March 1992 the Sangguniang Bayan of Nasugbu promulgated its Resolution No. 19, a zonification ordinance (Rollo, pp. 124-200), pursuant to its powers under Republic Act No. 7160, i.e., the Local Government Code of 1991. The municipal ordinance was approved by the Sangguniang Panlalawigan of Batangas (Rollo, p. 201). Under this enactment, portions of the petitioner's properties within the municipality were re-zonified as intended and appropriate for non-agricultural uses. These two issuances, together with Proclamation 1520, should be sufficient to determine the nature of the land as non-agricultural. But there is more. The records also contain a certification dated March 1, 1993 from the Director of Region IV of the Department of Agriculture that the disputed lands are no longer economically feasible and sound for agricultural purposes (Rollo, p. 213). DAR itself impliedly accepted and determined that the municipality of Nasugbu is non-agricultural when it affirmed the force and effect of Presidential Proclamation 1520. In an Order dated January 22, 1991, DAR granted the conversion of the adjoining and contiguous landholdings owned by Group Developer and Financiers, Inc. in Nasugbu pursuant to the Presidential Proclamation. The property alongside the disputed properties is now known as "Batulao Resort Complex". As will be shown later, the conversion of various other properties in Nasugbu has been ordered by DAR, including a property disputed in this petition, Hacienda Caylaway.

Inspite of all the above, the Court of Appeals concluded that the lands comprising petitioner's haciendas are agricultural, citing, among other things, petitioner's acts of voluntarily offering Hacienda Caylaway for sale and applying for conversion its lands from agricultural to non-agricultural. Respondents, on the other hand, did not only ignore the administrative and executive decisions. It also contended that the subject land should be deemed agricultural because it is neither residential, commercial, industrial or timber. The character of a parcel of land, however, is not determined merely by a process of elimination. The actual use which the land is capable of should be the primordial factor. RA 6657 explicitly limits its coverage thus: The Comprehensive Agrarian Reform Law of 1998 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture. More specifically, the following lands are covered by the Comprehensive Agrarian Reform Program: (a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into account, ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain; (b) All lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraph; (c) All other lands owned by the Government devoted to or suitable for agriculture; and (d) All private lands devoted to or suitable for a agriculture regardless of the agricultural products raised or

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that can be raised thereon." (RA 6657, Sec. 4; emphasis provided)

(Order dated May 17, 1999; Annex "D" of Petitioner's Manifestation), on these grounds.

In Luz Farms v. Secretary of the Department of Agrarian Reform and Natalia Furthermore, and perhaps more importantly, the subject lands are within an Realty, Inc. v. Department of Agrarian Reform, this Court had occasion to area declared in 1975 by Presidential Proclamation No. 1520 to be part of a rule that agricultural lands are only those which are arable and suitable. tourist zone. This determination was made when the tourism prospects of the area were still for the future. The studies which led to the land classification were relatively freer from pressures and, therefore, more It is at once noticeable that the common factor that classifies land use as objective and open-minded. Respondent, however, contends that agriculture agricultural, whether it be public or private land, is its suitability for is not incompatible with the lands' being part of a tourist zone since agriculture. In this connection, RA 6657 defines "agriculture" as follows: "agricultural production, by itself, is a natural asset and, if properly set, can command tremendous aesthetic value in the form of scenic views and Agriculture, Agricultural Enterprises or Agricultural Activity variety of countryside profiles." (Comment,Rollo, 579). means the cultivation of the soil, planting of crops, growing of fruit trees, raising of livestock, poultry or fish, including the harvesting of such farm products, and other farm activities, and practices performed by a farmer in conjunction with such farming operations done by persons whether natural or juridical. (RA 6657, sec. 3[b]) In the case at bar, petitioner has presented certifications issued by the Department of Agriculture to the effect that Haciendas Palico, Banilad and Caylaway are not feasible and economically viable for agricultural development due to marginal productivity of the soil, based on an examination of their slope, terrain, depth, irrigability, fertility, acidity, and erosion factors (Petition, Annex "L", Rollo, p. 213; Annex "U", Rollo, p. 228). This finding should be accorded respect considering that it came from competent authority, said Department being the agency possessed with the necessary expertise to determine suitability of lands to agriculture. The DAR Order dated January 22, 1991 issued by respondent itself stated that the adjacent land now known as the Batulao Resort Complex is hilly, mountainous, and with long and narrow ridges and deep gorges. No permanent sites are planted. Cultivation is by kaingin method. This confirms the findings of the Department of Agriculture. Parenthetically, the foregoing finding of the Department of Agriculture also explains the validity of the reclassification of petitioner's lands by the Sangguniang Bayan of Nasugbu, Batangas, pursuant to Section 20 of the Local Government Code of 1991. It shows that the condition imposed by respondent Secretary of Agrarian Reform on petitioner for withdrawing its voluntary offer to sell Hacienda Caylaway, i.e., that the soil be unsuitable for agriculture, has been adequately met. In fact, the DAR in its Order in Case No. A-9999-050-97, involving a piece of land also owned by petitioner and likewise located in Caylaway, exempted it from the coverage of CARL The contention is untenable. Tourist attractions are not limited to scenic landscapes and lush greeneries. Verily, tourism is enhanced by structures and facilities such as hotels, resorts, rest houses, sports clubs and golf courses, all of which bind the land and render it unavailable for cultivation. As aptly described by petitioner: The development of resorts, golf courses, and commercial centers is inconsistent with agricultural development. True, there can be limited agricultural production within the context of tourism development. However, such small scale farming activities will be dictated by, and subordinate to the needs or tourism development. In fact, agricultural use of land within Nasugbu may cease entirely if deemed necessary by the Department of Tourism (Reply, Rollo, p. 400). The lands subject hereof, therefore, are non-agricultural. Hence, the voluntary offer to sell Hacienda Caylaway should not be deemed an admission that the land is agricultural. Rather, the offer was made by petitioner in good faith, believing at the time that the land could still be developed for agricultural production. Notably, the offer to sell was made as early as May 6, 1988, before the soil thereon was found by the Department of Agriculture to be unsuitable for agricultural development (the Certifications were issued on 2 February 1993 and 1 March 1993). Petitioner's withdrawal of its voluntary offer to sell, therefore, was not borne out of a whimsical or capricious change of heart. Quite simply, the land turned out to be outside of the coverage of the CARL, which by express provision of RA 6657, Section 4, affects only public and private agricultural lands. As earlier stated, only on May 17, 1999, DAR Secretary Horacio Morales, Jr. approved the application for a lot in Caylaway, also owned by

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petitioner, and confirmed the seven (7) documentary evidences proving the Caylaway area to be non-agricultural (DAR Order dated 17 May 1999, in Case No. A-9999-050-97, Annex "D" Manifestation). The DAR itself has issued administrative circulars governing lands which are outside of CARP and may not be subjected to land reform. Administrative Order No. 3, Series of 1996 declares in its policy statement what landholdings are outside the coverage of CARP. The AO is explicit in providing that such non-covered properties shall be reconveyed to the original transferors or owners. These non-covered lands are: a. Land, or portions thereof, found to be no longer suitable for agriculture and, therefore, could not be given appropriate valuation by the Land Bank of the Philippines (LBP); b. Those were a Conversion Order has already been issued by the DAR allowing the use of the landholding other than for agricultural purposes in accordance with Section 65 of R.A. No. 6657 and Administrative Order No. 12, Series of 1994; c. Property determined to be exempted from CARP coverage pursuant to Department of Justice Opinion Nos. 44 and 181; or d. Where a Presidential Proclamation has been issued declaring the subject property for certain uses other than agricultural. (Annex "F", Manifestation dated July 23, 1999) The properties subject of this Petition are covered by the first, third, and fourth categories of the Administrative Order. The DAR has disregarded its own issuances which implement the law. To make the picture clearer, I would like to summarize the law, regulations, ordinances, and official acts which show beyond question that the disputed property is non-agricultural, namely:

(a) The Law. Proclamation 1520 dated November 20, 1975 is part of the law of the land. It declares the area in and around Nasugbu, Batangas, as a Tourist Zone. It has not been repealed, and has in fact been used by DAR to justify conversion of other contiguous and nearby properties of other parties. (b) Ordinances of Local Governments. Zoning ordinance of the Sangguniang Bayan of Nasugbu, affirmed by the Sangguniang Panlalawigan of Batangas, expressly defines the property as tourist, not agricultural. The power to classify its territory is given by law to the local governments. (c) Certification of the Department of Agriculture that the property is not suitable and viable for agriculture. The factual nature of the land, its marginal productivity and noneconomic feasibility for cultivation, are described in detail. (d) Acts of DAR itself which approved conversion of contiguous or adjacent land into the Batulao Resorts Complex. DAR described at length the non-agricultural nature of Batulao and of portion of the disputed property, particularly Hacienda Caylaway. (e) DAR Circulars and Regulations. DAR Administrative Order No. 6, Series of 1994 subscribes to the Department of Justice opinion that the lands classified as non-agricultural before the CARP Law, June 15, 1988, are exempt from CARP. DAR Order dated January 22, 1991 led to the Batulao Tourist Area. DAR Order in Case No. H-9999-05097, May 17, 1999, exempted 13.5 hectares of Caylaway, similarly situated and of the same nature as Batulao, from coverage. DAR Administrative Order No. 3, Series of 1996, if followed, would clearly exclude subject property from coverage. As earlier shown, DAR has, in this case, violated its own circulars, rules and regulations. In addition to the DAR circulars and orders which DAR itself has not observed, the petitioner has submitted a municipal map of Nasugbu, Batangas (Annex "E", Manifestation dated July 23, 1999). The geographical

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location of Palico, Banilad, and Caylaway in relation to the GDFI property, now Batulao Tourist Resort, shows that the properties subject of this case are equally, if not more so, appropriate for conversion as the GDFI resort. Petitioner's application for the conversion of its lands from agricultural to non-agricultural was meant to stop the DAR from proceeding with the compulsory acquisition of the lands and to seek a clear and authoritative declaration that said lands are outside of the coverage of the CARL and can not be subjected to agrarian reform. Petitioner assails respondent's refusal to convert its lands to non-agricultural use and to recognize Presidential Proclamation No. 1520, stating that respondent DAR has not been consistent in its treatment of applications of this nature. It points out that in the other case involving adjoining lands in Nasugbu, Batangas, respondent DAR ordered the conversion of the lands upon application of Group Developers and Financiers, Inc. Respondent DAR, in that case, issued an Order dated January 22, 1991 denying the motion for reconsideration filed by the farmers thereon and finding that: In fine, on November 27, 1975, or before the movants filed their instant motion for reconsideration, then President Ferdinand E. Marcos issued Proclamation No. 1520, declaring the municipalities of Maragondon and Ternate in the province of Cavite and the municipality of Nasugbu in the province of Batangas as tourist zone. Precisely, the landholdings in question are included in such proclamation. Up to now, this office is not aware that said issuance has been repealed or amended (Petition, Annex "W";Rollo, p. 238). The DAR Orders submitted by petitioner, and admitted by DAR in its Rejoinder (Rejoinder of DAR dated August 20, 1999), show that DAR has been inconsistent to the extent of being arbitrary. Apart from the DAR Orders approving the conversion of the adjoining property now called Batulao Resort Complex and the DAR Order declaring parcels of the Caylaway property as not covered by CARL, a major Administrative Order of DAR may also be mentioned. The Department of Justice in DOJ Opinion No. 44 dated March 16, 1990 (Annex "A" of Petitioner's Manifestation) stated that DAR was given authority to approve land conversions only after June 15, 1988 when RA

6657, the CARP Law, became effective. Following the DOJ Opinion, DAR issued its AO No. 06, Series of 1994 providing for the Guidelines on Exemption Orders (Annex "B", Id.). The DAR Guidelines state that lands already classified as non-agricultural before the enactment of CARL are exempt from its coverage. Significantly, the disputed properties in this case were classified as tourist zone by no less than a Presidential Proclamation as early as 1975, long before 1988. The above, petitioner maintains, constitute unequal protection of the laws. Indeed, the Constitution guarantees that "(n)o 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" (Constitution, Art. III, Sec. 1). Respondent DAR, therefore, has no alternative but to abide by the declaration in Presidential Proclamation 1520, just as it did in the case of Group Developers and Financiers, Inc., and to treat petitioners' properties in the same way it did the lands of Group Developers, i.e., as part of a tourist zone not suitable for agriculture. On the issue of non-payment of just compensation which results in a taking of property in violation of the Constitution, petitioner argues that the opening of a trust account in its favor did not operate as payment of the compensation within the meaning of Section 16 (e) of RA 6657. In Land Bank of the Philippines v. Court of Appeals (249 SCRA 149, at 157 [1995]), this Court struck down as null and void DAR Administrative Circular No. 9, Series of 1990, which provides for the opening of trust accounts in lieu of the deposit in cash or in bonds contemplated in Section 16 (e) of RA 6657. It is very explicit therefrom (Section 16 [e]) that the deposit must be made only in "cash" or in "LBP bonds." Nowhere does it appear nor can it be inferred that the deposit can be made in any other form. If it were the intention to include a "trust account" among the valid modes of deposit, that should have been made express, or at least, qualifying words ought to have appeared from which it can be fairly deduced that a "trust account" is allowed. In sum, there is no ambiguity in Section 16(e) of RA 6657 to warrant an expanded construction of the term "deposit." xxx xxx xxx In the present suit, the DAR clearly overstepped the limits of its powers to enact rules and regulations when it issued Administrative Circular No. 9. There is no basis in allowing

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the opening of a trust account in behalf of the landowner as compensation for his property because, as heretofore discussed, section 16(e) of RA 6657 is very specific that the deposit must be made only in "cash" or in "LBP bonds." In the same vein, petitioners cannot invoke LRA Circular Nos. 29, 29-A and 54 because these implementing regulations cannot outweigh the clear provision of the law. Respondent court therefore did not commit any error in striking down Administrative Circular No. 9 for being null and void.

This is untenable. Laws may be given retroactive effect on constitutional considerations, where the prospective application would result in a violation of a constitutional right. In the case at bar, the expropriation of petitioner's lands was effected without a valid payment of just compensation, thus violating the Constitutional mandate that "(p)rivate property shall not be taken for public use without just compensation" (Constitution, Art. III, Sec. 9). Hence, to deprive petitioner of the benefit of the Land Bank ruling on the mere expedient that it came later than the actual expropriation would be repugnant to petitioner's fundamental rights.

There being no valid payment of just compensation, title to petitioner's The controlling last two (2) pages of the ponencia state: landholdings cannot be validly transferred to the Government. A close scrutiny of the procedure laid down in Section 16 of RA 6657 shows the Finally, we stress that the failure of respondent DAR to clear legislative intent that there must first be payment of the fair value of the comply with the requisites of due process in the acquisition land subject to agrarian reform, either directly to the affected landowner or proceedings does not give this Court the power to nullify the by deposit of cash or LBP bonds in the DAR-designated bank, before the CLOA's already issued to the farmer beneficiaries. To DAR can take possession of the land and request the register of deeds to assume the power is to short-circuit the administrative issue a transfer certificate of title in the name of the Republic of the process, which has yet to run its regular course. Respondent Philippines. This is only proper inasmuch as title to private property can only DAR must be given the chance to correct its procedural be acquired by the government after payment of just compensation lapses in the acquisition proceedings. In Hacienda Palico In Association of Small Landowners in the Philippines v. Secretary of alone, CLOA's were issued to 177 farmer beneficiaries in Agrarian Reform(175 SCRA 343, 391 [1989]), this Court held: 1993. Since then until the present, these farmers have been cultivating their lands. It goes against the basic precepts of The CARP Law, for its part, conditions the transfer of justice, fairness and equity to deprive these people, through possession and ownership of the land to the government on no fault of their own, of the land they till. Anyhow, the farmer receipt of the landowner of the corresponding payment or beneficiaries hold the property in trust for the rightful owner the deposit by the DAR of the compensation in cash or LBP of the land. bonds with an accessible bank. Until then, title also remains with the landowner. No outright change of ownership is I disagree with the view that this Court cannot nullify illegally issued CLOA's contemplated either. but must ask the DAR to first reverse and correct itself. Necessarily, the issuance of the CLOAs by respondent DAR on October 30, 1993 and their distribution to farmer-beneficiaries were illegal inasmuch as no valid payment of compensation for the lands was as yet effected. By law, Certificates of Land Ownership Award are issued only to the beneficiaries after the DAR takes actual possession of the land (RA 6657, Sec. 24), which in turn should only be after the receipt by the landowner of payment or, in case of rejection or no response from the landowner, after the deposit of the compensation for the land in cash or in LBP bonds (RA 6657, Sec. 16[e]). Respondents argue that the Land Bank ruling should not be made to apply to the compulsory acquisition of petitioner's landholdings in 1993, because it occurred prior to the promulgation of the said decision (October 6, 1995). Given the established facts, there was no valid transfer of petitioner's title to the Government. This being so, there was also no valid title to transfer to third persons; no basis for the issuance of CLOAs. Equally important, CLOAs do not have the nature of Torrens Title. Administrative cancellation of title is sufficient to invalidate them. The Court of Appeals said so in its Resolution in this case. It stated: Contrary to the petitioner's argument that issuance of CLOAs to the beneficiaries prior to the deposit of the offered price

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constitutes violation of due process, it must be stressed that the mere issuance of the CLOAs does not vest in the farmer/grantee ownership of the land described therein. At most the certificate merely evidences the government's recognition of the grantee as the party qualified to avail of the statutory mechanisms for the acquisition of ownership of the land. Thus failure on the part of the farmer/grantee to comply with his obligations is a ground for forfeiture of his certificate of transfer. Moreover, where there is a finding that the property is indeed not covered by CARP, then reversion to the landowner shall consequently be made, despite issuance of CLOAs to the beneficiaries. (Resolution dated January 17, 1997, p. 6) DAR Administrative Order 03, Series of 1996 (issued on August 8, 1996; Annex "F" of Petitioner's Manifestation) outlines the procedure for the reconveyance to landowners of properties found to be outside the coverage of CARP. DAR itself acknowledges that they can administratively cancel CLOAs if found to be erroneous. From the detailed provisions of the Administrative Order, it is apparent that there are no impediments to the administrative cancellation of CLOAs improperly issued over exempt properties. The procedure is followed all over the country. The DAR Order spells out that CLOAs are not Torrens Titles. More so if they affect land which is not covered by the law under which they were issued. In its Rejoinder, respondent DAR states: 3.2. And, finally, on the authority of DAR/DARAB to cancel erroneously issued Emancipation Patents (EPs) or Certificate of Landownership Awards (CLOAs), same is enshrined, it is respectfully submitted, in Section 50 of Republic Act No. 6657. In its Supplemental Manifestation, petitioner points out, and this has not been disputed by respondents, that DAR has also administratively cancelled twenty five (25) CLOAs covering Nasugbu properties owned by the Manila Southcoast Development Corporation near subject Roxas landholdings. These lands were found not suitable for agricultural purposes because of soil and topographical characteristics similar to those of the disputed properties in this case. The former DAR Secretary, Benjamin T. Leong, issued DAR Order dated January 22, 1991 approving the development of property adjacent and

contiguous to the subject properties of this case into the Batulao Tourist Resort. Petitioner points out that Secretary Leong, in this Order, has decided that the land 1. Is, as contended by the petitioner GDFI "hilly, mountainous, and characterized by poor soil condition and nomadic method of cultivation, hence not suitable to agriculture." 2. Has as contiguous properties two haciendas of Roxas y Cia and found by Agrarian Reform Team Leader Benito Viray to be "generally rolling, hilly and mountainous and strudded (sic) with long and narrow ridges and deep gorges. Ravines are steep grade ending in low dry creeks." 3. Is found in an. area where "it is quite difficult to provide statistics on rice and corn yields because there are no permanent sites planted. Cultivation is by Kaingin Method." 4. Is contiguous to Roxas Properties in the same area where "the people entered the property surreptitiously and were difficult to stop because of the wide area of the two haciendas and that the principal crop of the area is sugar . . .." (emphasis supplied). I agree with petitioner that under DAR AO No. 03, Series of 1996, and unlike lands covered by Torrens Titles, the properties falling under improperly issued CLOAs are cancelled by mere administrative procedure which the Supreme Court can declare in cases properly and adversarially submitted for its decision. If CLOAs can under the DAR's own order be cancelled administratively, with more reason can the courts, especially the Supreme Court, do so when the matter is clearly in issue. With due respect, there is no factual basis for the allegation in the motion for intervention that farmers have been cultivating the disputed property. The property has been officially certified as not fit for agriculture based on slope, terrain, depth, irrigability, fertility, acidity, and erosion. DAR, in its Order dated January 22, 1991, stated that "it is quite difficult to provide statistics on rice and corn yields (in the adjacent property) because there are no permanent sites planted. Cultivation is by kaingin method." Any allegations of cultivation, feasible and viable, are therefore falsehoods.

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The DAR Order on the adjacent and contiguous GDFI property states that "(T)he people entered the property surreptitiously and were difficult to stop . . .." The observations of Court of Appeals Justices Verzola and Magtolis in this regard, found in their dissenting opinion (Rollo, p. 116), are relevant: 2.9 The enhanced value of land in Nasugbu, Batangas, has attracted unscrupulous individuals who distort the spirit of the Agrarian Reform Program in order to turn out quick profits. Petitioner has submitted copies of CLOAs that have been issued to persons other than those who were identified in the Emancipation Patent Survey Profile as legitimate Agrarian Reform beneficiaries for particular portions of petitioner's lands. These persons to whom the CLOAs were awarded, according to petitioner, are not and have never been workers in petitioner's lands. Petitioners say they are not even from Batangas but come all the way from Tarlac. DAR itself is not unaware of the mischief in the implementation of the CARL in some areas of the country, including Nasugbu. In fact, DAR published a "WARNING TO THE PUBLIC" which appeared in the Philippine Daily Inquirer of April 15, 1994 regarding this malpractice. 2.10 Agrarian Reform does not mean taking the agricultural property of one and giving it to another and for the latter to unduly benefit therefrom by subsequently "converting" the same property into non-agricultural purposes. 2.11 The law should not be interpreted to grant power to the State, thru the DAR, to choose who should benefit from multi-million peso deals involving lands awarded to supposed agrarian reform beneficiaries who then apply for conversion, and thereafter sell the lands as non-agricultural land. Respondents, in trying to make light of this problem, merely emphasize that CLOAs are not titles. They state that "rampant selling of rights", should this occur, could be remedied by the cancellation or recall by DAR. In the recent case of "Hon. Carlos O. Fortich, et. al. vs. Hon. Renato C. Corona, et. al." (G.R. No. 131457, April 24, 1998), this Court found the

CLOAs given to the respondent farmers to be improperly issued and declared them invalid. Herein petitioner Roxas and Co., Inc. has presented a stronger case than petitioners in the aforementioned case. The procedural problems especially the need for referral to the Court of Appeals are not present. The instant petition questions the Court of Appeals decision which acted on the administrative decisions. The disputed properties in the present case have been declared non-agricultural not so much because of local government action but by Presidential Proclamation. They were found to be non-agricultural by the Department of Agriculture, and through unmistakable implication, by DAR itself. The zonification by the municipal government, approved by the provincial government, is not the only basis. On a final note, it may not be amiss to stress that laws which have for their object the preservation and maintenance of social justice are not only meant to favor the poor and underprivileged. They apply with equal force to those who, notwithstanding their more comfortable position in life, are equally deserving of protection from the courts. Social justice is not a license to trample on the rights of the rich in the guise of defending the poor, where no act of injustice or abuse is being committed against them. As we held in Land Bank (supra.): It has been declared that the duty of the court to protect the weak and the underprivileged should not be carried out to such an extent as to deny justice to the landowner whenever truth and justice happen to be on his side. As eloquently stated by Justice Isagani Cruz: . . . social justice or any justice for that matter is for the deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of reasonable doubt, we are called upon to tilt the balance in favor of the poor simply because they are poor, to whom the Constitution fittingly extends its sympathy and compassion. But never is it justified to prefer the poor simply because they are poor, or to eject the rich simply because they are rich, for justice must always be served, for poor and rich alike, according to the mandate of the law. IN THE LIGHT OF THE FOREGOING, I vote to grant the petition for certiorari; and to declare Haciendas Palico, Banilad and Caylaway, all

situated in Nasugbu, Batangas, to be non-agricultural and outside the scope of Republic Act No. 6657. I further vote to declare the Certificates of Land Ownership Award issued by respondent Department of Agrarian Reform null and void and to enjoin respondents from proceeding with the compulsory acquisition of the lands within the subject properties. I finally vote to DENY the motion for intervention.
Footnotes 1 Art. II, Section 1, Proclamation No. 3. 2 Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343, 366 [1989]. 3 Annex "2" to Comment, Rollo, p. 309. 4 Id. 5 Annex "3" to Comment, Rollo, pp. 310-314. 6 Annex "4" to Comment, Rollo, pp. 315-315C. Unlike Annexes "3" and "5," the list of actual occupants was not attached to the MARO Report. 7 Annex "5" to Comment, Rollo, pp. 316-316E. 8 Annex "7" to Comment, Rollo, p. 317. 9 Annexes "7" and "8" to Comment, Rollo, pp. 317, 319. 10 Annex "1" to Comment, Rollo, p. 308. 11 Id. 12 Annexes "9," "10" and "11" to Comment, Rollo, pp. 320-322. 13 Annexes "K" and "N" to Petition, Rollo, pp. 211-212, 215. 14 Petition, p. 20, Rollo, p. 30. 15 Annexes "16," "17," "18," and "19" to Comment, Rollo, pp. 327-330. 16 Annex "20" to Comment, Rollo, p. 331. 17 Annex "30" to Comment, Rollo, p. 360. 18 Id. 19 Annex "29" to Comment, Rollo, p. 359. 20 Annex "23" to Comment, Rollo, pp. 337-344. 21 Annex "24" to Comment, Rollo, pp. 346-354. 22 Minutes of the Conference/Meeting, Annex "27" to Comment, Rollo, p. 357. 23 Annex "26" to Comment, Rollo, p. 356. 24 Annex "25" to Comment, Rollo, p. 355. 25 Annexes "21" and "22" to Comment, Rollo, pp. 332, 333. 26 Id. 27 Annex "34" to Comment, Rollo, p. 364. 28 Annex "35" to Comment, Rollo, p. 365. 29 Annexes "37" and "38" to Comment, Rollo, pp. 367368. 30 Annexes "42" and "43" to Comment, Rollo, pp. 372-374. In its Comment before this Court, respondent DAR states that valuation of the land under TCT No. T-44662 had not been completed, while the land under TCT No. T-44665 was not distributed due to errors in the qualifications of the farmer beneficiaries Comment, p. 16,Rollo, p. 587. 31 Id. 32 Annexes "44" and "45" to Comment, Rollo, pp. 374, 375. 33 Annexes "46" and "47" to Comment, Rollo, pp. 376, 377. 34 Annex "S" to Petition, Rollo, pp. 223-224. 35 Petition, p. 24, Rollo, p. 34. 36 Annexes "K" and "N" to Petition, Rollo, pp. 211-212, 215. 37 Annex "V" to Petition, Rollo, pp. 229-230. 38 Petition, p, 27, Rollo, p, 37. 39 The CA decision was penned by Justice Gloria C. Paras and concurred in by Justices Serafin Guingona and Eubulo Verzola.

!"#$"%&'&$()*+"*&'&,)-.&//01/& 40 The Resolution was penned by Justice Paras and concurred in by Justices Jainal Rasul (vice J. Guingona who retired) and Portia Hormachuelos. Justice Verzola wrote a dissenting opinion which Justice Delilah Magtolis joined. 41 Petition, pp. 28-29, Rollo, pp. 38-39. 42 Corona v. Court of Appeals, 214 SCRA 378, 393 [1992]; Sunville Timber Products, Inc. v. Abad, 206 SCRA 482, 487 [1992]; Quisumbing v. Gumban, 193 SCRA 520, 523-524 [1991]. 43 Sec. 24, R.A. 6657. 42 Association of Small Landowners of the Philippines v. DAR Secretary, 175 SCRA 343, 391 [1989]. 45 Land Bank of the Philippines v. Court of Appeals, 249 SCRA 149, 157 [1995]. 46 Prefatory Statement, DAR Administrative Order No. 12, Series of 1989. 47 Now repealed by Administrative Order No. 17, Series of 1989. 48 Id., at 174-175. 49 Id., at 175-177. 50 Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343, 373-374 [1989]. 51 Id. 52 Sec. 1, Article III, 1987 Constitution. 53 Development Bank of the Philippines v. Court of Appeals, 262 SCRA 245, 253 [1996]. 54 Prior to DAR A.O. No. 9, Series of 1990, VOS transactions were governed by A.O. No. 3; Series of 1989 and A.O. No. 19, Series of 1989 while CA transactions were governed by A.O. No. 12, Series of 1989. 55 The DENR's participation was added by DAR A.O. No. 9, Series of 1990. 56 The Department of Agriculture became part of the field investigation team. Under A.O. No. 9, Series of 1990, a representative of the DA was merely invited to attend the conference or public hearing. 57 Annex "2" to Comment, Rollo, p. 309. 58 Id. 59 Annex "27" to Comment, Rollo, p. 357. 60 Comment, p. 16, Rollo, p. 587. 61 Petition, p, 5, Rollo, p. 15. 62 R. Martin, Civil Procedure, p. 461 [1989]. 63 Delta Motors Sales Corp. vs. Mangosing, 70 SCRA 598, 603 [1976]. 64 Lee v. Court of Appeals, 205 SCRA 752, 765 [1992]; G & G Trading Corp. v. Court of Appeals, 158 SCRA 466, 468 [1988]; Villa Rey Transit, Inc. v. Far East Motor Corp., 81 SCRA 298, 303 [1978]. 65 Delta Motors Sales Corp. vs. Mangosing, supra, at 603; Rebollido v. Court of Appeals, 170 SCRA 800, 809-810, [1989]. 66 See Notice of Acquisition for Hacienda Palico, Annex "1" to Comment, Rollo, p. 308; see also MARO Investigation Reports, Annexes "3", "4", "5" to Respondent's Comment, Rollo pp. 310, 315, 316; Annexes "6", "7", "8" to Respondents' Comment, Rollo pp. 317-319. 67 See Notices of Acquisition for Hacienda Banilad, Annexes "21" and "22" to Comment, Rollo, pp. 332, 333. 68 See Notice of Acquisition for Hacienda Palico, Annex "1" to Comment, Rollo, p. 308; Notices of Acquisition for Hacienda Banilad, Annexes "21" and "22" to Comment, Rollo, pp. 332, 333. 69 Paragraph 5 (b), Part IV-B, A.O. 9, Series of 1990. 70 Rejoinder of Respondents, pp. 3-4, Rollo, pp. 434-435. 71 Annexes "12" to "15" to Respondents' Comment, Rollo, pp. 361-363; Annexes "31" to "33" to Respondents' Comment, Rollo, pp. 324-326. 72 Petition, p. 23, Rollo, p. 33. 73 VOS transactions were later governed by A.O. No. 9, Series of 1990, and A.O. No. 1, Series of 1993 both also covering lands subject to Compulsory Acquisition. 74 Sec. 5, E.O. 229. 75 Annexes "42" and "43" to Comment, Rollo, pp. 372-374.

!"#$"%&'&$()*+"*&'&,)-.&//01/& 76 Sur-rejoinder, p. 3. 77 Annexes "39" and "40" to Comment, Rollo, pp., 369-370. 78 Petition, p. 37, Rollo, p. 47. 79 Petition, pp. 38-39, rollo, pp. 48-49; Supplemental Manifestation, p. 3. 80 Petition, p. 25, Rollo, p. 35; Annex "U" to the Petition, Rollo, p. 228. 81 Annex "E" to Petition, Rollo, p. 124. 82 Attached to Annex "E," Rollo, pp. 125-200. 83 Id. 84 Annex "F" to Petition, Rollo, p. 201. 85 Manifestation, pp. 3-4; Supplemental Manifestation, p. 4. 86 Manifestation, p. 4; Supplemental Manifestation, p. 5. 87 Part II, DAR A.O. No. 7, Series of 1997. 88 Prefatory Statement, DAR A.O. No. 7, Series of 1997. 89 Part III, E, F, DAR A.O. No. 7, Series of 1997. 90 Par. 3, C, Part VIII; Part XIV, DAR A.O. No. 7, Series of 1997. 91 First Lepanto Ceramics, Inc. v. Court of Appeals, 253 SRA 552, 558 [1996]; Machete v. Court of Appeals, 250 SCRA 176, 182 [1995]; Vidad v. Regional Trial Court of Negros Oriental, 227 SCRA 271, 276 [1990]. 92 Motion for intervention, pp. 1-5, Rollo, pp. 452-456. 93 Id.

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& SUPREME COURT Manila FIRST DIVISION

RESOLVED FURTHER, that the Honorable Provincial Governor be, as he is hereby authorized to sign for and in behalf of the province of Catanduanes, the pertinent Deed of Exchange and or other documents pertaining thereto; Pursuant thereto, Deeds of Exchange were executed under which the Province of Catanduanes conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. In 1978, part of the northern end of the old road fronting the petitioner's house was planted to vegetables in 1977 by Eulogia Alejandro. Anselmo Pea, who had bought Angeles Vargas's share, also in the same part of the road, converted it into a piggery farm. Learning about Resolution 158, the petitioner filed on December 29, 1978, a complaint with the Court of First Instance of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province of Catanduanes in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the northern portion of the said road. In a decision dated November 21, 1980, Judge Graciano P. Gayapa, Jr., while holding that the land in question was not a declared public road but a mere "passageway" or "short-cut," nevertheless sustained the authority of the provincial board to enact Resolution No. 158 under existing law. 1 Appeal was taken to the respondent court, 2 which found that the road was a public road and not a trail but just the same also upheld Resolution 158. It declared: Pursuant to Republic Act No. 5185, municipal authorities can close, subject to the approval or direction of the Provincial Board, thoroughfares under Section 2246 of the Revised Administrative Code. Although in this case the road was not closed by the municipality of Catanduanes but by the provincial board of Catanduanes, the closure, nevertheless, is valid since it was ordered by the approving authority itself. However, while it could do so, the provincial government of Catanduanes could close the road only if the persons

G.R. No. 78673 March 18, 1991 BRUNO S. CABRERA, petitioner, vs. HON. COURT OF APPEALS AND THE PROVINCE OF CATANDUANES, VICENTE M. ALBERTO, ENCARNACION TORRES, SANTIAGO VALDERAMA, JEREMIAS TRINIDAD, ALFREDO DAYAWON, ZACARIAS TATAD, FELIXBERTO CAMACHO, RUBEN GONZALES, FELIX RUBIO, RENE ALCANTARA, ARISTEO ARCILLA, PAMFILO DAYAWON, REMEDIOS BAGADIONG, FREDESWINDO ALCALA, ELENA S. LATORRE, BALDOMERO TOLENTINO, EULOGIA ALEJANDRO, ANGELES S. VARGAS, ISIDRO REYES, ANSELMO PEA, and CATALINA VELA, respondents. Dominador B. Medroso, Jr. for petitioner.

CRUZ, J.:p On September 19, 1969, the Provincial Board of Catanduanes adopted Resolution No. 158, providing as follows: RESOLVED, as it is hereby resolved, to close the old road leading to the new Capitol Building of this province to traffic effective October 31, 1969, and to give to the owners of the properties traversed by the new road equal area as per survey by the Highway District Engineer's office from the old road adjacent to the respective remaining portion of their properties.

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prejudiced thereby were indemnified, Section 2246 of the Revised Administrative Code being very explicit on this. Before us now, the petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board. The petitioner alleges that the closure of the road has especially injured him and his family as they can no longer use it in going to the national road leading to the old capitol building but must instead pass through a small passageway. For such inconvenience, he is entitled to damages in accordance with law. The petition has no merit. The Court cannot understand how the petitioner can seriously argue that there is no order of closure when it is there in the resolution, in black and white. Resolution 158 clearly says that it is "hereby resolved to close the old road." The closure is as plain as day except that the petitioner, with the blindness of those who will not see, refuses to acknowledge it. The Court has little patience with such puerile arguments. They border dangerously on a trifling with the administration of justice and can only prejudice the pleader's cause. The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: R.A. No. 5185, Section 11 (II) (a): II. The following actions by municipal officials or municipal councils, as provided for in the pertinent sections of the Revised Administrative Code shall take effect without the need of approval or direction from any official of the national government: Provided, That such actions shall be subject to approval or direction by the Provincial Board: (a) Authority to close thoroughfare under Section 2246;

xxx xxx xxx Sec. 2246. Authority to close thoroughfare. With the prior authorization of the Department Head, a municipal council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid or any part thereof, shall be closed without indemnifying any person prejudiced thereby. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed. In the case of Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, 3 the Court held the closure of a city street as within the powers of the city council under the Revised Charter of Cebu City, which provided: Sec. 31. Legislative Powers. Any provision of law and executive order to the contrary notwithstanding, the City Council shall have the following legislative powers: xxx xxx xxx (34) . . .; to close any city road, street or alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the City may be lawfully used or conveyed; It sustained the subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." In the case of Favis vs. City of Baguio, 4 the power of the City Council of Baguio City to close city streets and withdraw them from public use was also assailed. This Court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an

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alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. While it is true that the above cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province of Catanduanes for the construction of provincial roads. On this matter, Governor Vicente Alberto of Catanduanes testified as follows: . . . when the Province was given funds to construct a road that will be more convenient to the public, more solid and wider and to have a better town planning whereby the Capitol would be reached directly from the pier for purposes of improving services to the public, it was recommended by the District Highway Engineer that a new road would be constructed connecting the Capitol with the veterans fountain, and believing this recommendation was for the good of the community, it was carried out. The original passageway was already unnecessary and since there was a problem of compensation the land owners where the new road was going to pass, so they decided to close this passageway and instead of paying the owners of the property where the new road was to be constructed, they exchanged some portions of this passageway with properties where the proposed road would pass. 5 The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house."

However, the Court of Appeals ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated." On this issue, the governing principle was laid down in Favis thus: . . . The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. This rule was based on the following observations made in Richmond v. City of Hinton 6 which were quoted with approval by this Court: The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself with such route for outlet as the regularly constituted public authority may deem most compatible with the public welfare. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his acquisition, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him. Such case is damnum absque injuria. Following the above doctrine, we hold that the petitioner is not entitled to damages because the injury he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. As the trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance compared to

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the greater convenience the new road, which is wide and concrete, straight to the veterans fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment of those benefits, every individual in the province, including the petitioner, must be prepared to give his share. The dispositive portion of the challenged decision awarded the petitioner the sum of P5,000.00 as nominal and/or temperate damages, and the sum of P2,000.00 as and for attorney's fees. For the reasons stated above, these awards should all be deleted. The petitioner must content himself with the altruistic feeling that for the prejudice he has suffered, the price he can expect is the improvement of the comfort and convenience of the inhabitants of Catanduanes, of whom he is one. That is not a paltry recompense. WHEREFORE, the decision of the Court of Appeals dated February 17, 1987, is AFFIRMED as above modified, with costs against the petitioner. SO ORDERED. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes 1 Rollo, pp. 87-97. 2 Ibid., pp. 109-119. Pronove, Jr., ponente with Camilon and Cacdac, Jr., JJ. 3 66 SCRA 481. 4 27 SCRA 1060. 5 TSN, October 22, 1979, p. 21. 6 185 S.E. 411, 412-413, quoted in the Favis case.

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&

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& SUPREME COURT Manila FIRST DIVISION G.R. No. 135962 March 27, 2000

the use of roads and/or thoroughfares for the safe and convenient movement of persons, Neptune Street shall be opened to vehicular traffic effective January 2, 1996. In view whereof, the undersigned requests you to voluntarily open the points of entry and exit on said street. Thank you for your cooperation and whatever assistance that may be extended by your association to the MMDA personnel who will be directing traffic in the area. Finally, we are furnishing you with a copy of the handwritten instruction of the President on the matter. Very truly yours, PROSPERO I. ORETA Chairman 1 On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial court issued a temporary restraining order the following day. On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation of the MMDA's proposed action. 4 On January 28, 1997, the appellate court rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. BEL-AIR VILLAGE ASSOCIATION, INC., respondent. PUNO, J.: Not infrequently, the government is tempted to take legal shortcuts solve urgent problems of the people. But even when government is armed with the best of intention, we cannot allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a private road in a private subdivision. While we hold that the general welfare should be promoted, we stress that it should not be achieved at the expense of the rule of law. Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit corporation whose members are homeowners in Bel-Air Village, a private subdivision in Makati City. Respondent BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. The notice reads: SUBJECT: NOTICE of the Opening of Neptune Street to Traffic. Dear President Lindo, Please be informed that pursuant to the mandate of the MMDA law or Republic Act No. 7924 which requires the Authority to rationalize

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perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. The decision disposed of as follows: WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary Injunction issued on February 13, 1996 is hereby made permanent. For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in contempt is denied. 5 No pronouncement as to costs. SO ORDERED. 6 The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence, this recourse. Petitioner MMDA raises the following questions:

WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE AFFECTED EEL-AIR RESIDENTS AND BAVA OFFICERS? V HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?7 Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a private residential subdivision in the heart of the financial and commercial district of Makati City. It runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates.

Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power I in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY thoroughfares to insure the safety, convenience and welfare of the general (MMDA) THE MANDATE TO OPEN NEPTUNE STREET TO public. It is alleged that the police power of MMDA was affirmed by this PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND Court in the consolidated cases ofSangalang v. Intermediate Appellate POLICE POWERS? Court. 8 From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune II street to the public. 9 IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC? III IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET? IV Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. 10 The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. 11 It bears stressing that police power is lodged primarily in the National Legislature. 12 It cannot be exercised by any group or body of individuals not possessing legislative power. 13 The National Legislature, however, may

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delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. 14 Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. 15 A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." 16The Local Government Code of 1991 defines a local government unit as a "body politic and corporate." 17 one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. 18 Local government units are the provinces, cities, municipalities and barangays. 19 They are also the territorial and political subdivisions of the state. 20 Our Congress delegated police power to the local government units in the Local Government Code of 1991. This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. 21 Local government units exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The Local Government Code of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of

the corporate powers of the [province, city municipality] provided under the Code . . . " 22 The same Code gives thesangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." 23 Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan Manila was declared as a"special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 25 "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." 26 There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following: (b) Transport and traffic management which include the formulation, coordination, and monitoring of policies,standards, programs and projects to rationalize the existing transport operations, infrastructure requirements,the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;" 27 In the delivery of the seven (7) basic services, the MMDA has the following powers and functions:

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Sec. 5. Functions and powers of the Metro Manila Development Authority. The MMDA shall: (a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metrowide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities; (b) Prepare, coordinate and regulate the implementation of mediumterm investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions; (c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices; (d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation; (e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation,including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-

governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and (g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned. The implementation of the MMDA's plans, programs and projects is undertaken by the local government units, national government agencies, accredited people's organizations, non-governmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other arrangements with these bodies for the delivery of the required services Metro Manila. 28 The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors' League and the president of the Metro Manila Councilors' League. 29 The Council is headed by Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgate the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. These functions are particularly enumerated as follows: Sec. 6. Functions of the Metro Manila Council. (a) The Council shall be the policy-making body of the MMDA; (b) It shall approve metro-wide plans, programs and projects and issue rules and regulations deemed necessary by the MMDA to carry out the purposes of this Act; (c) It may increase the rate of allowances and per diems of the members of the Council to be effective during the term of the succeeding Council. It shall fix the compensation of the officers and

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personnel of the MMDA, and approve the annual budget thereof for submission to the Department of Budget and Management (DBM); (d) It shall promulgate rules and regulations and set policies and standards for metro-wide application governing the delivery of basic services, prescribe and collect service and regulatory fees, and impose and collect fines and penalties. Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under the service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations.

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exerciseregulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters. 31 Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as an exercise of police power. The first Sangalang decision was on the merits of the petition, 33 while the second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court of Appeals. 34

Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and three residents of Bel-Air Village against other residents of the Village and the Ayala Corporation, formerly the Makati Development Corporation, as the developer of the subdivision. The petitioners sought to enforce certain restrictive easements in the deeds of sale over their respective lots in the subdivision. These were the prohibition on the setting up of commercial and advertising signs on the lots, and the condition that the lots be used only for residential purposes. Petitioners alleged that respondents, who were residents along Jupiter Street of the subdivision, converted their residences into commercial establishments in violation of the It will be noted that the powers of the MMDA are limited to the following acts: "deed restrictions," and that respondent Ayala Corporation ushered in the full commercialization" of Jupiter Street by tearing down the perimeter wall formulation, coordination, regulation, implementation, preparation, that separated the commercial from the residential section of the village. 35 management, monitoring, setting of policies, installation of a system and administration.There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has The petitions were dismissed based on Ordinance No. 81 of the Municipal not been delegated any legislative power. Unlike the legislative bodies of the Council of Makati and Ordinance No. 81-01 of the Metro Manila Commission local government units, there is no provision in R.A. No. 7924 that (MMC). Municipal Ordinance No. 81 classified Bel-Air Village as a Class A empowers the MMDA or its Council to "enact ordinances, approve Residential Zone, with its boundary in the south extending to the center line resolutions appropriate funds for the general welfare" of the inhabitants of of Jupiter Street. The Municipal Ordinance was adopted by the MMC under Metro Manila. The MMDA is, as termed in the charter itself, "development the Comprehensive Zoning Ordinance for the National Capital Region and authority." 30 It is an agency created for the purpose of laying down policies promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated and coordinating with the various national government agencies, people's therein as bounded by Jupiter Street and the block adjacent thereto was organizations, non-governmental organizations and the private sector for the classified as a High Intensity Commercial Zone. 36 efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually We ruled that since both Ordinances recognized Jupiter Street as the summed up in the charter itself, viz: boundary between Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit of Bel-Air residents. We also held that the Sec. 2. Creation of the Metropolitan Manila Development Authority. perimeter wall on said street was constructed not to separate the residential .... from the commercial blocks but simply for security reasons, hence, in

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tearing down said wall, Ayala Corporation did not violate the "deed restrictions" in the deeds of sale.

municipalities of Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan. 40 Metropolitan Manila was created as a response to the finding We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a that the rapid growth of population and the increase of social and economic legitimate exercise of police power. 37 The power of the MMC and the Makati Municipal Council to enact zoning ordinances for the general welfare requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local prevailed over the "deed restrictions". governments could be administered more efficiently and economically if In the second Sangalang/Yabut decision, we held that the opening of Jupiter integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of Street was warranted by the demands of the common good in terms of social and economic ills that fanned the flames of rebellion and discontent "traffic decongestion and public convenience." Jupiter was opened by the [were] part of reform measures under Martial Law essential to the safety and Municipal Mayor to alleviate traffic congestion along the public streets 38 security of the State." 41 adjacent to the Village. The same reason was given for the opening to public vehicular traffic of Orbit Street, a road inside the same village. The destruction of the gate in Orbit Street was also made under the police power Metropolitan Manila was established as a "public corporation" with the of the municipal government. The gate, like the perimeter wall along Jupiter, following powers: was a public nuisance because it hindered and impaired the use of property, hence, its summary abatement by the mayor was proper and legal. 39 Sec. 1. Creation of the Metropolitan Manila. There is hereby created a public corporation, to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including Contrary to petitioner's claim, the two Sangalang cases do not apply to the the power to make contracts, sue and be case at bar. Firstly, both involved zoning ordinances passed by the sued, acquire, purchase, expropriate, hold, transfer and dispose of municipal council of Makati and the MMC. In the instant case, the basis for property and such other powers as are necessary to carry out its the proposed opening of Neptune Street is contained in the notice of purposes. The Corporation shall be administered by a Commission December 22, 1995 sent by petitioner to respondent BAVA, through its created under this Decree. 42 president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied The administration of Metropolitan Manila was placed under the Metro on its authority under its charter "to rationalize the use of roads and/or Manila Commission (MMC) vested with the following powers: thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall Sec. 4. Powers and Functions of the Commission. The Commission shall within the scope of transport and traffic management. By no stretch of the have the following powers and functions: imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. 1. To act as a central government to establish and administer Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) programs and provide services common to the area; 2. To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be operative until otherwise modified or repealed by the Commission; 3. To charge and collect fees for the use of public service facilities;

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4. To appropriate money for the operation of the metropolitan government and review appropriations for the city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in accordance with the established policies of the Commission, without prejudice to any contractual obligation of the local government units involved existing at the time of approval of this Decree; 5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within Metropolitan Manila; 6. To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single offense; 7. To perform general administrative, executive and policy-making functions; 8. To establish a fire control operation center, which shall direct the fire services of the city and municipal governments in the metropolitan area; 9. To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the metropolitan area; 10. To establish and operate a transport and traffic center, which shall direct traffic activities; 11. To coordinate and monitor governmental and private activities pertaining to essential services such as transportation, flood control and drainage, water supply and sewerage, social, health and environmental services, housing, park development, and others; 12. To insure and monitor the undertaking of a comprehensive social, economic and physical planning and development of the area; 13. To study the feasibility of increasing barangay participation in the affairs of their respective local governments and to propose to the President of the Philippines definite programs and policies for implementation;

14. To submit within thirty (30) days after the close of each fiscal year an annual report to the President of the Philippines and to submit a periodic report whenever deemed necessary; and 15. To perform such other tasks as may be assigned or directed by the President of the Philippines. The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. P.D. No. 824 further provided: Sec. 9. Until otherwise provided, the governments of the four cities and thirteen municipalities in the Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon promulgation of this Decree, and until December 31, 1975, become members of the Sangguniang Bayan which is hereby created for every city and municipality of Metropolitan Manila. In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission. xxx xxx xxx

The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it may adopt; Provided, that no such ordinance, resolution or measure shall become effective, until after its approval by the Commission; and Provided

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further, that the power to impose taxes and other levies, the power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be vested exclusively in the Commission. The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies. 44 Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz: Sec. 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area. 45 In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation resolutions and other issuances, approval of a code of basic services and the exercise of its rulemaking power. 48

The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. in potential equivalents in the Visayas and Mindanao. 43 Section 11 of the The MMA's jurisdiction was limited to addressing common problems same Article X thus provided: involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government Sec. 11. The Congress may, by law, create special metropolitan units technical assistance in the preparation of local development plans. Any political subdivisions, subject to a plebiscite as set forth in Section semblance of legislative power it had was confined to a "review [of] 10 hereof. The component cities and municipalities shall retain their legislation proposed by the local legislative assemblies to ensure

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consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." 49 When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the House of Representatives by the Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the local government units in the National Capital Region (NCR), with former Chairmen of the MMC and MMA, 50 and career officials of said agencies. When the bill was first taken up by the Committee on Local Governments, the following debate took place: THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you know. It's a special . . . we can create a special metropolitan political subdivision. Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality, city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now. . . . . HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also specifically mandated by the Constitution. THE CHAIRMAN: That's correct. But it is considered to be a political subdivision. What is the meaning of a political subdivision? Meaning to say, that it has its own government, it has its own political personality, it has the power to tax, and all governmental powers: police power and everything. All right. Authority is different; because it does not have its own government. It is only a council, it is an organization of political subdivision, powers, "no, which is not imbued with any political power.

If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is purely coordinative. And it provides here that the council is policy-making. All right. Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates all of the different basic services which have to be delivered to the constituency. All right. There is now a problem. Each local government unit is given its respective . . . as a political subdivision. Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the exercise. However, in the exercise of that power, it might be deleterious and disadvantageous to other local government units. So, we are forming an authority where all of these will be members and then set up a policy in order that the basic services can be effectively coordinated. All right. Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued because it coordinates. All right. It coordinates practically all these basic services so that the flow and the distribution of the basic services will be continuous. Like traffic, we cannot deny that. It's before our eyes. Sewerage, flood control, water system, peace and order, we cannot deny these. It's right on our face. We have to look for a solution. What would be the right solution? All right, we envision that there should be a coordinating agency and it is called an authority. All right, if you do not want to call it an authority, it's alright. We may call it a council or maybe a management agency. xxx xxx x x x 51

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's presentation to Congress. Thus:

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THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this was already approved before, but it was reconsidered in view of the proposals, set-up, to make the MMDA stronger. Okay, so if there is no objection to paragraph "f". . . And then next is paragraph "b," under Section 6. "It shall approve metrowide plans, programs and projects and issue ordinances or resolutions deemed necessary by the MMDA to carry out the purposes of this Act." Do you have the powers? Does the MMDA... because that takes the form of a local government unit, a political subdivision. HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it has the policies, it's very clear that those policies must be followed. Otherwise, what's the use of empowering it to come out with policies. Now, the policies may be in the form of a resolution or it may be in the form of a ordinance. The term "ordinance" in this case really gives it more teeth, your honor. Otherwise, we are going to see a situation where you have the power to adopt the policy but you cannot really make it stick as in the case now, and I think here is Chairman Bunye. I think he will agree that that is the case now. You've got the power to set a policy, the body wants to follow your policy, then we say let's call it an ordinance and see if they will not follow it. THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional impediment.1wphi1 You are making this MMDA a political subdivision. The creation of the MMDA would be subject to a plebiscite. That is what I'm trying to avoid. I've been trying to avoid this kind of predicament. Under the Constitution it states: if it is a political subdivision, once it is created it has to be subject to a plebiscite. I'm trying to make this as administrative. That's why we place the Chairman as a cabinet rank. HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . . . THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe me. HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and regulations. That would be . . . it shall also be enforced.

HON. BELMONTE: Okay, I will . . . . HON. LOPEZ: And you can also say that violation of such rule, you impose a sanction. But you know, ordinance has a different legal connotation. HON. BELMONTE: All right, I defer to that opinion, your Honor. THE CHAIRMAN: So instead of ordinances, say rules and regulations. HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions now. THE CHAIRMAN: Rules and resolutions. HON. BELMONTE: Rules, regulations and resolutions. 52 The draft of H. B. No. 14170/11116 was presented by the Committee to the House of Representatives. The explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a "national agency, not a political government unit." 53 The explanatory note was adopted as the sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on the floor and no amendments introduced. The bill was approved on second reading on the same day it was presented. 54 When the bill was forwarded to the Senate, several amendments were made.1wphi1 These amendments, however, did not affect the nature of the MMDA as originally conceived in the House of Representatives. 55 It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected." 56 R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, 57 whereas in local government units, the President merely

exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. We stress that this decision does not make light of the MMDA's noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our people's productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.1wphi1.nt IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 39549 are affirmed. SO ORDERED. Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.

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Footnotes 1 Annex "D" to the CA petition, Court of Appeals (CA) Rollo, p. 27. 2 Annex "J" to Petition, Rollo, pp. 76-78. 3 Minutes of the Ocular Inspection, Court of Appeals Rollo, pp. 193194. 4 CA Rollo, p. 332.

Roberto L. del Rosario is a resident of Neptune Street who allegedly spearheaded a campaign to open Neptune Street to the public Motion to Cite in Contempt, CA Rollo, pp. 412-415. 6 CA decision, p. 10, Rollo, p. 61. 7 Petition, p. 15, Rollo, p. 24. 8 168 SCRA 634 (1988). 9 Petition, p. 24, Rollo, p. 33. 10 United States v. Pompeya, 31 Phil, 245, 253-254 [1915]; Churchill v. Rafferty, 32 Phil. 580, 603 [1915]; People v. Pomar, 46 Phil. 440, 447 [1924]. 11 Bernas, The 1987 Constitution of the Philippines, A Commentary, pp. 95-98 [1996]. 12 Cruz, Constitutional Law, p. 44 [1995]. 13 Id., see also 16 C.J.S., Constitutional Law, Sec. 177 [1956 ed.]. 14 Cruz, supra, at 44; Binay v. Domingo, 201 SCRA 508, 513-514 [1991]. 15 Magtajas v. Pryce Properties, 234 SCRA 255, 272 [1994]. 16 Bernas, supra, at 959, citing UP Law Center Revision Project, Part II, 712 [1970] citing Sady, "Improvement of Local Government Administration for Development Purpose," Journal of Local Administration Overseas 135 [July 1962]. 17 Sec. 15, Book I, Local Government Code of 1991. 18 Id. 19 Titles I, II, III, IV, Book III, Local Government Code of 1991. 20 Sec. 1, Article X, 1987 Constitution. 21 Sec. 16, Book I, Local Government Code of 1991; also cited in Magtajas v. Pryce Properties Corp., Inc.supra, at 264-265. 22 Sec. 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of 1991. 23 Sec. 391 (a), Book III, Local Government Code of 1991. 24 Entitled "An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefor and for Other Purposes." 25 Sec. 1, R.A. 7924. 26 Sec. 3, par. 1, R.A. 7924. 27 Sec. 3 (b), supra; emphasis supplied. 28 Sec. 9, paragraph 5, supra. 29 Sec. 4, supra, Non-voting members of the Council are the heads of Department of Transportation and Communications (DOTC), Department of Public Works and Highways (DPWH), Department of Tourism (DOT), Department of Budget and Management (DBM), Housing and Urban Development Coordinating Committee

(HUDCC), and the National Police (PNP) or their duly authorized representatives. 30 Sec. 1, R.A. 7924. 31 Sec. 2, supra. 32 Op cit. 33 168 SCRA 634 [1988]. 34 176 SCRA 719 [1989]. 35 168 SCRA 634, 654-655. 36 Id. at 643. 37 Id. at 730. 38 Id. at 723. 39 Like the perimeter wall along Jupiter StreetId. at 734. 40 Sec. 2, P.D. 824. 41 Whereas Clauses, P.D. 824. 42 Sec. 1, P.D. 824; emphasis supplied. 43 Speech of then Constitutional Commissioner Blas Ople, see Bernas, The Intent of the 1986 Constitution Writers, pp. 706-707 [ 1995]. 44 Sec. 11, Article X, 1987 Constitution. 45 Sec. 8, Article XVIII, 1987 Constitution. 46 Sec. 3, E.O. 392. 47 Sec. 1, supra. 48 Sec. 2, supra. 49 Sec. 6, supra. 50 Chairmen Ismael Mathay, Jr. and Ignacio Bunye. 51 Deliberations of the Committee on Local Government, House of Representatives, Congress of the Philippines, November 10, 1993, pp. 46-48. 52 Deliberations of the Committee on Local Governments, House of Representatives, Congress of the Philippines, November 9, 1994, pp. 68-70. 53 Explanatory Note to H. B. 11116, p. 3. 54 H.B. 14170/11116, Sponsorship and Debates, December 20, 1994. 55 Complete H.B. 14170/11116 with R. A. 7924; see Senate Amendments, February 21, 1995. 56 Sec. 10, Article X of the 1987 Constitution reads: Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

57

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Sec. 7 (g), R.A. 7924.

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& SUPREME COURT Manila EN BANC G.R. No. 71169 December 22, 1988 JOSE D. SANGALANG and LUTGARDA D. SANGALANG, petitioners, FELIX C. GASTON and DOLORES R. GASTON, JOSE V. BRIONES and ALICIA R. BRIONES, and BEL-AIR VILLAGE ASSOCIATION, INC., intervenors-petitioners, vs. INTERMEDIATE APPELLATE COURT, and AYALA CORPORATION, respondents. G.R. No. 74376 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS TENORIO, and CECILIA GONZALVEZ,respondents. G.R. No. 76394 December 22,1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. THE COURT OF APPEALS, and EDUARDO and BUENA ROMUALDEZ respondents. G.R. No. 78182 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC., petitioner, vs. COURT OF APPEALS, DOLORES FILLEY, and J. ROMERO & ASSOCIATES, respondents. G.R. No. 82281 December 22, 1988 BEL-AIR VILLAGE ASSOCIATION, INC, petitioner, vs.

COURT OF APPEALS, VIOLETA MONCAL, and MAJAL DEVELOPMENT CORPORATION, respondents. Sangco, Anastacio, Castaneda & Duran Law Office for petitioners & private intervenors- petitioners. Raul S. Sison Law Offices for intervenor-petitioner Bel-Air Village Association, Inc. Renato L. Dela Fuente for respondent Ayala Corporation. G.R. No. L-74376: Raul S. Sison Law Offices for petitioner. Sergio L. Guadiz for private respondents. G.R. No. L-76394: Raul S. Sison Law Offices for petitioner. Gruba, Tanlimco Lamso and Apuhin Law Offices for respondents. G.R. No. L-78182: Funk & Associates for petitioners. Tee Tomas & Associates for respondents. G.R. No. L-82281: Funk & Associates for petitioner. Castillo, Laman, Tan & Associates for private respondents.

SARMIENTO, J.: Before the Court are five consolidated petitions, 1 docketed as G.R. Nos. 71169, 74376, 76394, 78182, and 82281 hereof, in the nature of appeals (by certiorari under Rule 45 of the Rules of Court) from five decisions of the Court of Appeals, denying specific performance and damages.

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The proceedings were commenced at the first instance by Jose Sangalang, joined by his wife Lutgarda Sangalang, both residents of No. 110 Jupiter Street, Makati, Metro Manila (G.R. No. 71169) to enforce by specific performance restrictive easement upon property, specifically the Bel- Air Village subdivision in Makati, Metro Manila, pursuant to stipulations embodied in the deeds of sale covering the subdivision, and for damages. Later, the Sangalangs were joined by Felix Gaston, a resident of No. 64 Jupiter Street of the same municipality, and by Mr. and Mrs. Jose and Alicia Briones, both of No. 66 Jupiter Street. Pending further proceedings, the BelAir Village Association, Inc. (BAVA), an incorporated homeowners' association, entered its appearance as plaintiff-in-intervention. BAVA itself had brought its own complaints, four in number, likewise for specific performance and damages to enforce the same 'deed restrictions.' (See G.R. Nos. 74376, 76394, 78182, and 82281.) ANTECEDENTS FACTS I. G.R. No. 71169 The facts are stated in the decision appealed from. We quote: xxxxxxxxx (1) Bel-Air Village is located north of Buendia Avenue extension (now Sen. Gil J. Puyat Ave.) across a stretch of commercial block from Reposo Street in the west up to Zodiac Street in the east, When Bel-Air Village was planned, this block between Reposo and Zodiac Streets adjoining Buendia Avenue in front of the village was designated as a commercial block. (Copuyoc TSN, p. 10, Feb. 12, 1982). (2) Bel-Air Village was owned and developed into a residential subdivision in the 1950s by Makati Development Corporation (hereinafter referred to as MDC), which in 1968 was merged with appellant Ayala Corporation. (3) Appellees-spouses Sangalang reside at No. 11O Jupiter Street between Makati Avenue and Reposo Street; appellees-spouses Gaston reside at No. 64 Jupiter Street between Makati Avenue and Zodiac Street; appelleesspouses Briones reside at No. 66 Jupiter Street also

between Makati Avenue and Zodiac Street; while appellee Bel-Air Village Association, Inc. (hereinafter referred to as BAVA) is the homeowners' association in Bel-Air Village which takes care of the sanitation, security, traffic regulations and general welfare of the village. (4) The lots which were acquired by appellees Sangalang and spouse Gaston and spouse and Briones and spouse in 1960, 1957 and 1958, respectively, were all sold by MDC subject to certain conditions and easements contained in Deed Restrictions which formed a part of each deed of sale. The pertinent provisions in said Deed Restrictions, which are common to all lot owners in Bel-Air Village, are as follows: I-BEL-AIR ASSOCIATION The owner of this lot/s or his successors in interest is required to be and is automatically a member of the Bel-Air Association and must abide by such rules and regulations laid down by the Association in the interest of the sanitation, security and the general welfare of the community. The association will also provide for and collect assessments, which will constitute as a lien on the property junior only to liens of the government for taxes and to voluntary mortgages for sufficient consideration entered into in good faith. II-USE OF LOTS Subject to such amendments and additional restrictions, reservations, servitudes, etc., as the Bel- Air Association may from time to time adopt and prescribe, this lot is subject to the following restrictions: a. This lot/s shall not be subdivided. However, three or more lots may be consolidated and subdivided into a lesser number of lots provided that none of the resulting lots be smaller in area than the smallest lot before the consolidation and that the consolidation and subdivision plan be duly approved by the governing body of the Bel-Air Association.

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b. This lot/s shall only be used for residential purposes. c. Only one single family house may be constructed on a single lot, although separate servants' quarters or garage may be built. d. Commercial or advertising signs shall not be placed, constructed, or erected on this lot. Name plates and professional signs of homeowners are permitted so long as they do not exceed 80 x 40 centimeters in size. e. No cattle, pigs, sheep, goats, ducks, geese, roosters or rabbits shall be maintained in the lot, except that pets may be maintained but must be controlled in accordance with the rulings of the Association. The term "pets' includes chickens not in commercial quantities. f. The property is subject to an easement of two (2) meters within the lot and adjacent to the rear and sides thereof not fronting a street for the purpose of drainage, sewage, water and other public facilities as may be necessary and desirable; and the owner, lessee or his representative shall permit access thereto by authorized representatives of the Bel-Air Association or public utility entities for the purposes for which the easement is created. g. This lot shall not be used for any immoral or illegal trade or activity. h. The owner and/or lessee of this lot/s shall at all times keep the grass cut and trimmed to reduce the fire hazard of the property. xxx xxx xxx VI-TERM OF RESTRICTIONS The foregoing restrictions shall remain in force for fifty years from January 15, 1957, unless sooner cancelled in its entirety by two thirds vote of members in good standing of the Bel-Air Association. However, the Association may, from

time to time, add new ones, amend or abolish particular restrictions or parts thereof by majority rule. VII--ENFORCEMENT OF RESTRICTIONS The foregoing restrictions may be enjoined and/or enforced by court action by the Bel-Air Association, or by the Makati Development Corporation or its assigns, or by any registered owner of land within the boundaries of the Bel-Air Subdivision (Sub-division plan PSD-49226 and Lot 7-B, Psd47848) or by any member in good standing of the Bel-Air association." (Exh. 1 -b; Exh. 22, Annex "B"). (Appellant's Brief, pp. 4- 6) (5) When MDC sold the above-mentioned lots to appellees' predecessors-in-interest, the whole stretch of the commercial block between Buendia Avenue and Jupiter Street, from Reposo Street in the west to Zodiac Street in the east, was still undeveloped. Access, therefore, to Bel-Air Village was opened to all kinds of people and even animals. So in 1966, although it was not part of the original plan, MDC constructed a fence or wall on the commercial block along Jupiter Street. In 1970, the fence or wall was partly destroyed by typhoon "Yoling." The destroyed portions were subsequently rebuilt by the appellant. (Copuyoc TSN, pp. 31-34, Feb. 12, 1982). When Jupiter Street was widened in 1972 by 3.5 meters, the fence or wall had to be destroyed. Upon request of BAVA, the wall was rebuilt inside the boundary of the commercial block. (Copuyoc TSN, pp. 4447, Feb. 12,1982). (6) When the appellant finally decided to subdivide and sell the lots in the commercial block between Buendia and Jupiter, BAVA wrote the appellant on May 9, 1972, requesting for confirmation on the use of the commercial lots. The appellant replied on May 16, 1972, informing BAVA of the restrictions intended to be imposed in the sale and use of the lots. Among these restrictions are: that the building shall have a set back of 19 meters; and that with respect to vehicular traffic along Buendia Avenue, entrance only will be allowed, and along Jupiter Street and side streets, both entrance and exit will be allowed.

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(7) On June 30, 1972, appellant informed BAVA that in a few months it shall subdivide and sell the commercial lots bordering the north side of Buendia Avenue Extension from Reposo Street up to Zodiac Street. Appellant also informed BAVA that it had taken all precautions and will impose upon the commercial lot owners deed restrictions which will harmonize and blend with the development and welfare of Bel-Air Village. Appellant further applied for special membership in BAVA of the commercial lot owners. A copy of the deed restrictions for the commercial lots was also enclosed. The proposed deed restrictions shall include the 19 meter set back of buildings from Jupiter Street, the requirement for parking space within the lot of one (1) parking slot for every seventy five (75) meters of office space in the building and the limitation of vehicular traffic along Buendia to entrance only, but allowing both vehicular entrance and vehicular exit through Jupiter Street and any side street. In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant and informed the latter that the application for special membership of the commercial lot owners in BAVA would be submitted to BAVA's board of governors for decision.

corresponding dues at P.50 per square meter should be reduced to P38,363.00. This amount, therefore, was remitted by the appellant to BAVA. Since then, the latter has been collecting membership dues from the owners of the commercial lots as special members of the Association. As a matter of fact, the dues were increased several times. In 1980, the commercial lot owners were already being charged dues at the rate of P3.00 per square meter. (Domingo, TSN, p. 36, March 19, 1980). At this rate, the total membership dues of the commercial lot owners amount to P230,178. 00 annually based on the total area of 76,726 square meters of the commercial lots. (9) Meantime, on April 4, 1975, the municipal council of Makati enacted its ordinance No. 81, providing for the zonification of Makati (Exh. 18). Under this Ordinance, BelAir Village was classified as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street (Exh. 18-A). Thus, Chapter III, Article 1, Section 3.03, par. F. of the Ordinance provides: F. Bel-Air Village area, as bounded on the N by Polaris and Mercedes streets and on the NE by Estrella Street; on the SE by Epifanio de los Santos Avenue and on the SW by the center line of Jupiter Street. Then bounded on the N by the abandoned MRR Pasig Line; on the E by Makati Avenue; on the S by the center line of Jupiter Street and on the W by the center line of Reposo Street." (Exh. 18-A)

(8) On September 25, 1972, appellant notified BAVA that, after a careful study, it was finally decided that the height limitation of buildings on the commercial lots shall be increased from 12.5 meters to 15 meters. Appellant further informed BAVA that Jupiter Street shall be widened by 3.5 meters to improve traffic flow in said street. BAVA did not reply to said letter, but on January 22, 1973, BAVA wrote a Similarly, the Buendia Avenue Extension area was classified letter to the appellant informing the latter that the Association as Administrative Office Zone with its boundary in the Northhad assessed the appellant, as special member of the North East Extending also up to the center line of Jupiter association, the amount of P40,795.00 (based on 81,590 Street (Exh. 18b). square meters at P.50 per square meter) representing the membership dues to the commercial lot owners for the year Thus, Chapter III, Article I, Section 3.05, par. C. of the Ordinance provides: 1973, and requested the appellant to remit the amount which its board of governors had already included in its current C. The Buendia Avenue Extension areas, as bounded on the budget. In reply, appellant on January 31, 1973 informed N-NE by the center line of Jupiter Street, on the SE by BAVA that due to the widening of Jupiter Street, the area of Epifanio de los Santos Avenue; on the SW by Buendia the lots which were accepted by the Association as Avenue and on the NW by the center line of Reposo Street, members was reduced to 76,726 square meters. Thus, the

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then on the NE by Malugay Street; on the SE by Buendia Avenue and on the W by Ayala Avenue Extension." (Exh. 18-B) The Residential Zone and the Administrative Office Zone, therefore, have a common boundary along the center line of Jupiter Street. The above zoning under Ordinance No. 81 of Makati was later followed under the Comprehensive Zoning Ordinance for the National Capital Region adopted by the Metro Manila Commission as Ordinance 81 -01 on March 14, 1981 (Exh. 19). However, under this ordinance, Bel-Air Village is simply bounded in the South-Southeast by Jupiter Street-not anymore up to the center line of Jupiter Street (Exh. B). Likewise, the blockdeep strip along the northwest side of Buendia Avenue Extension from Reposo to EDSA was classified as a High Intensity Commercial Zone (Exh. 19-c). Thus, the Zoning District Boundaries -Makati, in Annex B of the Ordinance provides: R-I-Low Intensity Residential xxxxxxxxx 4. Bel-Air 1, 3, 4 Bounded on the North -- J.P. Rizal and Amapola St. South - Rockwell Northwest - P. Burgos Southeast - Jupiter Southwest - Epifanio de los Santos Ave. (EDSA) 5. Bel-Air 2

Southwest - Makati Avenue South --- Jupiter Southeast -- Pasig Line East - South Avenue" (Exh. 19-b) xxxxxxxxx C-3-High Intensity Commercial Zone 2. A block deep strip along the northwest side of Buendia Ave. Ext. from Reposo to EDSA." (Exh, 19-c) Under the above zoning classifications, Jupiter Street, therefore, is a common boundary of Bel-Air Village and the commercial zone. (10) Meanwhile, in 1972, BAVA had installed gates at strategic locations across Jupiter Street which were manned and operated by its own security guards who were employed to maintain, supervise and enforce traffic regulations in the roads and streets of the village. (Villavicencio, TSN, pp, 2225, Oct. 30, 1980; BAVA Petition, par. 11, Exh. 17). Then, on January 17, 1977, the Office of the Mayor of Makati wrote BAVA directing that, in the interest of public welfare and for the purpose of easing traffic congestion, the following streets in Bel-Air Village should be opened for public use: Amapola Street - from Estrella Street to Mercedes Street Amapola Street -junction of Palma Street gate going to J. Villena Street Mercedes Street -- from EDSA to Imelda Avenue and Amapola junction Zodiac Street - from Mercedes Street to Buendia Avenue

Bounded on the Northwest - J.P. Rizal

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Jupiter Street -- from Zodiac Street to Reposo Street connecting Metropolitan Avenue to Pasong Tamo and V. Cruz Extension intersection Neptune Street - from Makati Avenue to Reposo Street Orbit Street - from F. Zobel-Candelaria intersection to Jupiter Street Paseo de Roxas - from Mercedes Street to Buendia Avenue (Exh. 17, Annex A, BAVA Petition) On February 10, 1977, BAVA wrote the Mayor of Makati, expressing the concern of the residents about the opening of the streets to the general public, and requesting specifically the indefinite postponement of the plan to open Jupiter Street to public vehicles. (Exh. 17, Annex B, BAVA Petition). However, BAVA voluntarily opened to the public Amapola, Mercedes, Zodiac, Neptune and Paseo de Roxas streets. (Exh. 17-A, Answer of Makati par. 3-7). Later, on June 17,1977, the Barangay Captain of Bel-Air Village was advised by the Office of the Mayor that, in accordance with the agreement entered into during the meeting on January 28, 1 977, the Municipal Engineer and the Station Commander of the Makati Police were ordered to open for public use Jupiter Street from Makati Avenue to Reposo Street. Accordingly, he was requested to advise the village residents of the necessity of the opening of the street in the interest of public welfare. (Exh. 17, Annex E, BAVA Petition). Then, on June 10, 1977, the Municipal Engineer of Makati in a letter addressed to BAVA advised the latter to open for vehicular and pedestrian traffic the entire portion of Jupiter Street from Makati Avenue to Reposo Street (Exh. 17, BAVA Petition, par. 14). Finally, on August 12, 1977, the municipal officials of Makati concerned allegedly opened, destroyed and removed the gates constructed/located at the corner of Reposo Street and Jupiter Street as well as the gates/fences

located/constructed at Jupiter Street and Makati Avenue forcibly, and then opened the entire length of Jupiter Street to public traffic. (Exh. 17, BAVA Petition, pars. 16 and 17). (11) Before the gates were-removed, there was no parking problem or traffic problem in Jupiter Street, because Jupiter Street was not allowed to be used by the general public (Villavicencio, TSN, pp. 24-25, Oct. 30, 1980). However, with the opening of Zodiac Street from Estrella Street to Jupiter Street and also the opening to the public of the entire length of Jupiter Street, there was a tremendous increase in the volume of traffic passing along Jupiter Street coming from EDSA to Estrella Street, then to Zodiac Street to Jupiter Street, and along the entire length of Jupiter Street to its other end at Reposo Street. (Villavicencio, TSN, pp. 30-32, Oct. 30, 1980). In the meantime, the purchasers of the commercial lots between Jupiter Street and Buendia Avenue extension had started constructing their respective buildings in 1974-1975. They demolished the portions of the fence or wall standing within the boundary of their lots. Many of the owners constructed their own fences or walls in lieu of the wall and they employed their own security guards. (TSN, p. 83, Feb. 20,1981; TSN, pp. 53-54; 72-74, March 20,1981; TSN, pp. 54-55, July 23, 1981). (12) Then, on January 27, 1978, appellant donated the entire Jupiter Street from Metropolitan Avenue to Zodiac Street to BAVA (Exh. 7)- However, even before 1978, the Makati Police and the security force of BAVA were already the ones regulating the traffic along Jupiter Street after the gates were opened in 1977. Sancianco TSN, pp. 26-30, Oct. 2,1981). In October, 1979, the fence at the corner of Orbit and Neptune Streets was opened and removed (BAVA Petition, par. 22, Exh. 17). The opening of the whole stretch of Orbit Street from J.P. Rizal Avenue up to Imelda Avenue and later to Jupiter Street was agreed to at the conference attended by the President of BAVA in the office of the Station Commander of Makati, subject to certain conditions, to wit:

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That, maintenance of Orbit St. up to Jupiter St. shall be shouldered by the Municipality of Makati. That, street lights will be installed and maintenance of the same along Orbit St. from J.P. Rizal Ave. up to Jupiter St. shall be undertaken by the Municipality. That for the security of the residents of San Miguel Village and Bel-Air Village, as a result of the opening of Orbit Street, police outposts shall be constructed by the Municipality of Makati to be headed by personnel of Station No. 4, in close coordination with the Security Guards of San Miguel Village and Bel-Air Village." (CF. Exh. 3 to Counter-Affidavit, of Station Commander, Ruperto Acle p. 253, records)" (Order, Civil Case No. 34948, Exh. 17-c). (13) Thus, with the opening of the entire length of Jupiter Street to public traffic, the different residential lots located in the northern side of Jupiter Street ceased to be used for purely residential purposes. They became, for all purposes, commercial in character. (14) Subsequently, on October 29, 1979, the plaintiffsappellees Jose D. Sangalang and Lutgarda D. Sangalang brought the present action for damages against the defendant-appellant Ayala Corporation predicated on both breach of contract and on tort or quasi-delict A supplemental complaint was later filed by said appellees seeking to augment the reliefs prayed for in the original complaint because of alleged supervening events which occurred during the trial of the case. Claiming to be similarly situated as the plaintiffs-appellees, the spouses Felix C. Gaston and Dolores R. Gaston, Jose V. Briones and Alicia R. Briones, and the homeowners' association (BAVA) intervened in the case. (15) After trial on the merits, the then Court of First Instance of Rizal, Pasig, Metro Manila, rendered a decision in favor of the appellees the dispositive portion of which is as follows: WHEREFORE, judgment is hereby accordingly rendered as follows:

ON PLAINTIFFS' COMPLAINT: Defendant is ordered to pay to the plaintiffs-spouses Sangalang the following damages: 1. The sum of P500,000.00 as actual and consequential damages; 2. The sum of P2,000,000.00 as moral damages; 3. The sum of P500,000.00 as exemplary damages; 4. The sum of P100,000.00 as attorney's fees; and 5. The costs of suit. ON INTERVENORS FELIX and DOLORES GASTON'S COMPLAINT: Defendant is ordered to pay to the spouses Felix and Dolores Gaston, the following damages: 1 . The sum of P400,000.00 as consequential damages; 2 The sum of P500,000.00 as moral damages; 3 The sum of P500,000.00 as exemplary damages: 4 The sum of P50,000.00 as attorney's fees; and 5 The costs of suit. ON INTERVENORS JOSE and ALICIA BRIONES' COMPLAINT: Defendant is ordered to pay to the spouses Jose and Alicia Briones, the following damages: 1 . The sum of P400,000.00 as consequential damages; 2 The sum of P500,000.00 as moral damages;

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3 The sum of P500,000.00 as exemplary damages; 4 The sum of P50,000.00 as attorney's fees; and 5 The costs of suit.

the case for lack of a cause of action. Without pronouncement as to costs. SO ORDERED. 4 II. G.R. No. 74376

ON INTERVENOR BAVA'S COMPLAINT: Defendant is ordered to pay intervenor BAVA, the following damages: 1. The sum of P400,000.00 as consequential damages; 2. The sum of P500,000.00 as exemplary damages; 3. The sum of P50,000.00 as attorney's fees; and 4. The costs of suit. The above damages awarded to the plaintiffs and intervenors shall bear legal interest from the filing of the complaint. Defendant is further ordered to restore/reconstruct the perimeter wall at its original position in 1966 from Reposo Street in the west to Zodiac Street in the east, at its own expense, within SIX (6) MONTHS from finality of judgment. SO ORDERED. (Record on Appeal, pp. 400-401) xxxxxxxxx On appeal, the Court of Appeals 3 rendered a reversal, and disposed as follows: ACCORDINGLY, finding the decision appealed from as not supported by the facts and the law on the matter, the same is hereby SET ASIDE and another one entered dismissing
2

This petition was similarly brought by BAVA to enforce the aforesaid restrictions stipulated in the deeds of sale executed by the Ayala Corporation. The petitioner originally brought the complaint in the Regional Trial Court of Makati,5 principally for specific performance, plaintiff [now, petitioner] alleging that the defendant [now, private respondent] Tenorio allowed defendant [Tenorio's co-private respondent] Gonzalves to occupy and convert the house at 50 Jupiter Street, Bel-Air Village, Makati, Metro Manila, into a restaurant, without its knowledge and consent, and in violation of the deed restrictions which provide that the lot and building thereon must be used only for residential purposes upon which the prayed for main relief was for 'the defendants to permanently refrain from using the premises as commercial and to comply with the terms of the Deed Restrictions." 6 The trial court dismissed the complaint on a procedural ground, i.e., pendency of an Identical action, Civil Case No. 32346, entitled "Bel-Air Village Association, Inc. v. Jesus Tenorio." The Court of Appeals 7 affirmed, and held, in addition, that Jupiter Street "is classified as High density commercial (C-3) zone as per Comprehensive Zoning Ordinance No. 81-01 for National Capital Region," 8 following its own ruling in AC-G.R. No. 66649, entitled "Bel-Air Village Association, Inc. vs. Hy-Land Realty & Development Corporation, et al." III. G.R. No. 76394 xxxxxxxxx Defendants-spouses Eduardo V. Romualdez, Jr. and Buena Tioseco are the owners of a house and lot located at 108 Jupiter St., Makati, Metro Manila as evidenced by Transfer Certificate of Title No. 332394 of the Registry of Deeds of Rizal. The fact is undisputed that at the time the defendants acquired the subject house and lot, several restrictions were already annotated on the reverse side of their title; however, for purposes of this appeal we shall quote hereunder only the pertinent ones, to wit:

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(b,) This lot/shall be used only for residential purposes. xxxxxxxxx IV. Term of Restriction The foregoing restriction(s) shall remain in force for fifty years from January 15, 1957, unless sooner cancelled in its entirety by two-thirds vote of the members in good standing of the Bel-Air Association. However, the Association may from time to time, add new ones, amend or abolish particular restrictions or parts thereof by majority rule.

appearing that the conclusions of the respondent Court of Appeals that private respondents' bake and coffee shop lies within a commercial zone and that said private respondents are released from their obligations to maintain the lot known as 108 Jupiter Street for residential purposes by virtue of Ordinance No. 81 of the Municipality of Makati and Comprehensive Zoning Ordinance No. 81-01 of the Metropolitan Manila Commission, are in accord with law and jurisprudence," 13 for which BAVA sought a reconsideration. Pending resolution, the case was referred to the Second Division of this Court, 14 and thereafter, to the Court En Banc en consulta. 15 Per our Resolution, dated April 29, 1988, we consolidated this case with G.R. Nos. 74376 and 82281. 16 IV. G.R. No. 78182.

During the early part of 1979, plaintiff noted that certain xxxxxxxxx renovations and constructions were being made by the defendants on the subject premises, for which reason the The case stemmed from the leasing by defendant Dolores defendants were advised to inform the plaintiff of the kind of Filley of her building and lot situated at No. 205 Reposo construction that was going on. Because the defendants Street, Bel-Air Village Makati, Metro Manila to her cofailed to comply with the request of the plaintiff, the latter's defendant, the advertising firm J. Romero and Associates, in chief security officer visited the subject premises on March alleged violation of deed restrictions which stipulated that 23, 1979 and found out that the defendants were putting up Filley's lot could only be used for residential purposes. a bake and coffee shop, which fact was confirmed by Plaintiff sought judgment from the lower court ordering the defendant Mrs. Romualdez herself. Thereafter, the plaintiff defendants to "permanently refrain" from using the premises reminded defendants that they were violating the deed in question "as commercial" and to comply with the terms of restriction. Despite said reminder, the defendants proceeded the deed restrictions. with the construction of the bake shop. Consequently, plaintiff sent defendants a letter dated April 30, 1979 warning them that if they will not desist from using the premises in After the proper proceedings, the court granted the plaintiff question for commercial purposes, they will be sued for the sought for relief with the additional imposition of violations of the deed restrictions. exemplary damages of P50,000.00 and attorney's fees of P10,000.00. The trial court gave emphasis to the restrictive clauses contained in Filley's deed of sale from the plaintiff, Despite the warning, the defendants proceeded with the which made the conversion of the building into a commercial construction of their bake shop. 9 one a violation. xxxxxxxxx The trial court 10 adjudged in favor of BAVA. On appeal, the Court of Appeals 11 reversed, on the strength of its holding in AC-G.R. No. 66649 earlier referred to. BAVA then elevated the matter to the Court by a petition for review on certiorari. The Court 12 initially denied the petition "for lack of merit, it Defendants now seek review and reversal on three (3) assignments of errors, namely: I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE REGULATIONS PROMULGATED BY THE MUNICIPAL

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AUTHORITIES IN MAKATI AND THE MINISTRY OF HUMAN SETTLEMENT'S CHANGING THE CHARACTER OF THE AREAS IN QUESTION HAD RENDERED THE RESTRICTIVE EASEMENT ON THE TITLE OF THE APPELLANTS VACATED. II. THE COURT ERRED IN NOT RULING THAT BECAUSE THE APPELLEE(S) HAD ALLOWED THE USE OF THE PROPERTY WITHIN THE VILLAGE FOR NONRESIDENTIAL PURPOSES, IT IS NOW ESTOPPED FROM ENFORCING THE RESTRICTIVE PROHIBITIONS SUBJECT MATTER OF THIS CASE. III. THE COURT ERRED IN NOT FINDING THAT THERE EXISTED A BILATERAL CONTRACT BETWEEN THE PARTIES AND THAT SINCE APPELLEE HAD NOT PERFORMED ITS OBLIGATIONS UNDER THIS ARRANGEMENT THE APPELLANT IN TURN WAS UNDER NO OBLIGATION TO ANNOTATE THE RESTRICTIVE PROHIBITIONS ON THE BACK OF THE TITLE. Appellants anchor their appeal on the proposition that the Bel-Air Village area, contrary to plaintiff- appellee's pretension of being a strictly residential zone, is in fact commercial and characterize the restrictions contained in appellant Filley's deed of sale from the appellee as completely outmoded, which have lost all relevance to the present-day realities in Makati, now the premier business hub of the nation, where there is a proliferation of numerous commercial enterprises established through the years, in fact even within the heart of so-called "residential" villages. Thus, it may be said that appellants base their position on the inexorable march of progress which has rendered at naught the continued efficacy of the restrictions. Appellant on the other hand, relies on a rigid interpretation of the contractual stipulations agreed upon with appellant Filley, in effect arguing that the restrictions are valid ad infinitum.

The lower court quite properly found that other commercial establishments exist in the same area (in fact, on the same street) but ignored it just the same and saidThe fact that defendants were able to prove the existence of several commercial establishments inside the village does not exempt them from liability for violating some of the restrictions evidently choosing to accord primacy to contractual stipulation. 17 xxxxxxxxx The Court of Appeals 18 overturned the lower court, 19 likewise based on ACG.R. No. 66649. The respondent Court observed also that J. Romero & Associates had been given authority to open a commercial office by the Human Settlements Regulatory Commission. V. G.R. No. 82281 The facts of this case have been based on stipulation. We quote: COMES NOW, the Parties, assisted by their respective counsel and to this Honorable Court, respectfully enter into the following stipulations of facts, to wit: 1. The parties admit the personal circumstances of each other as well as their capacities to sue and be sued. 2. The parties admit that plaintiff BAVA for short) is the legally constituted homeowners' association in Bel-Air Subdivision, Makati, Metro Manila. 3. The parties admit that defendant Violets Moncal is the registered owner of a parcel of land with a residential house constructed thereon situated at No. 104 Jupiter Street, BelAir Village, Makati, Metro Manila; that as such lot owner, she is a member of the plaintiff association. 4. The parties admit that defendant Majal Development Corporation (Majal for short) is the lessee of defendant Moncal's house and lot located at No. 104 Jupiter Street.

5. The parties admit that a deed restrictions is annotated on the title of defendant Moncal, which provides, among others, that the lot in question must be used only for residential purposes;' that at time Moncal purchased her aforesaid lot in 1959 said deed restrictions was already annotated in the said title. 6. The parties admit that when Moncal leased her subject property to Majal, she did not secure the consent of BAVA to lease the said house and lot to the present lessee. 7. The parties admit that along Jupiter Street and on the same side where Moncal's property is located, there are restaurants, clinics placement or employment agencies and other commercial or business establishments. These establishments, however, were sued by BAVA in the proper court. 8. The parties admit that at the time Moncal purchased the subject property from the Makati Development Corporation, there was a perimeter wall, running along Jupiter Street, which wall was constructed by the subdivision owner; that at that time the gates of the entrances to Jupiter Street were closed to public traffic. In short, the entire length of Jupiter which was inside the perimeter wall was not then open to public traffic 9. The parties admit that subsequent thereto, Ayala tore down the perimeter wall to give way to the commercial building fronting Buendia Avenue (now Gil J. Puyat Avenue). 10. The parties admit that on August 12, 1977, the Mayor of Makati forcibly opened and removed the street gates constructed on Jupiter Street and Reposo Street, thereby opening said streets to the public. 11. The parties admit plaintiffs letters of October 10, 23 and 31, 1984; as well as defendants' letters-reply dated October 17 and 29, 1984. 20 xxxxxxxxx

The trial court 21 dismissed the petitioner's complaint, a dismissal affirmed on appeal, 22 According to the appellate court, the opening of Jupiter Street to human and vehicular traffic, and the commercialization of the Municipality of Makati in general, were circumstances that had made compliance by Moncal with the aforesaid "deed restrictions" "extremely difficult and unreasonable," 23 a development that had excused compliance altogether under Article 1267 of the Civil Code. VI. The cases before the Court; the Court's decision.

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In brief, G.R. Nos. 74376, 76394, 78182, and 82281 are efforts to enforce the "deed restrictions" in question against specific residents (private respondents in the petitions) of Jupiter Street and with respect to G.R. No. 78182, Reposo Street. The private respondents are alleged to have converted their residences into commercial establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in G.R. No. 76394, an advertising firm in G.R. No. 78182; and a construction company, apparently, in G.R. No. 82281) in violation of the said restrictions. 24 Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the vendor itself, Ayala Corporation (formerly Makati Development Corporation), liable for tearing down the perimeter wall along Jupiter Street that had therefore closed its commercial section from the residences of BelAir Village and ushering in, as a consequence, the full "commercialization" of Jupiter Street, in violation of the very restrictions it had authored. As We indicated, the Court of Appeals dismissed all five appeals on the basis primarily of its ruling in AC-G.R. No. 66649, "Bel-Air Village, Inc. v. HyLand Realty Development Corporation, et al.," in which the appellate court explicitly rejected claims under the same 'deed restrictions" as a result of Ordinance No. 81 enacted by the Government of the Municipality of Makati, as well as Comprehensive Zoning Ordinance No. 8101 promulgated by the Metropolitan Manila Commission, which two ordinances allegedly allowed the use of Jupiter Street both for residential and commercial purposes. It was likewise held that these twin measures were valid as a legitimate exercise of police power. The Court of Appeals' reliance on Ordinance Nos. 81. and 8101 is now assailed in these petitions, particularly the Sangalang, et al. petition. Aside from this fundamental issue, the petitioners likewise raise procedural questions. G.R. No. 71169, the mother case, begins with one.

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1. G.R. No. 71169

issue submitted which the parties failed to raise or the lower court ignore[d]. 32 And in Vda. de Javellana v. Court of Appeals, 33 we permitted the consideration of a 'patent error' of the trial court by the Court of Appeals In this petition, the following questions are specifically put to the Court: under Section 7, of Rule 51, of the Rules of Court, 34 although such an error May the Honorable Intermediate Appellate Court reverse the had not been raised in the brief. But what we note is the fact that the Ayala did raise the zoning measures as affirmative defenses, first in decision of the trial court on issues which were neither raised Corporation 35 its answers and second, in its brief, 36 and submitted at the trial as by AYALA in its Answers either to the Complaint or 37 exhibits. There is accordingly no cause for complaint on the part of the Supplemental Complaint nor specifically assigned as one of 25 petitioners for Ayala's violation of the Rules. But while there was reason for the alleged errors on appeal? the consideration, on appeal, of the said zoning ordinances in question, this Court nevertheless finds as inaccurate the Court of Appeals' holding that May the Honorable Intermediate Appellate Court arbitrarily such measures, had "in effect, [made] Jupiter Street ... a street which could ignore the decisive findings of fact of the trial court, even if be used not only for residential purposes," 38and that "[It lost its character as uncontradicted and/or documented, and premised mainly on a street for the exclusive benefit of those residing in Bel-Air Village its own unsupported conclusions totally reverse the trial completely." 39 26 court's decision? May the Honorable Intermediate Appellate Court disregard the trial court's documented findings that respondent Ayala for its own self-interest and commercial purposes contrived in bad faith to do away with the Jupiter Street perimeter wall it put up three times which wall was really intended to separate the residential from the commercial areas and thereby insure the privacy and security of Bel Air Village pursuant to respondent Ayala's express continuing representation and/or covenant to do so? 27 a. The first question represents an attack on the appellate court's reliance on Ordinances Nos. 81 and 81-01, a matter not supposedly taken up at the trial or assigned as an error on appeal. As a rule, the Court of Appeals (then the Intermediate Appellate Court) may determine only such questions as have been properly raised to it, yet, this is not an inflexible rule of procedure. In Hernandez v. Andal, 28 it was stated that "an unassigned error closely related to an error properly assigned, or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as error." 29 In Baquiran v. Court of Appeals, 30 we referred to the " modern trend of procedure . . . according] the courts broad discretionary power" 31 and in which we allowed consideration of matters "having some bearing on the Among other things, there is a recognition under both Ordinances Nos. 81 and 8 1-01 that Jupiter Street lies as the boundary between Bel-Air Village and Ayala Corporation's commercial section. And since 1957, it had been considered as a boundary not as a part of either the residential or commercial zones of Ayala Corporation's real estate development projects. Thus, the Bel-Air Village Association's articles of incorporation state that Bel-Air Village is 'bounded on the NE., from Amapola St., to de los Santos Ave., by Estrella St., on the SE from Extrella St., to Pedestrian Lane by E. De los Santos Ave., on the SW., from Pedestrian Lane to Reposo St., by Jupiter Street . . . . 40 Hence, it cannot be said to have been "for the exclusive benefit" of Bel-Air Village residents. We come to the perimeter wall then standing on the commercial side of Jupiter Street the destruction of which opened the street to the public. The petitioners contend that the opening of the thoroughfare had opened, in turn, the floodgates to the commercialization of Bel-Air Village. The wall, so they allege, was designed precisely to protect the peace and privacy of Bel-Air Village residents from the din and uproar of mercantile pursuits, and that the Ayala Corporation had committed itself to maintain it. It was the opinion of the Court of Appeals, as we said, that Ayala's liability therefor, if one existed, had been overtaken by the passage of Ordinances Nos. 81 and 82-01, opening Jupiter Street to commerce. It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact acknowledged by the authorities of Makati and the National Government

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and, as a scrutiny of the records themselves reveals, by the petitioners themselves, as the articles of incorporation of Bel-Air Village Association itself would confirm. As a consequence, Jupiter Street was intended for the use by both -the commercial and residential blocks. It was not originally constructed, therefore, for the exclusive use of either block, least of all the residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished from the general public. When the wall was erected in 1966 and rebuilt twice, in 1970 and 1972, it was not for the purpose of physically separating the two blocks. According to Ayala Corporation, it was put up to enable the Bel-Air Village Association "better control of the security in the area, 41 and as the Ayala Corporation's "show of goodwill " 42 a view we find acceptable in the premises. For it cannot be denied that at that time, the commercial area was vacant, "open for [sic] animals and people to have access to Bel-Air Village." 43 There was hence a necessity for a wall. In any case, we find the petitioners' theory, that maintaining the wall was a matter of a contractual obligation on the part of Ayala, to be pure conjecture. The records do not establish the existence of such a purported commitment. For one, the subdivision plans submitted did not mention anything about it. For another, there is nothing in the "deed restrictions" that would point to any covenant regarding the construction of a wall. There is no representation or promise whatsoever therein to that effect. With the construction of the commercial buildings in 1974, the reason for which the wall was built- to secure Bel-Air Village from interlopers had naturally ceased to exist. The buildings themselves had provided formidable curtains of security for the residents. It should be noted that the commercial lot buyers themselves were forced to demolish parts of the wall to gain access to Jupiter Street, which they had after all equal right to use. In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it did not make, much less for alleged resort to machinations in evading it. The records, on the contrary, will show that the Bel-Air Village Association had been informed, at the very outset, about the impending use of Jupiter Street by commercial lot buyers. We quote: xxxxxxxxx 1. Exh. I of appellee, the memorandum of Mr. Carmelo Caluag, President of BAVA, dated May 10, 1972, informing

the BAVA Board of Governors and Barrio Council members about the future use of Jupiter Street by the lot owners fronting Buendia Avenue. The use of Jupiter Street by the owners of the commercial lots would necessarily require the demolition of the wall along the commercial block adjoining Jupiter Street. 2. Exh. J of appellee, the minutes of the joint meeting of BAVA Board of Governors and the Bel-Air Barrio Council where the matter that "Buendia lot owners will have equal rights to use Jupiter Street," and that Ayala's "plans about the sale of lots and use of Jupiter Street" were precisely taken up. This confirms that from the start BAVA was informed that the commercial lot owners will use Jupiter Street and that necessarily the wall along Jupiter Street would be demolished. 3. Exh. 10, the letter of Mr. Demetrio Copuyoc to the President of BAVA, dated May 16, 1972, expressly stating that vehicular entrance and exit to the commercial lots would be allowed along Jupiter and side streets. 4. Exhs. 27, 27-A, 27-B, the letter of Atty. Salvador J. Lorayes dated June 30, 1972, with enclosed copy of proposed restriction for the commercial lots to BAVA. He proposed restriction again expressly stated that "Vehicular entrances and exits are allowed thru Jupiter and any side streets." 5. Exh. L of appellee, the minutes of the meeting of the members of BAVA, dated August 26, 1972, where it is stated "Recently, Ayala Corporation informed the Board that the lots fronting Buendia Avenue will soon be offered for sale, and that future lot owners will be given equal rights to use Jupiter Street as well as members of the Association." 6. Exh. 25, the letter of Atty. Lorayes dated September 25, 1972, informing BAVA of the widening of Jupiter Street by 3.5 meters to improve traffic flow in said street to benefit both the residents of Bel-Air and the future owners of the commercial lots. 44

The petitioners cannot successfully rely on the alleged promise by Demetrio Copuyoc, Ayala's manager, to build a "[f]ence along Jupiter with gate for entrance and/or exit 45 as evidence of Ayala's alleged continuing obligation to maintain a wall between the residential and commercial sections. It should be observed that the fence referred to included a "gate for entrance and or exit" which would have defeated the purpose of a wall, in the sense the petitioners would put in one, that is to say, an impenetrable barrier. But as Ayala would point out subsequently, the proposed fence was not constructed because it had become unnecessary when the commercial lot owners commenced constructions thereon. Be that as it may, the Court cannot visualize any purported obligation by Ayala Corporation to keep the wall on the strength of this supposed promise alone. If truly Ayala promised anything assuming that Capuyoc was authorized to bind the corporation with a promise it would have been with respect to the fence. It would not have established the pre-existing obligation alleged with respect to the wall. Obligations arise, among other things, from contract. 46 If Ayala, then, were bound by an obligation, it would have been pursuant to a contract. A contract, however, is characterized by a "meeting of minds between two persons . 47 As a consensual relation, it must be shown to exist as a fact, clearly and convincingly. But it cannot be inferred from a mishmash of circumstances alone disclosing some kind of an "understanding," when especially, those disparate circumstances are not themselves incompatible with contentions that no accord had existed or had been reached. 48 The petitioners cannot simply assume that the wall was there for the purpose with which they now give it, by the bare coincidence that it had divided the residential block from the commercial section of Bel-Air. The burden of proof rests with them to show that it had indeed been built precisely for that objective, a proof that must satisfy the requirements of our rules of evidence. It cannot be made to stand on the strength of plain inferences. b. This likewise answers the petitioners' second query, whether or not the Court of Appeals had "arbitrarily ignore(d) the decisive findings of the trial court." 49 i.e., findings pointing to alleged acts performed by the Ayala Corporation proving its commitment to maintain the wall abovesaid. Specifically, the petitioners refer to, among other things: (1) Ayala's alleged announcement to Bel- Air Village Association members that "[the perimeter

wall along Jupiter Street will not be demolished," 50 (2) Ayala's alleged commitment "during the pendency of the case in the trial court" to restore the wall; (3) alleged assurances by Copuyoc that the wall will not be removed; (4) alleged contrivances by the corporation to make the association admit as members the commercial lot buyers which provided them equal access to Jupiter Street; and (5) Ayala's donation to the association of Jupiter Street for "private use" of Bel-Air residents. 51

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682 (1903), where it was held that "whether the plaintiffs services were solicited or whether they were offered to the defendant for his assistance, inasmuch as these services were accepted and made use of by the latter, we must consider that there was a tacit and mutual consent as to the rendition of services." (At 686.) In that case, the defendant had enormously benefitted from the services that entitled the plaintiff to compensation on the theory that no one may unjustly enrich himself at the expense of another (Solutio indebiti) The facts of this case differ. As we stated, the Ayala Corporation's alleged conduct prior to or during the proceedings below are not necessarily at war with claims that no commitment had been in fact made. With respect to Ayala's alleged announcement before the association, the Court does not agree that Ayala had categorically assumed as an obligation to maintain the wall "perpetually," i.e., until the year 2007 (the expiration date under the "deed restrictions.") There is nothing in its statement that would bare any commitment. In connection with the conference between the parties "during the pendency" of the trial, it is to be noted that the Ayala Corporation denies having warranted the restoration of the said wall therein. What, on the other hand, appears in the records is the fact that Ayala did make that promise, but provided that the Mayor allowed it. It turned out, however, that the Mayor balked at the Idea. 52 But assuming that Ayala did promise to rebuild the wall (in that conference), it does not seem to us that it did consequently promise to maintain it in perpetuity. It is unfair to say, as the trial court did, that the Ayala had "contrived to make future commercial lot owners special members of BAVA and thereby acquire equal right with the regular members thereof to use Jupiter Street 53 since, as we stated, the commercial lot buyers have the right, in any event, to make use of Jupiter Street, whether or not they are members of the association. It is not their memberships that give them the right to use it. They share that right with Bel-Air residents from the outset.

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The objective of making the commercial lot owners special members of the Bel-Air Village Association was not to accord them equal access to Jupiter Street and inferentially, to give them the right to knock down the perimeter wall. It was, rather, to regulate the use of the street owing precisely to the "planned" nature of Ayala's development project, and real estate development in general, and this could best be done by placing the commercial lot owners under the association's jurisdiction. Moreover, Ayala's overtures with the association concerning the membership of commercial lot buyers therein have been shown to be neither perfidious nor unethical nor devious (paraphrasing the lower court). We quote anew: xxxxxxxxx

(7) On June 30, 1972, appellant informed BAVA that in a few months it shall subdivide and sell the commercial lots bordering the north side of Buendia Avenue Extension from Reposo Street up to Zodiac Street. Appellant also informed BAVA that it had taken all precautions and will impose upon the commercial lot owners deed restrictions which will harmonize and blend with the development and welfare of Bel-Air Village. Appellant further applied for special membership in BAVA of the commercial lot owners. A copy of the deed restrictions for the commercial lots was also enclosed. The proposed deed restrictions shall include the 19 meter set back of buildings from Jupiter Street, the xxxxxxxxx requirement for parking space within the lot of one (1) parking slot for every seventy five (75) meters of office space The alleged undertaking, finally, by Ayala in the deed of donation (over in the building and the limitation of vehicular traffic along Jupiter Street) to leave Jupiter Street for the private use of Bel-Air residents Buendia to entrance only, but allowing both vehicular is belied by the very provisions of the deed. We quote: entrance and vehicular exit through Jupiter Street and any side street. xxxxxxxxx In its letter of July 10, 1972, BAVA acknowledged the above letter of appellant and informed the latter that the application for special membership IV. That the offer made by the DONOR had been accepted of the commercial lot owners in BAVA would be submitted to BAVA's board by the DONEE subject to the condition that the property will of governors for decision. be used as a street for the use of the members of the DONEE, their families, personnel, guests, domestic help and, under certain reasonable conditions and restrictions, by (8) On September 25,1972, appellant notified BAVA that, the general public, and in the event that said lots or parts after a careful study, it was finally decided that the height thereof cease to be used as such, ownership thereof shall limitation of buildings on the commercial lots shall be automatically revert to the DONOR. The DONEE shall increased from 12.5 meters to 15 meters. Appellant further

informed BAVA that Jupiter Street shall be widened by 3.5 meters to improve traffic flow in said street. BAVA did not reply to said letter, but on January 22, 1973, BAVA wrote a letter to the appellant informing the latter that the Association had assessed the appellant, as special member of the association, the amount of P40,795.00 (based on 81,590 square meters at P.50 per square meter) representing the membership dues of the commercial lot owners for the year 1973, and requested the appellant to remit the amount which its board of governors had already included in its current budget. In reply, appellant on January 31, 1973 informed BAVA that due to the widening of Jupiter Street, the area of the lots which were accepted by the Association as members was reduced to 76,726 square meters. Thus, the corresponding due at P.50 per square meter should be reduced to P38,363.00. This amount, therefore, was remitted by the appellant to BAVA. Since then, the latter has been collecting membership dues from the owners of the commercial lots as special members of the Association. As a matter of fact, the dues were increased several times. In 1980, the commercial lot owners were already being charged dues at the rate of P3.00 per square meter. (Domingo, TSN, p. 36, March 19, 1980). At this rate, the total membership dues of the commercial lot owners amount to P230,178.00 annually based on the total area of 76,726 square meters of the commercial lots. 54

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always have Reposo Street, Makati Avenue, and Paseo de Roxas open for the use of the general public. It is also understood that the DONOR shall continue the maintenance of the street at its expense for a period of three years from date hereof." (Deed of Donation, p. 6, Exh. 7) 55 xxxxxxxxx

Accordingly, the Court affirms the Court of Appeals' holding that the Ayala Corporation, in its dealings with the petitioners, the Bel-Air Village Association in particular, had "acted with justice, gave the appellees [petitioners] their due and observed honesty and good faith." 62 "Therefore, under both Articles 19 and 21 of the Civil Code, the appellant [Ayala] cannot be held liable for damages." 63 2. G.R. Nos. 74376, 76394, 78182, & 82281

The donation, on the contrary, gave the general public equal right to it. The Court cannot then say, accepting the veracity of the petitioners' facts" enumerated above, that the Ayala Corporation may be held liable for specific performance of a demandable obligation, let alone damages. The Court adds that Ayala can hardly be held responsible for the alleged deterioration of "living and environmental conditions" 56 of the Bel-Air area, as a consequence of "Ayala's authorized demolition of the Jupiter perimeter wall in 1974-1975. " 57 We agree with Ayala that until 1976, "there was peace and quiet" at Jupiter Street, as the petitioners' (Sangalang, Gaston, and Briones) complaints admit. Hence, the degeneration of peace and order in Bel-Air cannot be ascribed to the destruction of the wall in 1974 and 1975. What Ayala submits as the real cause was the opening of Jupiter Street to vehicular traffic in 1977., 58 But this was upon orders of the Mayor, and for which the homeowners' association had precisely filed suit (Civil Case No. 34998)59 to contest the act of the Mayor. c. This likewise disposes of the third question presented. The petitioners' reliance on Ayala's alleged conduct (proving its alleged commitment), so we have ruled, is not well-taken. Ayala's alleged acts do not, by themselves, reflect a commitment to maintain the wall in dispute. It cannot be therefore said that the Court of Appeals "arbitrarily ignore(d]"60 the lower court's findings. Precisely, it is the duty of the appellate court to review the findings of the trial judge, be they of fact or law. 61 It is not bound by the conclusions of the judge, for which reason it makes its own findings and arrives at its own conclusions. Unless a grave abuse of discretion may be imputed to it, it may accept or reject the lower tribunal's determinations and rely solely on the records. Our decision also resolves, quite anticlimactically, these companion cases. But we do so for various other reasons. In the Sangalang case, we absolve the Ayala Corporation primarily owing to our finding that it is not liable for the opening of Jupiter Street to the general public. Insofar as these petitions are concerned, we likewise exculpate the private respondents, not only because of the fact that Jupiter Street is not covered by the restrictive easements based on the "deed restrictions" but chiefly because the National Government itself, through the Metro Manila Commission (MMC), had reclassified Jupiter Street into high density commercial (C-3) zone, 64 pursuant to its Ordinance No. 81-01. Hence, the petitioners have no cause of action on the strength alone of the said "deed restrictions. In view thereof, we find no need in resolving the questions raised as to procedure, since this disposition is sufficient to resolve these cases. It is not that we are saying that restrictive easements, especially the easements herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees sanctity of contract and is said to be the "law between the contracting parties, 65 but while it is so, it cannot contravene 'law, morals, good customs, public order, or public policy. 66 Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co., 67 we are told: xxxxxxxxx 2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-

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appellee referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.' Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengson in Philippine Long Distance Company vs. City of Davao, et al. police power 'is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life.' We were even more emphatic in Vda. de Genuino vs. The Court of agrarian Relations, et al., when We declared: "We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power." Resolution No. 27, 1960 declaring the western part of High way 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted

the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution. 68 xxxxxxxxx Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have not shown why we should hold otherwise other than for the supposed "non-impairment" guaranty of the Constitution, which, as we have declared, is secondary to the more compelling interests of general welfare. The Ordinance has not been shown to be capricious or arbitrary or unreasonable to warrant the reversal of the judgments so appealed. In that connection, we find no reversible error to have been committed by the Court of Appeals. WHEREFORE, premises considered, these petitions are DENIED No pronouncement as to costs. IT IS SO ORDERED. Fernan, (C.J.), Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Narvasa, J., on leave. Paras, J., Took no part; Feliciano, J., Took no part; Padilla, J., Took no part;

Footnotes 1 Consolidated pursuant to our Resolution dated July 18, 1988. 2 ollo, G.R. No. 71169, 102-113. The decision of the Court of Appeals makes mention of specified areas in Makati having been converted into a "High Intensity Commercial Zone" as well as "Low Intensity Residential" (see page 9 of this Decision). This should be either "high" or "low" density. 3 Jurado Desiderio, J.; Campos, Jr., Jose and Camilon, Serafin, JJ., Concurring. Pascual, Crisolito J., Dissenting. The decision set aside,

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dated October 1, 1982, was penned by Hon. Gregorio Pineda, Presiding Judge, Court of First Instance of Rizal, Seventh Judicial District, Pasig, Metro Manila, Branch XXI. 4 Rollo, Id., 128. 5 Civil Case No. 49217, Hon. Rafael T. Mendoza, Presiding Judge; rollo, G.R. No. 74376, 82. 6 Rollo. Id. 7 Camilon, Serafin, J.; Pascual. Crisolito Campos Jr., Jose, and Jurado, Desiderio, JJ. Concurring. 8 Rollo, Id., 34; emphasis in original. 9 Rollo, G.R. No. 76394, 24-25. 10 Civil Case No. 33112; see Id., 8, 10. 11 Jurado, Desiderio, J.; Campos, J., Jose and Camilon, Serafin JJ. Concurring; Pascual, Crisolito J., Chairman, on leave. 12 First Division. 13 Rollo, Id., 81. 14 Per Resolution, dated February 22, 1988. 15 Per Resolution, dated April 4, 1988. 16 See fn. 1, supra. 17 Rollo, G.R, No. 78182, 36-38. 18 Camilon, Serafin, J.; Pronove, Ricardo and Cacdac, Bonifacio, JJ., Concurring. 19 Civil Case No. 27719, Regional Trial Court, Makati, Branch 145. 20 Rollo, G.R. No. 82281, 33-35. 21 Civil Case No. 8936, Regional Trial Court of Makati, Branch CXL, Hon. Ansberto P. Paredes, presiding, see Id., 32. 22 Bengzon, Eduardo, J.; Kapunan, Santiago and Buena, Arturo, JJ., Concurring. 23 Rollo, Id., 38. 24 See supra, 103-108. 25 Id., 32. 26 Id., 38. 27 Id., 50-51. 28 78 Phil. 196 (1947). 29 Supra, 209; emphasis supplied. 30 No. L-14551, July 31, 1961, 2 SCRA 873. 31 Supra 877. 32 Supra. 33 No. L-60129, July 29, 1983, 123 SCRA 799. 34 The rule states: Questions that may be decided. No which does not affect the jurisdiction over the subject matter will be considered unless stated in the assignment of errors and properly argued in the brief, save as the court, as its option, may notice plain errors See rollo, G.R. No. 71169, Id., 168. The pertinent paragraph of the answer states: 10. That in 1975, the Municipal Government of Makati enacted a zoning ordinance and classified the blocks between Buendia Avenue Extension and Jupiter Street as an administrative office zone with the north-northeast boundary of the zone extending up to the center line of Jupiter street. Under the said ordinance, Bel-Air Village has likewise been called into a residential zone, with its boundary at the southwest being delimited only up to the center line of the Jupiter Street.

Similarly, under Ordinance No. 81-01 of the Metro Manila Commission, Jupiter Street has been made a common boundary of the commercial blocks along the north side of the Buendia Avenue Extension and the Bel-Air Village Subdivision, so that the said street is subject to the common use of the owners of both the commercial blocks as well as the residential areas. 11. That the restoration reconstruction of the wall on the blocks along the southern side of Jupiter Street will come the entire southside portion of Jupiter Street and will illegally deprive the abutting lot owners on the commercial blocks of their rights to have the street kept open and to have access to the street, in violation of Act 496, as amended by Republic Act 440. 36 See Id., 169. 37 Exhibits Nos. "18" and "19"; see Id., 168. 38 Id., 116. 39 Id. 40 Id., 66. 41 Rollo, G.R. No. 71169, Id., 124. 42 Id. 43 Id. 44 Id., 124-126; emphasis in original. 45 Id., 52. 46 CIVIL CODE, art. 1157, par. (2). 47 Supra, art. 1305. 48 This case should be distinguished from Perez v. Pomar, 2 Phil. 49 Rollo, Id., 38. 50 Id., 40. 51 Id., 47. 52 Id., 183-185. 53 Id., 92. 54 Id., 105-106. 55 Id., 193; emphasis in original. 56 Id., 45. 57 Id. 58 Id., 108-110. 59 Id., 193. 60 Id., 38. 61 RULES OF COURT, Rule 46, sec. 18. 62 Rollo, G.R. No. 71169, Id., 126. 63 Id. 64 See rollo, G.R. No. 71169, Id., 117. 65 CIVIL CODE, supra, art. 1159. 66 Supra, art. 1306. 67 No. L-24670, December 14, 1979, 94 SCRA 533. 68 Supra, 545-547.

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SUPREME COURT Manila EN BANC

Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions. On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality subject to the following conditions: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose the establishment of the flea market/vending areas thereon; 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas. On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by respondent Palanyag on the said streets. On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag.

G.R. No. 97764 August 10, 1992 LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner, vs. HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE,respondents. Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service. Manuel de Guia for Municipality of Paraaque.

MEDIALDEA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Paraaque and Palanyag Kilusang Bayan for Service (Palanyag for brevity) against petitioner herein. The antecedent facts are as follows: On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within

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On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall be dismantled. Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of preliminary injunction. On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of preliminary injunction. On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag. Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack or excess of jurisdiction on the part of the trial judge in issuing the assailed order. The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Paraaque authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid. The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties; that as such, they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of Paraaque. Petitioner submits that a property already dedicated to public use cannot be used for another public purpose and that absent a clear showing that the Municipality of Paraaque has been granted by the legislature specific authority to convert a property already in public use to another public use, respondent municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a flea market. Petitioner also submits that assuming that the respondent municipality is authorized to close streets, it failed to comply with the conditions set forth by the Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing the municipal

streets to be used by market vendors the municipal council of respondent municipality violated its duty under the Local Government Code to promote the general welfare of the residents of the municipality. In upholding the legality of the disputed ordinance, the trial court ruled: . . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government units, the Municipality of Paraaque as such, is empowered under that law to close its roads, streets or alley subject to limitations stated therein (i.e., that it is in accordance with existing laws and the provisions of this code). xxx xxx xxx The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an encroachment of power legally vested to the municipality, precisely because when the municipality enacted the ordinance in question the authority of the respondent as Police Superintendent ceases to be operative on the ground that the streets covered by the ordinance ceases to be a public thoroughfare. (pp. 33-34, Rollo) We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the public streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise known as Local Government Code, in connection with established principles embodied in the Civil Code an property and settled jurisprudence on the matter. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article 424 of Civil Code states: Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities.

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unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed" in accordance with the last sentence of Section Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and are 10, Chapter II of Blg. 337, known as Local Government Code. In one case, therefore considered public properties of respondent municipality. Properties the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not of the local government which are devoted to public service are deemed being included in the City Development Plan. Thereafter, the City Council public and are under the absolute control of Congress (Province of passes another resolution authorizing the sale of the said abandoned road Zamboanga del Norte v. City of Zamboanga, L-24440, March 28, 1968, 22 through public bidding. We held therein that the City of Cebu is empowered SCRA 1334). Hence, local governments have no authority whatsoever to to close a city street and to vacate or withdraw the same from public use. control or regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority given by Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Congress to the local governments is the power to close roads as provided Bercilles, et al., G.R. No. in Section 10, Chapter II of the Local Government Code, which states: L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used for Sec. 10. Closure of roads. A local government unit may vehicular traffic are still considered public property devoted to public use. In likewise, through its head acting pursuant to a resolution of its sangguniang and in accordance with existing law and the such case, the local government has no power to use it for another purpose or to dispose of or lease it to private persons. This limitation on the authority provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way of the local government over public properties has been discussed and settled by this Courten banc in "Francisco V. Dacanay, petitioner v. Mayor or place or any part of thereof shall be close without indemnifying any person prejudiced thereby. A property thus Macaria Asistio, Jr., et al., respondents, G.R. No. 93654, May 6, 1992." This withdrawn from public use may be used or conveyed for any Court ruled: purpose for which other real property belonging to the local There is no doubt that the disputed areas from which the unit concerned might be lawfully used or conveyed. private respondents' market stalls are sought to be evicted (Emphasis ours). are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence However, the aforestated legal provision which gives authority to local outside the commerce of man (Arts. 420, 424, Civil Code). government units to close roads and other similar public places should be Being outside the commerce of man, it may not be the read and interpreted in accordance with basic principles already established subject of lease or others contract (Villanueva, et al. v. by law. These basic principles have the effect of limiting such authority of Castaeda and Macalino, 15 SCRA 142 citing the the province, city or municipality to close a public street or thoroughfare. Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Article 424 of the Civil Code lays down the basic principle that properties of Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. public dominion devoted to public use and made available to the public in De la Fuente, 48 O.G. 4860). general are outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes patrimonial property of the local government As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.

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The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect. The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians. Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent municipality of the conditions imposed by the former for the approval of the ordinance, to wit: 1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not oppose the establishment of the flea market/vending areas thereon; 2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2 meters on both sides of the road shall be used by pedestrians; 3. That the time during which the vending area is to be used shall be clearly designated; 4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed and donated by the Public Estate Authority. (p. 38, Rollo) Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the establishment of a flea market on said streets are

unsupported by any evidence that will show that this first condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent. Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the other observations of the Solicitor General when he said: . . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using the roads for a more direct access to the fire area, have to maneuver and look for other streets which are not occupied by stalls and vendors thereby losing valuable time which could, otherwise, have been spent in saving properties and lives. Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their patients to the hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine the tragedy of losing a life just because of a few seconds delay brought about by the inaccessibility of the streets leading to the hospital. The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is disrupted and school children have to get off at a distance still far from their schools and walk, rain or shine. Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to say, these cause further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo) Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus its attention solely on the argument that the use of public spaces for the

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establishment of a flea market is well within the powers granted by law to a local government which should not be interfered with by the courts. Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare. As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city streets and restore them to their specific public purpose. The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested. ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which granted the writ of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

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& SUPREME COURT Manila EN BANC G.R. No. 100710 September 3, 1991 BENJAMIN P. ABELLA, petitioner, vs. COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents. G.R. No. 100739 September 3, 1991 ADELINA Y. LARRAZABAL, petitioner, vs. COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents. Sixto S. Brillantes, Jr. for petitioner in 100739. Cesar A. Sevilla for petitioner in 100710. Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

No. 100710), who obtained the second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte. This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit: The Court has ordered the consolidation of G.R. Nos 8772130 and G.R. No. 88004 involving the same parties and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent Commission on Elections dismissing the pre-proclamation and disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal. Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the election, she filed her own certificate of candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the provincial election supervisor of Leyte to disqualify her for alleged false statements in her certificate of candidacy regarding her residence. (Id., pp.

GUTIERREZ, JR., J.:p The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R.

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113-118) This was immediately transmitted to the main office of the Commission on Elections, which could not function, however, because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184)

The motion for reconsideration of the resolution on the preproclamation cases was denied by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to the provincial board of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte. The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the Disposing of the consolidated petitions, this Court rendered judgment as canvass of the election returns, seasonably elevated them to follows: the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I. Pending 1. In G.R.Nos. 87721-30, the decision dated February 3, resolution of these cases, Abella intervened on March 7, 1989, the resolution dated April 13, 1989, are affirmed and 1988 in the disqualification case, docketed as SPC No. 88the petition is DISMISSED. 546, and the following day filed a complaint, with the Law Department of the COMELEC charging the private 2. In G.R. No. 88004, the decision dated February 3,1989, respondent with falsification and misrepresentation of her and the resolution dated May 4, 1989, are REVERSED and residence in her certificate of candidacy. On March 22, 1988, SET ASIDE. Respondent Commission on Elections is the public respondent consolidated the pre-proclamation and ORDERED to directly hear and decide SPC Case No. 88disqualification cases with the Second Division. 546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining order of On February 3, 1989, this Division unanimously upheld April 18, 1989, according to its own assessment of the virtually all the challenged rulings of the provincial board of evidence against the private respondent. canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity of the The parties are enjoined to resolve this case with all possible returns or the ballots, and ordered the proclamation of the speed, to the end that the Governor of Leyte may be winner after completion of the canvass. (G.R. Nos. 87721ascertained and installed without further delay. (p. 520) 30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision, and the matter In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its was referred to the Law Department for 'preliminary temporary restraining order against her proclamation paving Larrazabal's investigation for possible violation of Section 74 of the proclamation and her assumption to the Office of Governor of Leyte while Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26the hearings in the disqualification case (SPC No. 88-546) continued. 40)

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On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor.

Code, the COMELEC proceeded with a disqualification case not contemplated in G.R. No. 88004.

On July 18, 1991, the Commission en banc issued a resolution which denied The argument is not meritorious. Larrazabal's motion to declare decision void and/or motion for reconsideration and affirmed the second division's decision. In the same The questioned decision and resolution of the COMELEC conform with this resolution, the Commission disallowed Abella's proclamation as governor of Court's decision in G.R. No. 88004. Leyte. Hence, these petitions. We treat the various Comments as Answers and decide the petitions on their merits. Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining order on August 1, 1991. xxx xxx xxx ... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991. It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the office of the Governor and from discharging the duties and functions thereof. (Rollo100739, p. 204) In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC dismissed the petition and referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code. This Court reversed and set aside the COMELEC's ruling, to wit: The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it should not have been shunted aside to the Law Department for a roundabout investigation of the private respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte. In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646. 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

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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. Section 6 of R.A. 6646 states as follows: 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 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. ... xxx xxx xxx The above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ... In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position of governor in Leyte. In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a

registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit: Sec. 42. Qualification. (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect. xxx xxx xxx Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to prove their stance. On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her stand. The COMELEC ruled against the respondent, now petitioner Larrazabal. In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte.

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The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle ofINTENTION, the animus revertendi rather than anything else." In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDIevidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40) As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the COMELEC in its decision dated February 14, 1991 states: xxx xxx xxx But there is the more fundamental issue of residence. The only indications of a change of residence so far as respondent is concerned are: the address indicated in the application for cancellation filed by respondent indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased house in Kananga, that she was

informed by Inday Larrazabal that the spouses had decided to buy their property because she wanted to beautify the house for their residence. She attached as annex the written contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have properties in Lonoy and a house in Mahawan. The references to residence in the documents of cancellation and registration are already assessed for their evidentiary value in relation to the documents themselves above. The question must therefore be addressed in relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land leased. But the contract of lease with option to purchase itself indicates as to where the legal residence of the Jarrazabal is. The pertinent portion states: SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, andresidents of Ormoc City, Philippines, hereinafter referred to as the LESSEES. The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No. 155774914 issued in Ormoc City. The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her registration so she may be able to vote for him. For the purpose of running for public office, the residence requirement should be read as legal residence or domicile,

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not any place where a party may have properties and may visit from time to time. The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows: Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo 100710, pp. 67-69; Emphsis supplied) As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]): xxx xxx xxx ... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his

residence or origin must show and prove pre-ponderantly such abandonment or loss. xxx xxx xxx ... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297-300) In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places. Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte. Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of

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registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated: The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter, she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B". We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are: (1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; (2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else;

(4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; (7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the Commission per certification of the Chief, National Central File Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election Registrar could not have had the affidavits of these new registrants apart from

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those supplied by the Precinct itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names. It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk and third member of the board, while the one which appeared later which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I". From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been explained. It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987, which application surfaced before the Board of Election inspectors for Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the purpose of receiving inclusion and exclusion orders from the

courts, that the application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that the board proceeded with the numbering of a total 229 voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal. It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that there was no voter which was included by court order and that to voters, one Montero and one Salvame were excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief to Exh. "2C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of

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the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with Exh. "P" which was issued on February 11, 1988. The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27) The Court is bound by these factual findings as they are supported by substantial evidence: In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and all the needed concomitant powers' of the Commission on Elections, Justice Antonio P. Barredo declared that it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v. Larrazabal, supra) Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides: Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Section 89 of Republic Act No. 179 creating the City of Ormoc provides: Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of

the Province of Leyte The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte. Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The petitioner citing section 4, Article X of the Constitution, to wit: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices." (Petition, p. 29) The argument is untenable. Section 12, Article X of the Constitution is explicit in that aside from highlyurbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and

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be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the Applying these principles to the instant case, the conjunction and between election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." (Petition, p. 19) the phrase shall not be qualified andentitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board The Court finds the petitioner's interpretation fallacious. of the Province of Leyte." In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to wit: Time of Completion. Every owner or developer shall construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans. ... The Court ruled: We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the interpretation of Section 20 and, correlatively, of Section 21.

He would thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to 'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is illogical and erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 81-83)

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed by the President for three years from February 15, 1988 to February 15, 1991.) The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit:

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xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary Moreover, under the peculiar circumstances of this case, the decision of the or acting capacity. In relation to the Transitory Provision of second division of COMELEC would still be valid under the de the 1987 Constitution (Article XVIII) particularly Section 15 facto doctrine. thereof, to wit: Commissioner Flores was appointed for a three-year term from February 15, xxx xxx xxx 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office shall continue in office for one year after the ratification of in the COMELEC are on a staggered basis commencing and ending at fixed this Constitution, unless they are sooner removed for cause intervals, his continuance in office until February 15, 1991 has a color of or become incapacitated to discharge The duties of their validity. Therefore, all his official acts from February 3, 1991 to February 15, office or appointed to a new term thereunder. In no case 1991, are considered valid. The Court ruled in the case of Leyte Acting Viceshall any Member serve longer than seven years including Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, service before the ratification of this Constitution. et al. G.R. No. 90762, May 20, 1991: There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]): xxx xxx xxx ... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of the case. If there exists some other ground based on statute or general law or other grounds of construction, we decide the case on a non-constitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45) And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the local elections of

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate the holding of an elective office by one who is clearly disqualified from running for that position and the continued exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory provisions by public officers especially where, as in this case, we merely affirm the decision of the COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member.

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February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor in accordance with section 6, Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]). Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted. the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004. The petitioner's arguments are not persuasive. While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is

voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (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 noncandidate, 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 MelencioHerrera, 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.)

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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.

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion. WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners. SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Bidin, Grio-Aquino, Sound policy dictates that public elective Medialdea, Regalado and Davide, Jr., JJ., concur. offices are filled by those who have received the highest number of votes cast in the Fernan , C.J., took no part. election for that office, and it is a fundamental idea in all republican forms of government Feliciano and Sarmiento, JJ., is on leave. 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 noneligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics 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. 20-21)

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& SUPREME COURT Manila EN BANC G.R. No. 86564 August 1, 1989 RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent.

after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows: SEC. 253. Petition for quo warranto. Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election. The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1 For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warrantoand re-docketed it as EPC Case No. 8819, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

CRUZ, J.: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated.

The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time The petitioner's position is simple. He was proclaimed mayor-elect of Baguio for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, City, on January 20, 1988. The petition for quo warranto was filed by the he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by private respondent on January 26, 1988, but no filing fee was paid on that the petitioner, became effective only on November 15, 1988, seven days date. This fee was finally paid on February 10, 1988, or twenty-one days

after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the firstmentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a preproclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees inquo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of

the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.

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The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus: From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that

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substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6 xxx While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states:

to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lwph1.t Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality. 7 xxx Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8

... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43) This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public Only recently in the case of Beautifont, Inc., et al. v. Court of office. Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that: We also note in his Reply, the petitioner says: ... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back

In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a

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Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9 This is still another reason why the Court has seen fit to rule directly on the merits of this case. Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11 The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian. The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister

of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen. E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship:

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(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or (ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13 Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976. 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance. Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully

observe the laws of Australia and fulfill my duties as an Australian citizen. 14 and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15 The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18 The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only

when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

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Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: ... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that The petitioner now claims that his naturalization in Australia made him at is also the reason we must deny his present claim for recognition as a worst only a dual national and did not divest him of his Philippine citizenship. citizen of the Philippines. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be The petitioner is not now, nor was he on the day of the local elections on lost. Among these are: (1) naturalization in a foreign country; (2) express January 18, 1988, a citizen of the Philippines. In fact, he was not even a renunciation of citizenship; and (3) subscribing to an oath of allegiance to qualified voter under the Constitution itself because of his alienage. 21 He support the Constitution or laws of a foreign country, all of which are was therefore ineligible as a candidate for mayor of Baguio City, under applicable to the petitioner. It is also worth mentioning in this connection that Section 42 of the Local Government Code providing in material part as under Article IV, Section 5, of the present Constitution, "Dual allegiance of follows: citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be was not as loud as all that, for his lead over the second-placer was only reacquired by direct act of Congress, by naturalization, or by repatriation. It about 2,100 votes. In any event, the people of that locality could not have, does not appear in the record, nor does the petitioner claim, that he has even unanimously, changed the requirements of the Local Government reacquired Philippine citizenship by any of these methods. He does not point Code and the Constitution. The electorate had no power to permit a to any judicial decree of naturalization as to any statute directly conferring foreigner owing his total allegiance to the Queen of Australia, or at least a

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stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city. The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 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 disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26 Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case ofGeronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 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. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to

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serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur. Separate Opinions GUTTIERREZ, JR., J.,concurring: As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines. What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion. Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur. Footnotes
1 49 SCRA 562. SYCIP, SALAZAR 2 Sec. 248. Effect of filing petition to annul or suspend the proclamation. The filing with the Commission of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. 3 Rule 44, See. 4. COMELEC Rules of Procedure, Effectivity. These Rules shall be published in the Official Gazette and shall take effect on the seventh day following its publication. Actually, the Rules became effective seven days after the official release of the Official Gazette dated June 27, 1988 on November 8, 1988. 4 146 SCRA 446. 5 G.R. Nos. 79937-38, February 13, 1989. 6 Velasco v. Court of Appeals, 95 SCRA 616. See also Ortigas v. RUIZ, 148 SCRA 326; First Asian Transport and Shipping Agency, Inc. v. Ople 142 SCRA 542; Quisumbing v. Court of Appeals, 122 SCRA 031 Del Castillo v. Jaymalin, 112 SCRA 629; Francisco v. City, of Davao, 12 SCRA 628. 7 Tejones v. Gironella 159 SCRA 100. 8 Lianga Bay Logging Co., Inc. v. CA, 157 SCRA 357. 9 Rollo, p. 159. 10 Ibid., pp. 182A-1 95. 11 Id., pp. 94-107. 12 Id. Emphasis supplied. 13 Id. Emphasis supplied. 14 Id. Emphasis supplied. 15 Id. Emphasis supplied. 16 Id. 17 Id. 18 (i) Statement dated 25 November 1976 that he is an "Australian made before Det. Abaya. (ii) Statement affirming that he is an Australian citizen in the affidavit-complaint executed on 1 July 1988 and in the complaint filed on 13 January 1982 with the City, Court of Baguio: "... being an Australian citizen the subject of this complaint is one of which the Barangay Court cannot take cognizance of." 19 Soria v. Commissioner of Immigration, 37 SCRA 213; Lee v. Commissioner of Immigration, 42 SCRA 561; Sia Reyes v. Deportation Board, 122 SCRA 478. 20 Rollo, pp. 159-160. 21 Art. V, Sec. 1, 1987 Constitution. 22 137 SCRA 740. 23 Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring. 24 Teehankee, Acting C.J., Abad Santos and Melencio- Herrera, 25 Plana and Gutierrez, Jr., JJ. 26 Fernando, C.J. 27 136 SCRA 435. 28 23 Phil. 238. 29 Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring. 30 Makasiar, J. 31 Aquino, J. 32 Fernando, C.J. and Concepcion, Jr., C.J. 33 Except in times of war, under CA No. 63.

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& SUPREME COURT Manila EN BANC

Summons in the disqualification case was issued by the Comelec on March 27, 1992 to petitioner Labo followed by a telegram dated April 1, 1992, requiring him to file his Answer within three (3) non-extendible days but the latter failed to respond. On April 15, 1992, Ortega filed a motion to declare Labo in default for failure to file his Answer. On April 24, 1992, the Comelec issued another order directing the Election Registrar of Baguio City to personally deliver the summons. On May 4, 1992, the disqualification case was set for reception of evidence. At the said hearing, Ortega presented the decision of this Court in Labo v. Commission on Elections (176 SCRA 1 [1989]) declaring Labo not a citizen of the Philippines. Labo, on the other hand, though represented by counsel, did not present any evidence. It was only on May 5, 1992 that petitioner submitted his Answer claiming Filipino citizenship. On May 9, 1992, respondent Comelec issued the assailed resolution, the dispositive portion of which reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby resolves, to grant the petition; respondent's (Labo's) certificate of candidacy is hereby DENIED due course and ordered CANCELLED; the City Election Registrar of Baguio City is hereby directed to delete the name of the respondent (Labo) from the list of candidates for City Mayor of Baguio City. (Rollo, pp. 47-48; GR No. 105111) On the same date, Labo filed a motion to stay implementation of said resolution until after he shall have raised the matter before this Court. On May 10, 1992, respondent Comelec issued an Order which reads: Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo) on May 9, 1992, the Commission resolves that the decision promulgated on May 9, 1992 disqualifying respondent Ramon L. Labo, Jr., shall become final and executory only after five (5) days from promulgation pursuant to Rule 18, Section 13, Paragraph (b) of the Comelec Rules of Procedure.

G.R. No. 105111 July 3, 1992 RAMON L. LABO, Jr., petitioner, vs. COMMISSION ON ELECTIONS, and ROBERTO ORTEGA, respondents. G.R. No. 105384 July 3, 1992 ROBERTO C. ORTEGA, petitioner, vs. COMMISSION ON ELECTIONS, and RAMON L. LABO, Jr., respondents.

BIDIN, J.: This is the second time 1 that this Court is called upon to rule on the citizenship of Ramon Labo, Jr., who, believing that he is a Filipino citizen launched his candidacy for mayor of Baguio City in the last May 11, 1992 elections by filing his certificate of candidacy on March 23, 1992. Petitioner Roberto Ortega (GR No. 105384), on other hand, also filed his certificate of candidacy for the same office on March 25, 1992. Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March 26, 1992, a disqualification proceeding against Labo before the Commission on Elections (Comelec), docketed as SPA No. 92029, seeking to cancel Labo's certificate of candidacy on the ground that Labo made a false representation when he stated therein that he (Labo) is a "natural-born" citizen of the Philippines.

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Accordingly, respondent (Labo) may still continue to be voted upon as candidate for City Mayor of Baguio City on May 11, 1992 subject to the final outcome of this case in the event the issue is elevated to the Supreme Court either on appeal or certiorari. (Rollo, p. 53; GR No. 105111; emphasis supplied) On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the proclamation of Labo in the event he wins in the elections for the City Mayor of Baguio. (Rollo, pp. 64-65; GR No. 105111) On May 15, 1992, petitioner Labo filed the instant petition for review docketed as G.R. No. 105111 with prayer, among others, for the issuance of a temporary restraining order to set aside the May 9, 1992 resolution of respondent Comelec; to render judgment declaring him as a Filipino citizen; and to direct respondent Comelec to proceed with his proclamation in the event he wins in the contested elections. On the same date, or on May 15, 1992 petitioner Ortega filed before the Comelec an urgent motion for the implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy.

heard in Labo v. Commission on Elections (supra), it is the submission of petitioner that he can prove his Filipino citizenship. Petitioner cites the 1980 US case of Vance v. Terrazas (444 US 252), wherein it was held that in proving expatriation, an expatriating act an intent to relinquish citizenship must be proved by a preponderance of evidence. Petitioner contends that no finding was made either by the Commission on Immigration or the Comelec as regards his specific intent to renounce his Philippine citizenship. Petitioner also faults the Comelec for the supposed abbreviated proceedings in SPA No. 92-029 which denied him adequate opportunity to present a fulldress presentation of his case. Thus: a) only one (1) day was set for hearing of the case, i.e., May 4, 1992; b) two days later, May 6, 1992 the hearing was set; c) instead of holding a hearing, the Comelec issued the questioned resolution on May 9, 1992.

If only to refresh the mind of petitioner Labo, as well as that of his counsel, records disclose that summons were issued by respondent Comelec as early as March 27, 1992 followed by a telegram on April 1, 1992. But petitioner chose to ignore the same. Came April 15, 1992, petitioner Ortega After an exchange of pleadings, respondent Comelec, in its resolution dated filed a motion to declare petitioner Labo in default. Over-extending him May 26, 1992, denied Ortega's motion in view of the pending case (G.R. No. (Labo) the benefit of due process, respondent Comelec issued another 105111) earlier filed by Labo of the same nature before this Court. order dated April 24, 1992, this time directing the Acting City Election Registrar of Baguio to personally serve the summons. The alleged delay in the resolution of SPA No. 92-029 can only be attributed to petitioner Labo On June 1, 1992, Ortega filed a petition for mandamus docketed as G.R. and no one else. Thus, the respondent Comelec in its resolution dated May No. 105384 praying for the implementation of the Comelec's May 9, 1992 9, 1992 stated: resolution. Petitioner Ortega argues that respondent Comelec committed grave abuse of discretion when it refused to implement its May 9, 1992 resolution notwithstanding the fact that said resolution disqualifying Ramon Labo has already become final and executory. After the parties have submitted their respective pleadings, the Court, on June 16, 1992, Resolved to consider the case submitted for decision. I. GR No. 105111 In essence, it is the contention of petitioner Labo that he is a Filipino citizen. Alleging lack of trial on the merits as well as the lack of opportunity to be On May 4, 1992, the Acting Regional Election Registrar called this case for reception of evidence. Surprisingly, while as of that date respondent had not yet filed his Answer, a lawyer appeared for him. The petitioner (Ortega) presented the certificate of candidacy of respondent Ramon L. Labo, Jr., which contained in item 9 thereof the verified statement that respondent is a "naturalborn" Filipino citizen. To prove that respondent is not a Filipino citizen, petitioner submitted the decision of the Supreme Court in "Ramon L. Labo, Jr., petitioner, v.

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Comelec, et al.," GR No. 86564, August 1, 1989, the dispositive portion of which states: WHEREFORE, petitioner Ramon J. (sic) Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City once this decision becomes final and executory. No evidence was adduced for the respondent as in fact he had no Answer as of the hearing.

reconsideration in Labo v. Comelec (supra; Rollo, p. 375). Having been previously passed upon, the Court sees no pressing need to re-examine the same and make a lengthy dissertation thereon. At any rate, the fact remains that he has not submitted in the instant case any evidence, if there be any, to prove his reacquisition of Philippine citizenship either before this Court or the Comelec. On this score alone, We find no grave abuse of discretion committed by respondent Comelec in cancelling his (Labo's) certificate of candidacy and declaring that he is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v. Comelec (supra).

Petitioner Labo claims, however, that Sec. 72 2 of the Omnibus Election Code "operates as a legislatively mandated special repatriation proceeding" and that it allows his proclamation as the winning candidate since the On May 5, 1992, respondent (Labo) filed his verified Answer, resolution disqualifying him was not yet final at the time the election was insisting that he is a Filipino citizen and continue to maintain held. and preserve his Filipino citizenship; that he does not hold an Australian citizenship; that the doctrine of res The Court finds petitioner Labo's strained argument quixotic and untenable. judicata does not apply in citizenship; and that "existing facts In the first place, Sec. 72 of the Omnibus Election Code has already been support his continuous maintenance and holding of repealed by Sec. 6 of RA No. 6646, to wit: Philippine citizenship" and "supervening events now preclude the application of the ruling in the Labo v. Comelec Sec. 6. Effect of Disqualification Case. Any candidate who case and the respondent (Labo) now hold and enjoys has been declared by final judgment to be disqualified shall Philippine citizenship. not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by No evidence has been offered by respondent to show what final judgment before an election to be disqualified and he is these existing facts and supervening events are to preclude voted for and receives the winning number of votes in such the application of the Labo decision. (emphasis supplied) election, the Court or the 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 The Commission is bound by the final declaration that pendency thereof order the suspension of the proclamation respondent is not a Filipino citizen. Consequently, of such candidate whenever the evidence of his guilt is respondent's verified statement in his certificate of candidacy strong. (emphasis supplied) that he is a "natural-born" Filipino citizen is a false material representation." (Rollo, pp. 45-48; GR No. 105111) A perusal of the above provision would readily disclose that the Comelec can legally suspend the proclamation of petitioner Labo, his reception of the Up to this moment, petitioner Labo still failed to submit a scintilla of proof to winning number of votes notwithstanding, especially so where, as in this shore his claim before this Court that he has indeed reacquired his case. Labo failed to present any evidence before the Comelec to support his Philippine citizenship. claim of reacquisition of Philippine citizenship. Instead, petitioner relies in the US case of Vance v. Terrazas (supra). Suffice it to state that petitioner has already pleaded Vance in his motion for

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Furthermore, we need only to reiterate what we have stated in Labo v. Comelec (supra), viz.,: Under CA No. 63, as amended by P.D. No. 725, Philippine citizenship may be reacquired by a direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization or to any statute directly conferring Philippine citizenship upon him. . . . Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was disqualified as a candidate for being an alien. His election does not automatically restore his Philippine citizenship, the possession of which is an indispensable requirement for holding public office (Sec. 39, Local Government Code). Still, petitioner takes pains in raising a new argument not litigated before the respondent Comelec. Petitioner claims that he has reacquired his Filipino citizenship by citing his application for reacquisition of Philippine citizenship filed before the Office of the Solicitor General pursuant to PD 725 and Letter of Instruction No. 270 3 (Rollo, pp. 116-119; G.R. No. 105111). To date, however, and despite favorable recommendation by the Solicitor General, the Special Committee on Naturalization had yet acted upon said application for repatriation. Indeed, such fact is even admitted petitioner. In the absence of any official action or approval by the proper authorities, a mere application for repratriation, does not, and cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship. II. GR No. 105384 Petitioner Ortega submits that since this Court did not issue a temporary restraining order as regards the May 9, 1992 resolution of respondent Comelec cancelling Labo's certificate of candidacy, said resolution has already become final and executory. Ortega further posits the view that as a result of such finality, the candidate receiving the next highest number of votes should be declared Mayor of Baguio City. We agree with Ortega's first proposition.

At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9, 1992 resolution of respondent Comelec cancelling his (Labo's) certificate of candidacy had already become final and executory a day earlier, or on May 14, 1992, said resolution having been received by petitioner Labo on the same day it was promulgated, i.e., May 9, 1992 and in the interim no restraining order was issued by this Court. Thus, Sec. 78 of the Omnibus Election Code provides: Sec. 78. Petition to deny due course or to cancel a certificate of candidacy xxx xxx xxx (e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (emphasis supplied) A similar provision is also found in Sec. 3, Rule 39 of the Comelec Rules of procedure, to wit: Sec. 3. Decisions final after five days. Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. (emphasis supplied) The resolution cancelling Labo's certificate of candidacy on the ground that he is not a Filipino citizen having acquired finality on May 14, 1992 constrains Us to rule against his proclamation as Mayor of Baguio City. To begin with, one of the qualifications of an elective official is that he must be a citizen of the Philippines. Thus, the Local Government Code provides: 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

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panlungsod, 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. (emphasis supplied) Undoubtedly, petitioner Labo, not being a Filipino citizen, lacks the fundamental qualification for the contested office. Philippine citizenship is an indispensable requirement for holding an elective office. As mandated by law: "An elective local official must be a citizen of the Philippines." The issue here is citizenship and/or Labo's alienage the very essence which strikes at the very core of petitioner Labo's qualification to assume the contested office, he being an alien and not a Filipino citizen. The fact that he was elected by the majority of the electorate is of no moment. As we have held in Frivaldo v. Commission on Elections(174 SCRA 245 [1989]): . . . The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. 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, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. This brings us to the second issue raised by petitioner Ortega, i.e., whether the disqualification of petitioner Labo entitles the candidate (Ortega) receiving the next highest number of votes to be proclaimed as the winning candidate for mayor of Baguio City. We hold in the negative. The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as the candidate with the next highest number of votes to proclamation as the Mayor of Baguio City. We make mention of petitioner Ortega because in his petition, he alleges that:

. . . the May 11, 1992 elections were held with both herein petitioner (Roberto Ortega) and respondent LABO having been voted for the position of Mayor and unofficial results indicate that if the name of respondent LABO were deleted from the list of candidates, herein petitioner (Ortega) will be entitled to be proclaimed as Mayor-elect of Baguio City. (Rollo, p. 7, GR No. 105384; emphasis supplied) and further prays this Court "to proclaim as the Mayor-elect of Baguio City the candidate who may have garnered the most number of votes after the exclusion of the name of respondent candidate LABO." (Rollo, p. 15, Ibid.) Implicit, therefore, is petitioner Ortega's desire to be proclaimed Mayor-elect of Baguio City. As discussed hereunder, however, the Court finds Ortega's prayer devoid of merit. While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that: While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . . What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position cannot assume the vacated position. (emphasis supplied)

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Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of the people of Baguio City. Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78. Omnibus Election Code). And in the earlier case of Labo v. Comelec (supra), We held: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court in this issue is Santos v. Commission on Election, (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 noncandidate, were all disregarded 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) and another two reserving their votes (Plana and Gutierrez, Jr.). 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. Santos (136 SCRA 435), which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten members of the

Court (Gutierrez, Jr., J., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring), without any dissent, . . . . 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 did 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 a 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 noneligible person may 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 that candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

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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. Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 149).

As aforesaid, the ineligibility of a candidate receiving majority votes does not entitle the candidate receiving the next highest number of votes to be declared elected. Ortega failed to satisfy the necessary requisite of winning the election either by a majority or mere plurality of votes sufficient to elevate him in public office as mayor of Baguio City. Having lost in the election for mayor, petitioner Ortega was obviously not the choice of the people of Baguio City.

It is therefore incorrect to argue that since a candidate has been disqualified, As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor, the votes intended for the disqualified candidate should, in effect, be in accordance with Sec. 44 of the Local Government Code, to wit: considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any Chapter 2. Vacancies and Succession intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of Sec. 44. Permanent Vacancies in the Offices of the the powers of the government. Unfortunately, petitioner Labo turned out to Governor, Vice-Governor, Mayor and Vice-Mayor. (a) If a be disqualified and cannot assume the office. permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned Whether or not the candidate whom the majority voted for can or cannot be shall become the governor or mayor. . . . (emphasis installed, under no circumstances can a minority or defeated candidate be supplied) deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo WHEREFORE, the instant petitions are DISMISSED for lack of merit. (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. Petitioners both being ineligible for the Office of the City Mayor of Baguio 105111). City and in view of the vacancy created in said office, the vice-mayor elect of said city in the May 11, 1992 elections is hereby declared Mayor of Baguio The rule would have been different if the electorate fully aware in fact and in City after proclamation by the City Board of Canvassers. No costs. 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 SO ORDERED. ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Grio-Aquino, Medialdea, their franchise or throwing away their votes, in which case, the eligible Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur. candidate obtaining the next higher number of votes may be deemed elected. 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 mayor 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.

Separate Opinions

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GUTIERREZ, JR., J.: concurring and dissenting There is no need for me to discuss Mayor Ramon L. Labo, Jr.'s reacquisition of Philippine citizenship. In the first case brought to us, Labo, Jr. v. COMELEC, 176 SCRA 1 [1989], I dissented from the resolution denying his motion for reconsideration. It is my view that since Mayor Labo never validly acquired Australian citizenship, he never lost his Philippine citizenship. His oath of allegiance to Australia was null and void because he was not qualified to be an Australian citizen. This is clear from the certification of Australia's Embassy officials. To me, a null and void act cannot have the positive and serious effect of stripping a Filipino of his natural-born citizenship. Labo's taking an oath as citizen of a foreign country was based on his marriage to a citizen of that country. It turns out, however, that Labo's marriage was bigamous and void because his Australian wife had an existing valid marriage when she tied the knot with him. Not being married to her, Labo could not become an Australian. Not being qualified to become an Australian citizen, his oath of allegiance to that country was meaningless act. It should not deprive him of his Philippine citizenship. I cannot believe that Mayor Labo gave up his citizenship in order to acquire a stateless status. I, however, concur in the Court's reiteration of the rule that it is the vice-mayor elect who succeeds the disqualified mayor-elect and not the losing candidate for mayor. I have to be consistent with my ponencia in Geronima v. Santos, 136 SCRA 435 [1985]. The Geronimo ruling is even more applicable to this case because on May 11, 1992, the day of the elections, Labo was not yet disqualified. He was allowed to vote and to be voted for. The COMELEC decision disqualifying him became final and executory only on May 14, 1992. In the meantime, the citizens of Baguio had already stated who was their choice for Mayor. He had already been elected. I would like to repeat some observations made in my dissent in the first Labo case: xxx xxx xxx

I agree with the Court that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant it to him. We love the Philippines; it is the land of our birth; it is the home of our people. The emotions kindled by love of country cannot be described. But precisely because of the inestimable value of Philippine citizenship, we should never declare a Filipino as having lost his citizenship except upon the most compelling consideration. Let us be realistic. There must be over two million Filipinos who are scattered all over the world desperately trying to earn a living. They endure loneliness and separation from loved ones, bear with racial discrimination, suffer rape and other forms of abuse, brave the perils of foreign cultures, and put up with the failings of their own Government in looking after their welfare. Being in foreign countries, most of them yearn for their homeland and realize what they have lost. Only now do they appreciate what they used to take for granted. If some of them may have been forced by circumstances to seemingly renounce their citizenship, let us not summarily condemn them. xxx xxx xxx Citizenship is a political and civil right no less important than freedom of speech, liberty of abode, right against unreasonable searches and seizures, and other basic guarantees of the Bill of Rights. In deciding cases involving citizenship, I believe that the presumptions should be in favor of its retention and against its loss. We apply this principle to cases involving civil liberties. We should also apply it to a sincere invocation of Philippine citizenship. We should not lightly strip a person of his natural born status but should accord to him every possible interpretation consistent with the exercise of a right that was vested in him from birth. In view of the foregoing, I vote to GRANT the petition and to order the proclamation and assumption of office of Baguio Mayor Ramon Labo, Jr.

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Footnotes 1 The first time was in Ramon L. Labo, Jr., v. Comelec (176 SCRA 1 [1989]) 2 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. 3 PD 725 authorizes the Special Committee on Naturalization (created under LOI 270) to accept and process petitions for repatriation, as follows: (1) Filipino women who lost their Philippine citizenship by marriage to aliens: and (2) natural born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repratriation by applying with the Special Committee on Naturalization by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration shall thereupon cancel certificate of registration.

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& SUPREME COURT Manila EN BANC

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

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

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 4with 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 5 granting 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.

PANGANIBAN, J.:p 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

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The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8 dated 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 Comelecen 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 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:

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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.) 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." 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. 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?

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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 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. The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: 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

twenty-three (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 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.

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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

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 The memorandum of then President Aquino cannot even be regarded as a successfully rebutted by Lee. The mere fact that the proceedings were legislative enactment, for not every pronouncement of the Chief Executive speeded up is by itself not a ground to conclude that such proceedings were even under the Transitory Provisions of the 1987 Constitution can nor necessarily tainted. After all, the requirements of repatriation under P.D. No. should be regarded as an exercise of her law-making powers. At best, it 725 are not difficult to comply with, nor are they tedious and cumbersome. In could be treated as an executive policy addressed to the Special Committee fact, P.D. to halt the acceptance and processing of applications for repatriation 725 29 itself requires very little of an applicant, and even the rules and pending whatever "judgment the first Congress under the 1987 Constitution" regulations to implement the said decree were left to the Special Committee might make. In other words, the former President did not repeal P.D. 725 but to promulgate. This is not unusual since, unlike in naturalization where an left it to the first Congress -- once created -- to deal with the matter. If she alien covets afirst-time entry into Philippine political life, in repatriation the had intended to repeal such law, she should have unequivocally said so applicant is a former natural-born Filipino who is merely seeking to reacquire instead of referring the matter to Congress. The fact is she carefully his previous citizenship. In the case of Frivaldo, he was undoubtedly a couched her presidential issuance in terms that clearly indicated the natural-born citizen who openly and faithfully served his country and his intention of "the present government, in the exercise of prudence and sound province prior to his naturalization in the United States -- a naturalization he discretion" to leave the matter of repeal to the new Congress. Any other insists was made necessary only to escape the iron clutches of a interpretation of the said Presidential Memorandum, such as is now being dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space,

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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.

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 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 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 whereas the citizenship qualification prescribed by the Local Government day 32 the term of office of governor (and other elective officials) began -- he Code "must exist on the date of his election, if not when the certificate of 30 candidacy is filed," citing our decision in G.R. 104654 which held that "both was therefore already qualified to be proclaimed, to hold such office and to the Local Government Code and the Constitution require that only Philippine 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 citizens can run and be elected to public office." Obviously, however, this the liberal interpretation that should give spirit, life and meaning to our law was a mere obiter as the only issue in said case was whether Frivaldo's on qualifications consistent with the purpose for which such law was naturalization was valid or not -- and NOT the effective date thereof. Since enacted. So too, even from a literal (as distinguished from liberal) the Court held his naturalization to be invalid, then the issue of when an construction, it should be noted that Section 39 of the Local Government aspirant for public office should be a citizen was NOT resolved at all by the Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of Court. Which question we shall now directly rule on. 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 Under Sec. 39 of the Local Government Code, "(a)n elective local official insists? Literally, such qualifications -- unless otherwise expressly must be: 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 * a citizen of the Philippines; 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 * a registered voter in the barangay, municipality, city, or Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure province . . . where he intends to be elected; 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 * a resident therein for at least one (1) year immediately be thwarted but instead achieved by construing the citizenship qualification preceding the day of the election; as applying to the time of proclamation of the elected official and at the start of his term. * able to read and write Filipino or any other local language or dialect. But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be * In addition, "candidates for the position of governor . . . possessed at the time the candidate (or for that matter the elected official) must be at least twenty-three (23) years of age on election registered as a voter. After all, Section 39, apart from requiring the official to day. 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

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a validly registered one -- if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenshipqualification 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 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected. 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 "judiciallydeclared" alienage. Hence, at such time, he was no longer ineligible. 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 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

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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 remedy and 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).

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 ifthe 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 In this case, P.D. No. 725 was enacted to cure the defect in under said law to Frivaldo on June 30, 1995 is to be deemed to have the existing naturalization law, specifically C.A. No. 63 retroacted to the date of his application therefor, August 17, 1994. The wherein married Filipino women are allowed to repatriate reason for this is simply that if, as in this case, it was the intent of the only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other legislative authority that the law should apply to past events -- i.e., situations causes faced the difficulty of undergoing the rigid procedures and transactions existing even before the law came into being -- in order to benefit the greatest number of former Filipinos possible thereby enabling of C.A. 63 for reacquisition of Filipino citizenship by them to enjoy and exercise the constitutionally guaranteed right of naturalization. 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

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subsequent to the passage of such law. That is, the 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.

(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 Another argument for retroactivity to the date of filing is that it would prevent before that, when he ran for governor in 1988. In his Comment, Frivaldo prejudice to applicants. If P.D. 725 were not to be given retroactive effect, wrote that he "had long renounced and had long abandoned his American and the Special Committee decides not to act, i.e., to delay the processing citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the of applications for any substantial length of time, then the former Filipinos interim -- when he abandoned and renounced his US citizenship but before who may be stateless, as Frivaldo -- having already renounced his American he was repatriated to his Filipino citizenship." 50 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 On this point, we quote from the assailed Resolution dated December 19, is to be presumed that the law-making body intended right and justice to 1995: 51 4 prevail. 7 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 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: Is Lack of Citizenship a Continuing Disqualification? Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its

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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 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: Comelec's Jurisdiction Over The Petition in SPC No. 95-317 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 5day 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, inMentang vs. COMELEC, 59 we ruled: The petitioner argues that after proclamation and assumption of office, a pre-proclamation 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

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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 62case, as follows: 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. Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected. The Fifth Issue: Is Section 78 of the Election Code Mandatory? 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

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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 of Mr. Justice Davide's Dissent 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 the fifteen day period mentioned in Section 78. Here, we rule that a decisionpromulgated 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

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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 truepost 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 elective local 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 same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.

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 Mr. Justice Davide also questions the giving of retroactive effect to having been forced to give up his citizenship and political aspiration as his Frivaldo's repatriation on the ground, among others, that the law specifically means of escaping a regime he abhorred, his repatriation is to be given provides that it is only after taking the oath of allegiance that applicants shall retroactive effect as of the date of his application therefor, during the be deemed to have reacquired Philippine citizenship. We do not question pendency of which he was stateless, he having given up his U.S. nationality. what the provision states. We hold however that the provision should be Thus, in contemplation of law, he possessed the vital requirement of Filipino understood thus: that after taking the oath of allegiance the applicant is citizenship as of the start of the term of office of governor, and should have deemed to have reacquired Philippine citizenship, which reacquisition (or been proclaimed instead of Lee. Furthermore, since his reacquisition of repatriation) is deemed for all purposes and intents to have retroacted to the citizenship retroacted to August 17, 1994, his registration as a voter of date of his application therefor. 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 In any event, our "so too" argument regarding the literal meaning of the word the citizenship requirement is not a continuing disability or disqualification to "elective" in reference to Section 39 of the Local Authority Code, as well as run for and hold public office. And once again, we emphasize herein our

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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 laws so zealously protect and promote. In this undertaking, Lee has miserably failed. 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. 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. (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. 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.

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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."

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 the firstin 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. In our Constitution, the people established a representative democracy as Sovereignty resides in the people and all government authority emanates 8 from them." The same principle served as the bedrock of our 1973 and 1935 distinguished from a pure democracy. Justice Isagani Cruz explains: Constitutions. 1 It is one of the few principles whose truth has been xxx xxx xxx 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, A republic is a representative government, a government run the American authorities imposed republicanism as the cornerstone of our by and for the people. It is not a pure democracy where the 1935 Constitution then being crafted by its Filipino framers. 2 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 Borne out of the 1986 people power EDSA revolution, our 1987 Constitution their mandate from the people and act on their behalf, is more people-oriented. Thus, section 4 of Article II provides as a state serving for a limited period only, after which they are policy that the prime duty of the Government is "to serve and protect the replaced or retained, at the option of their people." Section 1, Article XI also provides that ". . . public officers . . . must principal. Obviously, a republican government is a at all times be accountable to the people . . ." Sections 15 and 1 of Article responsible government whose officials hold and discharge XIII define the role and rights of people's organizations. Section 5(2) of

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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 beexercised 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 Vice-President 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.

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 It is my respectful submission that the issue in the case at bar is not whether political history. For three (3) times, Frivaldo ran as governor of the province the people of Sorsogon should be given the right to defy the law by allowing of Sorsogon. For two (2) times, he was disqualified on the ground of Frivaldo to sit as their governor. Rather, the issue is: whether the will of the citizenship. The people of Sorsogon voted for him as their governor despite votersof Sorsogon clearly choosing Frivaldo as governor ought to be given his disqualification. The people never waffled in their support for Frivaldo. In a decisive value considering the uncertainty of the law on when a candidate 1988, they gave him a winning margin of 27,000; in 1992, they gave him a ought to satisfy the qualification of citizenship. The uncertainty of law and winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly jurisprudence, both here and abroad, on this legal issue cannot be denied. then, Frivaldo is the overwhelming choice of the people of Sorsogon. In In the United States, 10 there are two (2) principal schools of thought on the election cases, we should strive to align the will of the legislature as matter. One espouses the view that a candidate must possess the expressed in its law with the will of the sovereign people as expressed in qualifications for office at the time of his election. The other ventures the their ballots. For law to reign, it must respect the will of the people. For in the view that the candidate should satisfy the qualifications at the time he eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a assumes the powers of the office. I am unaware of any Philippine decision particle of popular sovereignty and is the ultimate source of established that has squarely resolved this difficult question of law. The ponencia of Mr. authority." 11 The choice of the governed on who shall be their governor Justice Panganiban adhered to the second school of thought while Mr. merits the highest consideration by all agencies of government. In cases Justice Davide dissents. 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 I emphasize the honest-to-goodness difference in interpreting our law on the succeed. 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 DAVIDE, JR., J., dissenting: theassumption that Frivaldo continues to be disqualified and we cannot

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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 onlysuspended 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 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 an electedlocal 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:

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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 twenty-three (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 twenty-one (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 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

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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 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

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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 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 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.

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 xxx xxx xxx 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 Sec. 68. Disqualifications. Any candidate who, in an action Philippine citizenship is not a right, but a mere privilege. Before the advent or protest in which he is a party is declared by final decision of P.D. No. 725, only the following could apply for repatriation: (a) Army, of a competent court guilty of, or found by the Commission of Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by having (a) given money or other material consideration to reason of her marriage to an alien after the death of her spouse (Section influence, induce or corrupt the voters or public officials 2[2], C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women performing electoral functions; (b) committed acts of who lost their Philippine citizenship by marriage to aliens even before the terrorism to enhance his candidacy; (c) spent in his election death of their alien husbands, or the termination of their marital status and to campaign an amount in excess of that allowed by this Code; natural-born Filipino citizens who lost their Philippine citizenship but (d) solicited, received or made any contribution prohibited subsequently desired to reacquire the latter. 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 Turning now to the letter of the law, P.D. No. 725 expressly provides that cc, sub-paragraph 6, shall be disqualified from continuing as repatriation takes effect only after taking the oath of allegiance to the a candidate, or if he has been elected, from holding the Republic of the Philippines, thus: office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for . . . may reacquire Philippine citizenship . . . by applying with any elective office under this Code, unless said person has the Special Committee on Naturalization created by Letter of waived his status as permanent resident or immigrant of a Instruction No. 270, and, if their applications are approved, foreign country in accordance with the residence taking the necessary oath of allegiance to the Republic of requirement provided for in the election laws. (Sec. 25, 1971 the Philippines, AFTER WHICH THEY SHALL BE DEEMED EC) TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP. 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 (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

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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], 270271, 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

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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.

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 profamily (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 VI executed in the said province or municipality. More concretely, if, for Finally, I find it in order to also express my view on the concurring opinion of 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 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 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 1987 Constitution" and that the said Constitution is "more people-oriented," armed forces, or depriving the Chief Executive or the Legislature, wholly or "borne [as it is] out of the 1986 people power EDSA revolution." I would partially, of any of their powers or prerogatives, then those who did so -- and even go further by saying that this Constitution is pro-God (Preamble), prowhich are composed of the vast majority of the people of Batanes -- a people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1, Article political subdivision -- cannot be prosecuted for or be held guilty of rebellion XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, in violation of Article 134 of the Revised Penal Code because of the doctrine

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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.

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 vacate his office. On the basis of this latter Supreme Court ruling, the Comelec disqualified Frivaldo in SPA No. 95-028. 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. 8 Rollo, p. 60. 9 Rollo, pp. 61-67.

1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente; Comm. Graduacion A.R. Claravall, concurring, and Comm. Julio F. Desamito, dissenting. 2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee, respondent; rollo, pp. 110-129.

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

12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989). 3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe and 13 Rollo, pp. 110-128. Teresita Dy-Liaco Flores. Chairman Pardo certified that "Commissioner Julio F. Desamito was on official travel at the time of the deliberation and 14 Rollo, pp. 159-170. resolution of this case. However, the Commission has reserved to Comm. Desamito the right to submit a dissenting opinion." Rollo, pp. 159-171. 15 Rollo, pp. 16-17; petition, pp. 14-15. 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, 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.

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20 See footnote no. 6, supra.

(Sgd.) Corazon C. Aquino

21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No. Manila, March 27, 1987. 87193, supra, p. 254, observed that "(i)f he (Frivaldo) really wanted to disavow his American citizenship and reacquire Philippine citizenship, 25 Art. 7, Civil Code of the Philippines. 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 26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995). citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation." 27 Petition, p. 28; rollo, p. 30. 22 Supra, p. 794. 23 Petition, p. 27; rollo, p. 29. 24 The full text of said memorandum reads as follows: MEMORANDUM TO : The Solicitor General The Undersecretary of Foreign Affairs The Director-General National Intelligence Coordinating Agency 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. 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. 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 2. Manuel Reyes Sanchez 901 3. Ma. Nelly Dessalla Ty 902 4. Terry Herrera and Antonio Ching 903 5. Roberto Salas Benedicto 904 6. Winthrop Santos Liwag 905 7. Samuel M. Buyco 906 8. Joselito Holganza Ruiz 907 9. Samuel Villanueva 908 10. Juan Leonardo Collas, Jr. 909

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11. Felicilda Otilla Sacnanas-Chua 910 29 The text of P.D. 725 is reproduced below: PRESIDENTIAL DECREE No. 725

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.

PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN FILIPINOS. WHEREAS, there are many Filipino women who had lost their Philippine citizenship by marriage to aliens;

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.

WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to retain her Philippine citizenship unless by her act or omission, 33 96 Phil. 447, 453 (1955). 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 34 The following are excerpts from the transcript of stenographic notes of had married aliens before said constitution took effect; the oral argument held on March 19, 1996: 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; 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. 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

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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: 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.

JUSTICE PANGANIBAN: But the fact that he voted does not make him a citizen. The fact is, he was declared not a citizen 36 Comment, p. 11; rollo, p. 259. 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. 37 See footnote no. 33. 38 Section 253 reads as follows:

JUSTICE PANGANIBAN: I raised this question in connection with your contention that citizenship should be determined Any voter contesting the election of any municipal or barangay officer on the as of the time of proclamation and not as of the time of the ground of ineligibility or of disloyalty to the Republic of the Philippines shall election or at the time of the filing of the certificate of file a sworn petition for quo warranto with the regional trial court or candidacy. 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 ATTY. BRILLANTES: That is true, Your Honor. EC).

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).

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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: 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 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 sameday 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. 55 Resolution promulgated on December 19, 1995, p. 7; rollo, p. 116. 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; b) Ordering the proclamation of the petitioner as duly elected governor of Sorsogon; xxx xxx xxx 59 229 SCRA 666, 674 (February 4, 1994). 60 211 SCRA 297, 309 (July 3, 1992). 61 G.R. No. 120265, September 18, 1995.

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62 Supra, at p. 312. 63 See footnotes 2 and 3. 64 174 SCRA 245, 254 (June 23, 1959). 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 in Aznar 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, 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: 1 The 1987 Constitution added the word "democratic" in the statement of the principle. 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."

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

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& SUPREME COURT Manila EN BANC

citizenship are disqualified from running for any elective position. The COMELEC's Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, September 14, 1955, and is considered in American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is born a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City. On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion remained pending even until after the election held on May 11, 1998.

G.R. No. 135083 May 26, 1999 ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano 103,853 Ernesto S. Mercado 100,894 Gabriel V. Daza III 54,275 1 The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual

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Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's motion was opposed by private respondent. The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. 5 The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli.

Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondent's certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.

He was also a natural born Filipino citizen by operation of ACCORDINGLY, the Commission directs the Makati City the 1935 Philippine Constitution, as his father and mother Board of Canvassers, upon proper notice to the parties, to were Filipinos at the time of his birth. At the age of six (6), reconvene and proclaim the respondent Eduardo Luis his parents brought him to the Philippines using an American Barrios Manzano as the winning candidate for vice-mayor of passport as travel document. His parents also registered him Makati City. as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he Pursuant to the resolution of the COMELEC en banc, the board of did not renounce Philippine citizenship and did not take an canvassers, on the evening of August 31, 1998, proclaimed private oath of allegiance to the United States. respondent as vice mayor of the City of Makati. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,

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2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998. B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati; C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati.

Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado his personality to bring Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule to intervene granted. in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to cases in which the election of the respondent is contested, and the question is I. PETITIONER'S RIGHT TO BRING THIS SUIT whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Private respondent cites the following provisions of Rule 8 of the Rules of "Motion for Leave to File Intervention" on May 20, 1998, there had been no Procedure of the COMELEC in support of his claim that petitioner has no proclamation of the winner, and petitioner's purpose was precisely to have right to intervene and, therefore, cannot bring this suit to set aside the ruling private respondent disqualified "from running for [an] elective local position" denying his motion for intervention: under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was Sec. 1. When proper and when may be permitted to competent to bring the action, so was petitioner since the latter was a rival intervene. Any person allowed to initiate an action or candidate for vice mayor of Makati City. proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its Nor is petitioner's interest in the matter in litigation any less because he filed discretion to intervene in such action or proceeding, if he has a motion for intervention only on May 20, 1998, after private respondent had legal interest in the matter in litigation, or in the success of been shown to have garnered the highest number of votes among the either of the parties, or an interest against both, or when he candidates for vice mayor. That petitioner had a right to intervene at that is so situated as to be adversely affected by such action or stage of the proceedings for the disqualification against private respondent proceeding. is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides: xxx xxx xxx Sec. 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Any candidate who his 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 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 guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private respondent's alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City. II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the Charter of the City of Makati. 8 Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office." To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the

said states. 9 For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father's' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: 10

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. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance and I reiterate a dual allegiance is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth

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on foreign soil. And so, I do not question double citizenship at all.

follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.

What we would like the Committee to consider is to take In another session of the Commission, Ople spoke on the problem of these constitutional cognizance of the problem of dual allegiance. citizens with dual allegiance, thus: 11 For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of . . . A significant number of Commissioners expressed their Commerce which consists of about 600 chapters all over the concern about dual citizenship in the sense that it implies a country. There is a Peking ticket, as well as a Taipei ticket. double allegiance under a double sovereignty which some of Not widely known is the fact chat the Filipino-Chinese us who spoke then in a freewheeling debate thought would community is represented in the Legislative Yuan of the be repugnant to the sovereignty which pervades the Republic of China in Taiwan. And until recently, sponsor Constitution and to citizenship itself which implies a might recall, in Mainland China in the People's Republic of uniqueness and which elsewhere in the Constitution is China, they have the Associated Legislative Council for defined in terms of rights and obligations exclusive to that overseas Chinese wherein all of Southeast Asia including citizenship including, of course, the obligation to rise to the some European and Latin countries were represented, which defense of the State when it is threatened, and back of this, was dissolved after several years because of diplomatic Commissioner Bernas, is, of course, the concern for national friction. At that time, the Filipino-Chinese were also security. In the course of those debates, I think some noted represented in that Overseas Council. the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the When I speak of double allegiance, therefore, I speak of this People's Republic of China was made in 1975, a good unsettled kind of allegiance of Filipinos, of citizens who are number of these naturalized Filipinos still routinely go to already Filipinos but who, by their acts, may be said to be Taipei every October 10; and it is asserted that some of bound by a second allegiance, either to Peking or Taiwan. I them do renew their oath of allegiance to a foreign also took close note of the concern expressed by some government maybe just to enter into the spirit of the Commissioners yesterday, including Commissioner occasion when the anniversary of the Sun Yat-Sen Republic Villacorta, who were concerned about the lack of guarantees is commemorated. And so, I have detected a genuine and of thorough assimilation, and especially Commissioner deep concern about double citizenship, with its attendant risk Concepcion who has always been worried about minority of double allegiance which is repugnant to our sovereignty claims on our natural resources. and national security. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real Dull allegiance can actually siphon scarce national capital to impact on the security of this country, arising from, let us Taiwan, Singapore, China or Malaysia, and this is already say, potentially great numbers of double citizens professing happening. Some of the great commercial places in double allegiance, will the Committee entertain a proposed downtown Taipei are Filipino-owned, owned by Filipinoamendment at the proper time that will prohibit, in effect, or Chinese it is of common knowledge in Manila. It can regulate double citizenship? mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest. Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin And so, this is exactly what we ask that the Committee even after their naturalization. Hence, the phrase "dual citizenship" in R.A. kindly consider incorporating a new section, probably No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring Section 5, in the article on Citizenship which will read as

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to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether she is considered a citizen of another country is something completely beyond our control." 12 By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: 13 SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic, 15 it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounce, his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the

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condition imposed by law is satisfied and compiled with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic. III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine ofjus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that now he is solely a Philippine national. Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority.

foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath: 6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN xxx xxx xxx 10. I AM A REGISTERED VOTER OF PRECINCT NO. 747A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR. 11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. 12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American In holding that by voting in Philippine elections private respondent citizenship, effectively removing any disqualification he might have as a dual renounced his American citizenship, the COMELEC must have in mind 349 citizen. Thus, in Frivaldo v. COMELEC it was held: 17 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States, whether by birth or It is not disputed that on January 20, 1983 Frivaldo became naturalization, shall lose his nationality by: . . . (e) Voting in a political an American. Would the retroactivity of his repatriation not election in a foreign state or participating in an election or plebiscite to effectively give him dual citizenship, which under Sec. 40 of determine the sovereignty over foreign territory." To be sure this provision the Local Government Code would disqualify him "from was declared unconstitutional by the U.S. Supreme Court in Afroyim running for any elective local position?" We answer this 16 v. Rusk as beyond the power given to the U.S. Congress to regulate

question in the negative, as there is cogent reason to hold citizenship. What this Court said in Aznar v. COMELEC 18 appliesmutatis that Frivaldo was really STATELESS at the time he took said mundatis to private respondent in the case at bar: oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he . . . Considering the fact that admittedly Osmea was both a "had long renounced and had long abandoned his American Filipino and an American, the mere fact that he has a citizenship long before May 8, 1995. At best, Frivaldo was Certificate staring he is an American does not mean that he stateless in the interim when he abandoned and is not still a Filipino. . . . [T]he Certification that he is an renounced his US citizenship but before he was repatriated American does not mean that he is not still a Filipino, to his Filipino citizenship." possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine On this point, we quote from the assailed Resolution dated citizenship; truth to tell, there is even no implied renunciation December 19, 1995: of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine By the laws of the United States, petitioner citizenship when there is no renunciation, either "express" or Frivaldo lost his American citizenship when "implied." he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. To recapitulate, by declaring in his certificate of candidacy that he is a Every certificate of candidacy contains an Filipino citizen; that he is not a permanent resident or immigrant of another oath of allegiance to the Philippine country; that he will defend and support the Constitution of the Philippines Government. and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything These factual findings that Frivaldo has lost his foreign which he may have said before as a dual citizen. 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, On the other hand, private respondent's oath of allegiance to the absent any showing of capriciousness or arbitrariness or Philippines, when considered with the fact that he has spent his youth and abuse. adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective, such renunciation His declarations will be taken upon the faith that he will fulfill his undertaking should have been made upon private respondent reaching the age of made under oath. Should he betray that trust, there are enough sanctions majority since no law requires the election of Philippine citizenship to be for declaring the loss of his Philippine citizenship through expatriation in made upon majority age. appropriate proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial of entry into the country of petitioner on the ground that, after taking Finally, much is made of the fact that private respondent admitted that he is his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed registered as an American citizen in the Bureau of Immigration and abroad that he was a Portuguese national. A similar sanction can be taken Deportation and that he holds an American passport which he used in his against any one who, in electing Philippine citizenship, renounces his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American

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WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Panganiban and Purisima, JJ., are on leave. Pardo, J., took no part. Footnotes 1 Petition, Rollo, p. 5. 2 Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M. Guiani. 3 Id., Annex E, Rollo, pp. 50-63. 4 Rollo, pp. 78-83. 5 Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco Flores, Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented. 6 176 SCRA 1 (1989). 7 Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1991); Aquino v. COMELEC, 248 SCRA 400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996). 8 R.A. No. 7854, the Charter of the City of Makati, provides: "SEC. 20 The following are disqualified from running for any elective position in the city: . . . (d) Those with dual citizenship."

9 JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995). 10 Id., at 361 (Session of July 8, 1986). 11 Id., at 233-234 (Session of June 25, 1986). 12 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 1986). 13 Transcript, pp. 5-6, Session of Nov. 27, 1990. 14 C.A. No. 473, 12. 15 86 Phil. 310, 343 (1950). 16 387 U.S. 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958). 17 257 SCRA 727, 759-760 (1996). 18 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952). 19 169 SCRA 364 (1989).

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& SUPREME COURT Manila EN BANC G.R. No. 151914 July 31, 2002

On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was approved by the Election Registration Board on January 12, 2001.6 On February 27, 2001, he filed his certificate of candidacy stating therein that he had been a resident of Oras, Eastern Samar for "two (2) years."7 On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for reelection, sought the cancellation of petitioners certificate of candidacy on the ground that the latter had made a material misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the Philippines. The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes (6,131) against private respondents 5,752 votes, or a margin of 379 votes. On May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.8 He subsequently took his oath of office. On July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the cancellation of petitioners certificate of candidacy on the basis of the following findings: Respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68 of the Omnibus Election Code. The one (1) year residency requirement contemplates of the actual residence of a Filipino citizen in the constituency where he seeks to be elected. All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in days, months, and year to allow or render him eligible to run for an

TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents. MENDOZA, J.: This is a petition for certiorari to set aside the resolution,1 dated July 19, 2001, of the Second Division of the Commission on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the COMELEC en banc denying petitioners motion for reconsideration. The facts are as follows: Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.2 From 1970 to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.3 Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the United States. On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.4Subsequently, petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on Naturalization. His application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration Identification Certificate No. 115123 on November 13, 2000.

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elective office in the Philippines. Under such circumstances, by whatever formula of computation used, respondent is short of the one-year residence requirement before the May 14, 2001 elections.9 Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition. I. Two questions must first be resolved before considering the merits of this case: (a) whether the 30-day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and (b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner. A. With respect to the first question, private respondent contends that the petition in this case should be dismissed because it was filed late; that the COMELEC en banc had denied petitioners motion for reconsideration for being pro forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not suspend the running of the 30day period for filing this petition. He points out that petitioner received a copy of the resolution, dated July 19, 2001, of the COMELECs Second Division on July 28, 2001, so that he had only until August 27, 2001 within which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as having been filed late and should be dismissed. Private respondents contention has no merit. Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts: Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order, or ruling. Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to reconsider a decision, resolution, order, or ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.

The five-day period for filing a motion for reconsideration under Rule 19, 2 should be counted from the receipt of the decision, resolution, order, or ruling of the COMELEC Division.10 In this case, petitioner received a copy of the resolution of July 19, 2001 of the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his motion for reconsideration. On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the COMELEC en banc denying his motion for reconsideration. Five days later, on February 11, 2002, he filed this petition for certiorari. There is no question, therefore, that petitioners motion for reconsideration of the resolution of the COMELEC Second Division, as well as his petition for certiorari to set aside of the order of the COMELEC en banc, was filed within the period provided for in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the Constitution. It is contended, however, that petitioners motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent cites the finding of the COMELEC en banc that An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of his averments contained in his Verified Answer and Memorandum. Neither did respondent raise new matters that would sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.11 We do not think this contention is correct. The motion for reconsideration was not pro forma and its filing did suspend the period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy would not be a reconsideration of the decision but a new trial or some other remedy.12 But, as we have held in another case:13 Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered,

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the losing party would be confined to filing only motions for reopening and new trial. Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration,14 or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence,15 or (3) it failed to substantiate the alleged errors,15 or (4) it merely alleged that the decision in question was contrary to law,17 or (5) the adverse party was not given notice thereof.18 The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioners motion for reconsideration was pro forma because the allegations raised therein are a mere "rehash" of his earlier pleadings or did not raise "new matters." Hence, the filing of the motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law. B. As stated before, the COMELEC failed to resolve private respondents petition for cancellation of petitioners certificate of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was proclaimed elected with a margin of 379 votes over private respondent. Did the COMELEC thereby lose authority to act on the petition filed by private respondent? R.A. No. 6646 provides: SECTION 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 added) SECTION 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. The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v. COMELEC19 and Salcedo II v. COMELEC,20 the candidates whose certificates of candidacy were the subject of petitions for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates proclamation but on the merits. II. On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy. We find that he had not. First, 39(a) of the Local Government Code (R.A No. 7160) provides: 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. (Emphasis added) The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation,"21 but rather to "domicile" or legal residence,22 that is, "the place where a party actually or constructively has

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his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."23 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).24

Nor can petitioner contend that he was "compelled to adopt American citizenship" only by reason of his service in the U.S. armed forces.26 It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, In the case at bar, petitioner lost his domicile of origin in Oras by becoming a among others, natural-born Filipinos who lost their citizenship on account of political or economic necessity. In any event, the fact is that, by having been U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until naturalized abroad, he lost his Philippine citizenship and with it his residence November 10, 2000, when he reacquired Philippine citizenship, petitioner in the Philippines. Until his reacquisition of Philippine citizenship on was an alien without any right to reside in the Philippines save as our November 10, 2000, petitioner did not reacquire his legal residence in this immigration laws may have allowed him to stay as a visitor or as a resident country. alien. Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by "constantly declaring" to his townmates of his intention to seek Requirements of naturalization. Residence repatriation and run for mayor in the May 14, 2001 elections.27 The status of being an alien and a non-resident can be waived either separately, when (a) No person, except as otherwise provided in this subchapter, shall one acquires the status of a resident alien before acquiring Philippine be naturalized unless such applicant, (1) immediately preceding the citizenship, or at the same time when one acquires Philippine citizenship. As date of filing his application for naturalization has resided an alien, an individual may obtain an immigrant visa under 1328 of the continuously, after being lawfully admitted for permanent residence, Philippine Immigration Act of 1948 and an Immigrant Certificate of within the United States for at least five years and during the five Residence (ICR)29 and thus waive his status as a non-resident. On the other years immediately preceding the date of filing his petition has been hand, he may acquire Philippine citizenship by naturalization under C.A. No. physically present therein for periods totaling at least half of that 473, as amended, or, if he is a former Philippine national, he may reacquire time, and who has resided within the State or within the district of the Philippine citizenship by repatriation or by an act of Congress,30 in which Service in the United States in which the applicant filed the case he waives not only his status as an alien but also his status as a nonapplication for at least three months, (2) has resided continuously resident alien. within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the period referred In the case at bar, the only evidence of petitioners status when he entered to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United the country on October 15, 1998, December 20, 1998, October 16, 1999, and June 23, 2000 is the statement "Philippine Immigration [] Balikbayan" States, and well disposed to the good order and happiness of the in his 1998-2008 U.S. passport. As for his entry on August 5, 2000, the United States. (Emphasis added) stamp bore the added inscription "good for one year stay."31 Under 2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the In Caasi v. Court of Appeals,25 this Court ruled that immigration to the term balikbayan includes a former Filipino citizen who had been naturalized United States by virtue of a "greencard," which entitles one to reside in a foreign country and comes or returns to the Philippines and, if so, he is permanently in that country, constitutes abandonment of domicile in the entitled, among others, to a "visa-free entry to the Philippines for a period of Philippines. With more reason then does naturalization in a foreign country one (1) year" (3(c)). It would appear then that when petitioner entered the result in an abandonment of domicile in the Philippines. country on the dates in question, he did so as a visa-free balikbayanvisitor whose stay as such was valid for one year only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides:

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November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171.32 He lacked the requisite residency to qualify him for the mayorship of Oras, Eastern, Samar. Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in support of his contention that the residency requirement in 39(a) of the Local Government Code includes the residency of one who is not a citizen of the Philippines. Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The question in Frivaldo was whether petitioner, who took his oath of repatriation on the same day that his term as governor of Sorsogon began on June 30, 1995, complied with the citizenship requirement under 39(a). It was held that he had, because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as already noted, 39(a) of the Local Government Code requires that the candidate must have been a resident of the municipality "for at least one (1) year immediately preceding the day of the election." Nor can petitioner invoke this Courts ruling in Bengzon III v. House of Representatives Electoral Tribunal.34 What the Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original status as a natural-born citizen. Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election. As held in Nuval v. Guray,35 however, registration as a voter does not bar the filing of a subsequent case questioning a candidates lack of residency. Petitioners invocation of the liberal interpretation of election laws cannot avail him any. As held in Aquino v. Commission on Elections:36 A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City

would substitute for a requirement mandated by the fundamental law itself. Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus notde rigeur. In any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this petition, which, contrary to petitioners claim, are complete and intact in the records. III. The statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for "two years" at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the cancellation of his certificate of candidacy for this reason. We hold that it was. Petitioner made a false representation of a material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. The Omnibus Election Code provides: SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to

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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. Indeed, it has been held that a candidates statement in her certificate of candidacy for the position of governor of Leyte that she was a resident of Kananga, Leyte when this was not so37 or that the candidate was a "naturalborn" Filipino when in fact he had become an Australian citizen38 constitutes a ground for the cancellation of a certificate of candidacy. On the other hand, we held in Salcedo II v. COMELEC39 that a candidate who used her husbands family name even though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy. The cancellation of petitioners certificate of candidacy in this case is thus fully justified. WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections, dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, and Corona, JJ., concur.

Footnotes 1 Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioners Mehol K. Sadain and Florentino A. Tuazon, Jr. 2 The records do not disclose when petitioner became a U.S. citizen. 3 Records, pp. 167-169. 4 Petitioners U.S. passport for 1998-2008 shows the following dates of arrival in the Philippines and dates of departure for the United States: arrival - October 15, 1998, departure - November 3, 1998; arrival - December 20, 1998 (with no record of corresponding

departure); arrival - October 16, 1999, departure - November 1, 1999; arrival - June 23, 2000, departure - July 6, 2000; arrival August 5, 2000 (Records, pp. 227-228). 5 This law, entitled AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND NATURAL-BORN FILIPINOS, applies to former natural-born Filipinos who have lost their Philippine citizenship on account of economic or political necessity. It would appear that petitioner was repatriated under this law on the ground that he lost his Philippine citizenship on account of economic necessity. 6 Petition, Annex O, p. 56. 7 Id., Annex C, p. 34. 8 Id., Annex H, p. 46. 9 Resolution, p. 7-8; Rollo, pp. 30-31 (emphasis added). 10 Bulaong v. COMELEC, 220 SCRA 745 (1993). 11 Order, pp. 1-2; Rollo, pp. 32-33. 12 Siy v. Court of Appeals, 138 SCRA 536 (1985); Continental Cement Corporation v. Court of Appeals, 184 SCRA 728 (1990). 13 Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur, 32 SCRA 314, 317 (1970). 14 Manila Trading v. Enriquez, 1 SCRA 1056 (1961); City of Cebu v. Mendoza, 62 SCRA 440 (1975); Debuque v. Climaco, 99 SCRA 353 (1980); Garcia v. Echiverri, 132 SCRA 631 (1984); Commissioner of Internal Revenue v. Island Garment Manufacturing Corporation, 153 SCRA 665 (1987); Vda. de Espina v. Abaya, 196 SCRA 312 (1991). 15 A similar rule is found in Rule 19, 3 of the COMELEC Rules of Procedure. 16 Villarica v. Court of Appeals, 57 SCRA 24 (1974). 17 Jessena v. Hervas, 83 SCRA 799 (1978); Marikina Valley Development Corporation v. Flojo, 251 SCRA 87 (1995); Nieto v. De los Angeles, 109 SCRA 229 (1981). 18 Sembrano v. Ramirez, 166 SCRA 30 (1988); Pojas v. GozoDadole, 192 SCRA 575 (1990); Bank of the Philippine Islands v. Far East Molasses Corporation, 198 SCRA 689 (1991). 19 201 SCRA 253 (1991). 20 312 SCRA 447 (1999). 21 Uytengsu v. Republic, 95 Phil. 890, 894 (1954). 22 Nuval v. Guray, 52 Phil. 645 (1928); Gallego v. Verra, 73 Phil. 453 (1941); Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408 (1993). 23 Aquino v. COMELEC, 248 SCRA 400, 420 (1995). 24 25 Am. Jur. 2d, 11.

25

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191 SCRA 229 (1990). 26 Petition, p. 6; Rollo, p. 8. 27 Id., pp. 9-11; id., pp. 11-13. 28 This provision states: "Under the conditions set forth in this Act, there may be admitted in the Philippines immigrants, termed "quota immigrants" not in excess of fifty (50) of any one nationality or without nationality for any one calendar year, except that the following immigrants, termed "nonquota immigrants," may be admitted without regard to such numerical limitations. The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the last paragraph of section 9 of this Act. (a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen, if accompanying or following to join such citizen; (b) A child of alien parents born during the temporary visit abroad of the mother, the mother having been previously lawfully admitted into the Philippine for permanent residence, if the child is accompanying or coming to join a parent and applies for admission within five years from the date of its birth; (c) A child born subsequent to the issuance of the immigration visa of the accompanying parent, the visa not having expired; (d) A woman who was citizen of the Philippines and who lost her citizenship because of her marriage to an alien or by reason of the loss of Philippine citizenship by her husband, and her unmarried child under twenty-one years of age, if accompanying or following to join her; (e) A person previously lawfully admitted into the Philippines for permanent residence, who is returning from a temporary visit abroad to an unrelinquished residence in the Philippines, (As amended by Sec. 5, Rep. Act No. 503.) (f) The wife or the husband or the unmarried child under twenty-one years of age, of an alien lawfully admitted into the Philippines for permanent residence prior to the date on which this Act becomes effective and who is resident therein,

if such wife, husband, or child applies for admission within a period of two years following the date on which this Act becomes effective; (g) A natural born citizen of the Philippines, who has been naturalized in a foreign country, and is returning to the Philippines for permanent residence, including the spouse and minor children, shall be considered a non-quota immigrant for purposes of entering the Philippines (As amended by Rep. Act No. 4376, approved June 19, 1965)." 29 See R. Ledesma, An Outline of Philippine Immigration and Citizenship Laws 135 (1999). 30 C.A. No. 63, 2. 31 Records, pp. 227-228. 32 The COMELEC considered November 10, 2000 as the date of petitioners repatriation. Section 2 of R.A. No. 8171 provides, however, "Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen." 33 257 SCRA 727 (1996). 34 G.R. No. 142840, May 7, 2001. 35 54 Phil. 645 (1928). 36 248 SCRA 400, 429 (1995). 37 Abella v. Larazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991). 38 Labo, Jr. v. COMELEC, 211 SCRA 297 (1992). 39 312 SCRA 447 (1999).

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& SUPREME COURT Manila EN BANC G.R. No. 180088 January 19, 2009

MANUEL B. JAPZON, Petitioner, vs. COMMISSION ON ELECTIONS and JAIME S. TY, Respondents. DECISION CHICO-NAZARIO, J.:

may have applied for the reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as an American citizen as proven by his travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from running for public office and the cancellation of the latters Certificate of Candidacy.

In his Answer6 to Japzons Petition in SPA No. 07-568, Ty admitted that he was a natural-born Filipino who went to the USA to work and subsequently This is a Petition for Review on Certiorari under Rules 64 and 65 of the became a naturalized American citizen. Ty claimed, however, that prior to Revised Rules of Court seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public respondent filing his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for having been performed the following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos, Ty filed with the rendered with grave abuse of discretion, amounting to lack or excess of Philippine Consulate General in Los Angeles, California, USA, an jurisdiction. application for the reacquisition of his Philippine citizenship; (2) on 2 October Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. 2005, Ty executed an Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Ty (Ty) were candidates for the Office of Mayor of the Municipality of Los Angeles, California, USA; (3) Ty applied for a Philippine passport General Macarthur, Eastern Samar, in the local elections held on 14 May indicating in his application that his residence in the Philippines was at A. 2007. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Tys application was approved and he was issued on 26 October 2005 a On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the 5 Philippine passport; (4) on 8 March 2006, Ty personally secured and signed COMELEC a Petition to disqualify and/or cancel Tys Certificate of his Community Tax Certificate (CTC) from the Municipality of General Candidacy on the ground of material misrepresentation. Japzon averred in Macarthur, in which he stated that his address was at Barangay 6, his Petition that Ty was a former natural-born Filipino, having been born on Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July 9 October 1943 in what was then Pambujan Sur, Hernani Eastern Samar 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty dated 4 January 2007 again stating therein his address as Barangay 6, eventually migrated to the United States of America (USA) and became a citizen thereof. Ty had been residing in the USA for the last 25 years. When Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship. Ty filed his Certificate of Candidacy on 28 March 2007, he falsely Given the aforementioned facts, Ty argued that he had reacquired his represented therein that he was a resident of Barangay 6, Poblacion, Philippine citizenship and renounced his American citizenship, and he had General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or immigrant of any foreign country. While Ty been a resident of the Municipality of General Macarthur, Eastern Samar, for
1 2

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more than one year prior to the 14 May 2007 elections. Therefore, Ty sought "The term residence is to be understood not in its common acceptation as the dismissal of Japzons Petition in SPA No. 07-568. referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his Pending the submission by the parties of their respective Position Papers in permanent home, where he, no matter where he may be found at any given SPA No. 07-568, the 14 May 2007 elections were already held. Ty acquired time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the highest number of votes and was declared Mayor of the Municipality of the childs parents reside and continues until the same is abandoned by General Macarthur, Eastern Samar, by the Municipal Board of Canvassers acquisition of new domicile (domicile of choice). on 15 May 2007.7 Following the submission of the Position Papers of both parties, the COMELEC First Division rendered its Resolution8dated 31 July 2007 in favor of Ty. The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit: Philippine citizenship is an indispensable requirement for holding an elective public office, 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. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as commissioned or non-commissioned officer in the armed forces in the country of which he was naturalized citizen.9 The COMELEC First Division also held that Ty did not commit material misrepresentation in stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that: Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.] As held in Coquilla vs. Comelec: In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides: Requirements of naturalization: Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) year immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added) In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a greencard, which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

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Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on October 26, 2005; and secured a community tax certificate from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14, 2007.10 (Emphasis ours.) The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads: WHEREFORE, premises considered, the petition is DENIED for lack of merit.11 Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzons Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on the basis of the following ratiocination: We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate for any local post. xxxx It must be noted that absent any showing of irregularity that overturns the prevailing status of a citizen, the presumption of regularity remains. Citizenship is an important aspect of every individuals constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre-determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship. Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to establish the fact. Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues. The arguments made therein have already been

dissected and expounded upon extensively by the first Division of the Commission, and there appears to be no reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy would be when there was material misrepresentation meant to mislead the electorate as to the qualifications of the candidate. There was none in this case, thus there is not enough reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty.13 Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant Petition for Certiorari, relying on the following grounds: A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND RESIDENCE.14 B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15 Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under Republic Act No. 9225. Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for those running for public office cannot be waived or liberally applied in favor of dual citizens. Consequently, Japzon believes he was the only remaining candidate for the

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Office of Mayor of the Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local elections. Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a new resolution denying due course to or canceling Tys Certificate of Candidacy; and to declare Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar. As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC already found sufficient evidence to prove that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot evaluate again the very same pieces of evidence without violating the well-entrenched rule that findings of fact of the COMELEC are binding on the Court. Ty disputes Japzons assertion that the COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers that the said Resolutions were based on the evidence presented by the parties and consistent with prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from running in the local elections, Japzon as the second placer in the same elections cannot take his place. The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition considering that Japzon, gathering only the second highest number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said position. And since it took a position adverse to that of the COMELEC, the OSG prays from this Court to allow the COMELEC to file its own Comment on Japzons Petition. The Court, however, no longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda by Japzon, Ty, and the OSG, it already submitted the case for decision. The Court finds no merit in the Petition at bar. There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines.

However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again. It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the naturalborn Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen. Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office. Section 5(2) of Republic Act No. 9225 reads: SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy,

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make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath. That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping solely his Philippine citizenship. The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications required by the Constitution and existing laws. Article X, Section 3 of the Constitution left it to Congress to enact a local government code which shall provide, among other things, for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local Government Code of 1991, Section 39 of which lays down the following qualifications for local elective officials:

(c) Candidates for the position of mayor or vice mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. The challenge against Tys qualification to run as a candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-year residency requirement in the said municipality. The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."18 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a naturalized American citizen, then he must have necessarily abandoned the Municipality of General Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his domicile of choice.

As has already been previously discussed by this Court herein, Tys reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General SEC. 39. Qualifications. (a) An elective local official must be a citizen of Macarthur, Eastern Samar, Philippines, said place becoming his new the Philippines; a registered voter in the barangay, municipality, city or domicile of choice. The length of his residence therein shall be determined province or, in the case of a member of the sangguniang panlalawigan, from the time he made it his domicile of choice, and it shall not retroact to sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately the time of his birth. preceding the day of the election; and able to read and write Filipino or any How then could it be established that Ty indeed established a new domicile other local language or dialect. in the Municipality of General Macarthur, Eastern Samar, Philippines? xxxx In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different principles and concepts in jurisprudence relating

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to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below: Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881). In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to return," stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi. In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a persons legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election

by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place. In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, 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. In that case, petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order 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. There must 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. Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement. As espoused by Ty, the issue of whether he complied with the one-year residency requirement for running for public office is a question of fact. Its determination requires the Court to review, examine and evaluate or weigh the probative value of the evidence presented by the parties before the COMELEC. The COMELEC, taking into consideration the very same pieces of evidence presently before this Court, found that Ty was a resident of the Municipality

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of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative agencies, such as the COMELEC, which have acquired expertise in their field are binding and conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process, considering that the COMELEC is presumed to be most competent in matters falling within its domain.21

applied for and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the 14 May 2007 local elections. Japzon maintains that Tys trips abroad during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside The Court even went further to say that the rule that factual findings of in the Municipality of General Macarthur, Eastern Samar, Philippines. The administrative bodies will not be disturbed by courts of justice, except when COMELEC First Division and en banc, as well as this Court, however, view there is absolutely no evidence or no substantial evidence in support of such these trips differently. The fact that Ty did come back to the Municipality of findings, should be applied with greater force when it concerns the General Macarthur, Eastern Samar, Philippines, after said trips, is a further COMELEC, as the framers of the Constitution intended to place the manifestation of his animus manendi and animus revertendi. COMELECcreated and explicitly made independent by the Constitution itselfon a level higher than statutory administrative organs. The factual There is no basis for this Court to require Ty to stay in and never leave at all finding of the COMELEC en banc is therefore binding on the Court.22 the Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections so that he could be The findings of facts of quasi-judicial agencies which have acquired considered a resident thereof. To the contrary, the Court has previously expertise in the specific matters entrusted to their jurisdiction are accorded ruled that absence from residence to pursue studies or practice a profession by this Court not only respect but even finality if they are supported by or registration as a voter other than in the place where one is elected, does substantial evidence. Only substantial, not preponderance, of evidence is not constitute loss of residence.24 The Court also notes, that even with his necessary. Section 5, Rule 133 of the Rules of Court provides that in cases trips to other countries, Ty was actually present in the Municipality of filed before administrative or quasi-judicial bodies, a fact may be deemed General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 established if it is supported by substantial evidence, or that amount of months preceding the 14 May 2007 local elections. Even if length of actual relevant evidence which a reasonable mind might accept as adequate to stay in a place is not necessarily determinative of the fact of residence justify a conclusion.23 therein, it does strongly support and is only consistent with Tys avowed intent in the instant case to establish residence/domicile in the Municipality The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the of General Macarthur, Eastern Samar. COMELEC First Division and en banc, respectively, were both supported by substantial evidence and are, thus, binding and conclusive upon this Court. Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement, so Ty could run as a Tys intent to establish a new domicile of choice in the Municipality of mayoralty candidate in the 14 May 2007 elections. In Aquino v. General Macarthur, Eastern Samar, Philippines, became apparent when, COMELEC,25 the Court did not find anything wrong in an individual changing immediately after reacquiring his Philippine citizenship on 2 October 2005, residences so he could run for an elective post, for as long as he is able to he applied for a Philippine passport indicating in his application that his prove with reasonable certainty that he has effected a change of residence residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, for election law purposes for the period required by law. As this Court General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the Municipality of already found in the present case, Ty has proven by substantial evidence that he had established residence/domicile in the Municipality of General General Macarthur, Eastern Samar, by paying community tax and securing CTCs from the said municipality stating therein his address as A. Mabini St., Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of the Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty Mayor and in which he garnered the most number of votes.

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Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the victors right to the office, the will of the electorate should be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To successfully challenge Tys disqualification, Japzon must clearly demonstrate that Tys ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines. WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED. SO ORDERED. Footnotes 1 Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on Audit. 2 Certiorari, Prohibition and Mandamus. 3 Penned by Commissioner Romeo A. Brawner with Presiding Commissioner Resurreccion Z. Borra, concurring; rollo, pp. 29-36. 4 Penned by Commissioner Nicodemo T. Ferrer with Chairman Benjamin S. Abalos, Sr. and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, and Rene V. Sarmiento, concurring; id. at 37-40. 5 Records, pp. 1-3. 6 Id. at 28-34. 7 Id. at 51. 8 Rollo, pp. 29-36. 9 Id. at 33. 10 Id. at 34-35. 11 Id. at 35. 12 Id. at 37-40. 13 Id. at 38-39. 14 Id. at 10. 15 Id. at 18. 16 According to Section 2 of Republic Act No. 9225, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are

deemed to have reacquired their Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines. 17 Depending on when the concerned natural-born Filipino acquired foreign citizenship: if before the effectivity of Republic Act No. 9225 on 17 September 2003, he may reacquire his Philippine citizenship; and if after the effectivity of the said statute, he may retain his Philippine citizenship. 18 Coquilla v. Commission on Elections, 434 Phil. 861, 871-872 (2002). 19 Id. 20 430 Phil. 754, 768-770 (2002). 21 Matalam v. Commission on Elections, 338 Phil. 447, 470 (1997). 22 Dagloc v. Commision on Elections, 463 Phil. 263, 288 (2003); Mastura v. Commission on Elections, 349 Phil. 423, 429 (1998). 23 Hagonoy Rural Bank v. National Labor Relations Commission, 349 Phil. 220, 232 (1998). 24 Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92, 30 July 1991, 199 SCRA 692, 715-716. 25 G.R. No. 120265, 18 September 1995, 248 SCRA 400. 26 Papandayan, Jr. v. Commission on Elections, supra note 20 at 773-774.

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& SUPREME COURT Manila EN BANC G.R. No. 88831 November 8, 1990 MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. G.R. No. 84508 November 13, 1990 ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents. Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CAG.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987. After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that: The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508). In his dissenting opinion, Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)

GRIO-AQUINO, J.: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988.

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In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.) These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides:

the residence requirement provided for in the election laws. (Sec. 25, 1971, EC). In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case. In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire Despite his vigorous disclaimer, Miguel's immigration to the United States in the status of an immigrant of another country during his 1984 constituted an abandonment of his domicile and residence in the tenure shall be dealt with by law. Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have In the same vein, but not quite, Section 68 of the Omnibus Election Code of there permanently as evidenced by his application for an immigrant's (not a the Philippines (B.P. Blg. 881) provides: visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there SEC. 68. Disqualifications ... Any person who is a permanent permanently. resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, Immigration is the removing into one place from another; the unless said person has waived his status as permanent act of immigrating the entering into a country with the resident or immigrant of a foreign country in accordance with intention of residing in it.

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An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.) As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx

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 such 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.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public

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office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave.

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& SUPREME COURT Manila EN BANC G.R. No. 112889 April 18, 1995 BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents. VITUG, J.: The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx (e) Fugitive from justice in criminal or non-political cases here or abroad(.)

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June 1992, held: Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petition below for disqualification has ceased to be a preproclamation controversy. In Casimiro vs.Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding. ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice. 1

Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo Private respondent was proclaimed Governor-elect of Quezon on 29 May warranto against the winning candidate, herein private respondent Eduardo 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 Rodriguez, for being allegedly a fugitive from justice. resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the It is averred that at the time private respondent filed his certificate of resolution. candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Hence, this petition for certiorari, the core issue of which, such as to be Municipal Court of Los Angeles Judicial District, County of Los Angeles, expected, focuses on whether private respondent who, at the time of the State of California, U.S.A. A warrant issued by said court for his arrest, it is filing of his certificate of candidacy (and to date), is said to be facing claimed, has yet to be served on private respondent on account of his a criminal charge before a foreign court and evading a warrant for his arrest alleged "flight" from that country. comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a

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candidate for, and thereby ineligible from holding on to, an elective local office. Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 533 2 of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy. Here are some excerpts from the committee's deliberations: CHAIRMAN MERCADO. Session is resumed. So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39. CHAIRMAN DE PEDRO. Kay Benny Marquez. REP. CUENCO: What does he want? CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang constitutionality nito before the Supreme Court later on. REP. CUENCO. Anong nakalagay diyan? CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.

Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad. Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending, unserved. . . HONORABLE SAGUISAG. I think that is even a good point, ano what is a fugitive? It is not defined. We have loose understanding. . . CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive. Si Benny umalis na, with the understanding na okay na sa atin ito. THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . . MS. DOCTOR. Mr. Chairman. . . THE CHAIRMAN. Yes. MS. DOCTOR. Let's move to. . . THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important. Manny, can you come up? MR. REYES. Let's use the word conviction by final judgment. THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,. Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991). xxx xxx xxx THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang gumawa nito, ha?

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MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word "fugitive". THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha? MR. SANCHEZ. Means a person... THE CHAIRMAN. Ha? HON. REYES. A person who has been convicted.

Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: (a) . . . (e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. 5 (Emphasis supplied)

Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 shall mean or means one who has been convicted by final judgment. SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to It means one who has been convicted by final judgment. apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. believes and thus holds, albeit with some personal reservations of theponente (expressed during the Court's en banc deliberations), that Article THE CHAIRMAN. Ano? Sige, tingnan natin. 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin only to a person (the fugitive) "who has been convicted by final judgment." is siya? an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and The Oversight Committee evidently entertained serious apprehensions on Regulations promulgated by the Oversight Committee. The Court itself, not the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 being a trier of facts, is thus constrained to remand the case to the if the disqualification therein meant were to be so taken as to embrace those COMELEC for a determination of this unresolved factual matter. who merely were facing criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference WHEREFORE, the questioned resolutions of the Commission on Elections committee of the Senate and the House of Representatives, made this are REVERSED and SET ASIDE, and the case is hereby REMANDED to reservation: the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement . . . de ipa-refine lang natin 'yung language especially 'yung, the scope of on costs. fugitive. Medyo bothered ako doon, a. 4 SO ORDERED. The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur. THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is still being reviewed, that is not yet conviction by final judgment. 3

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I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the presumption of innocence clause of the Bill of Rights. There are certain fundamental considerations which do not support the applications of the presumption Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public office. Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides: Sec. 1. Public office is public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt.

Separate Opinions

DAVIDE JR., J., concurring: Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective provincial, city, municipal, and barangay officials shall be those provided for in the Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991. Section 39 of the latter provides for the qualifications and election of local elective officials. Section 40 enumerates those who are disqualified from running for any elective local position, among whom is a: (e) Fugitive from justice in criminal or non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree. But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a re-examination of the meaning of the term.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the constitutional right to presumption of innocence. Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.
Footnotes 1 Rollo, p. 31. 2 Sec. 533. Formulation of Implementing Rules and Regulations. (a) Within one (1) month after the approval of this Code, the President shall convene the Oversight Committee as herein provided for. The said Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. (b) The Committee shall be composed of the following: 1. The Executive Secretary, who shall be the Chairman; 2. Three (3) members of the Senate to be appointed by the President of the Senate, to include the Chairman of the Committee on Local Government; 3. Three (3) members of the House of Representatives to be appointed by the Speaker, to include the Chairman of the Committee on Local Government; 4. The Cabinet, represented by the following: (i) Secretary of the interior and Local Government; (ii) Secretary of Finance; (iii) Secretary of Budget and Management; and 5. One (1) representative from each of the following: i. The League of Provinces; ii. The League of Cities; iii. The League of Municipalities; and iv. The Liga ng mga Barangay. (c) The Committee shall submit its report and recommendation to the President within two (2) months after its organization. If the President fails to act within thirty (30) days from receipt thereof, the recommendation of the Oversight Committee shall be deemed approved. Thereafter, the committee shall

!"#$"%&'&$()*+"*&'&,)-.&//01/& supervise the transfer of such powers and functions mandated under this Code to the local government units, together with the corresponding personnel, properties, assets and liabilities of the offices or agencies concerned, with the least possible disruptions to existing programs and projects. The Committee shall likewise recommend the corresponding appropriations necessary to effect the said transfer. For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of Congress, the government offices, and the leagues constituting the Committee. (d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the Executive Secretary. (e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund, is hereby allotted to the Committee to fund the undertaking of an information campaign on this Code. The Committee shall formulate the guidelines governing the conduct of said campaign, and shall determine the national agencies or offices to be involved for this purpose. 3 Rollo, pp. 221-223. 4 Rollo, p. 220. 5 Art. 73, Rule XIV, Rules and Regulations Implementing the Local Government Code of 1991

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& SUPREME COURT Manila EN BANC

Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that: . . . , "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (. . .), and it may be so conceded as expressing the general and ordinary connotation of the term. 1 Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition for certiorari(112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the Court.

G.R. No. 120099 July 24, 1996 EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

FRANCISCO, J.:p Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed dulyelected governor. Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez. The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof.

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On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases 2. the parties, facts and issue involved are identical in both cases 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a"fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind theMARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and 2. an authenticated copy of the felony complaint which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis: The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The

Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent. 2 And proceeding therefrom, the COMELEC, in the dispositive portion, declared: WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside. At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor. On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.

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The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari(G.R. No. 120099) on May 16, 1995. On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089). Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099). Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively). As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995. Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion to Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied. In a Resolution dated October 24, 1995, the Court . . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to

RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof. The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of theMARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full: . . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that: This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's

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Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a "fugitive from justice" as: (A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. . . . Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as: . . . a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis) In Hughes v. Pflanz, the term was defined as: a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state. Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an: expression which refers to one having committed, or being accused, of a crime in

one jurisdiction and is absent for any reason from that jurisdiction. Specifically, one who flees to avoid punishment . . . (emphasis ours) From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on hisflight from justice." Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court held: . . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for

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the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (emphasis supplied) Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice. THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE". From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law. The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decisionand in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by

the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice": . . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit: It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for

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petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive. The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns first against the Marcos government,

then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him. Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his

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circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office. However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to redefine "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a"fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of"fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in

resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit: "Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). Questions necessarily involved in the decision on a former appeal will be regarded as the law of the caseon a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87).

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To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. (Emphasis ours.) Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice"under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to explain why they should not be cited in contempt) are SET ASIDE.

SO ORDERED. Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganiban, JJ., concur. Bellosillo, J., is on leave. Separate Opinions TORRES, JR., J.: concurring Although I entertain no illusion of absolute certainty, as to whether or not the petitioner in the above-entitled case is a "fugitive from justice" within the purview of Section 40 paragraph (e) of Republic Act No. 7160 of the Local Government Code of 1991, and which would result to a disqualification for any elective local position, I, however, share the view of my distinguished colleague, Mr. Justice Ricardo J. Francisco, that petitioner Eduardo T. Rodriguez, is not a "fugitive from justice." Petitioner should not be considered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Petitioner returned to the Philippines from the United States on June 25, 1985 while the criminal complaint against him for fraudulent insurance claims, grand theft and attempted grand theft of personal property before the Municipal Court of Los Angeles, California was filed almost 5 months later, or on November 12, 1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United States, there was yet no case or prosecution to avoid. It would not be reasonable to assume that he returned to the Philippines aware that he has committed some transgressions of law or that he was anticipating the filing of the complaint. To assume that he was not unaware of his own prior misdeeds is tantamount to presuming his guilt. That petitioner did not know of the imminent filing of charges against him and that he did not flee to avoid prosecution are bolstered by the facts that: 1.) he returned to the United States twice: on August 14 and October 7 of the same year but arrived in the Philippines on October 26 likewise in the same year; 2.) he left his wife in the

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United States; and 3.) his wife was later on arrested for the same charges. Had petitioner been aware of the imminent filing of charges against him, he would never have returned to the United States and he would not have left his wife in there. Petitioner is a citizen of this country. Why should he not come home? Coming home to the Philippines was the most natural act of the petitioner, who happens to maintain his residence in the country. The fact that he remains here even after he was formally accused cannot be construed as an indication of an intent to flee, there being no compelling reason for him to go to the United States and face his accusers. On the contrary, it is his official duty, as an incumbent Governor of Quezon, to remain in the country and perform his duties as the duly elected public official. In her report entitled "Evidence of the Parties and Commission's Evaluation," Commissioner Teresita Dy-Liacco Flores aptly pointed out: . . . When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reasons existed to curtail or fetter petitioner's exercise of his right to leave the United States and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be

placed under arrest and to answer for charges filed against him. Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? 1 This Court cannot be oblivious of the fact that the provision disqualifying fugitives from justice in criminal or non-political cases here or abroad was allegedly tailored to affect petitioner. The provision is short of saying that Eduardo Rodriguez is disqualified. As I trace the legislative history of the subject provision, I find that the principal sponsor of the Local Government Code, Aquilino O. Pimentel, Jr., then a Senator and Chaiman of the Senate Committee on Local Government commented on this, in his book "The Local Government Code of 1991," thus: 5. Fugitives Disqualified. Persons fleeing from local or foreign justice in criminal or non-political cases are likewise disqualified from local government elective positions. This particular disqualification was a House of Representatives innovation. This was a "camaraderie" provision proposed by the House because a congressman of a southern Tagalog province had intended to run for governor against an incumbent who had reportedly fled from U.S. justice. 2 (Emphasis supplied) To borrow the language of former Chief Justice Moran in his dissent in Torres vs. Tan Chim, 69 Phil. 518, 535: . . . when this Court continues to uphold a ruling known to be erroneous, with no plausible excuse therefor but public acquiescence therein, it may soon find itself compelled to make more mistakes in an effort to justify the previous ones. We may thus be building one error upon another until, by their accumulation, we shall come to a point when going further would be perilous and turning backward impossible.

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The rule in favor of private respondent is to license a wrongdoing to succeed and injustice to prevail. In applying a law, the facts and circumstances obtaining in the particular case must be taken into consideration. In the case at bar, the following circumstances must be taken into consideration: that petitioner was not aware of the imminent filing of charges against him; the same was filed after he has returned home; it is impractical and unjust to require petitioner to subject himself to the jurisdiction of the United States while already in this country or else be disqualified from office; and that the subject provision appears to have been a 'camaraderie provision' proposed by the House for the sake of private respondent who was then a Congressman. In Marquez vs. COMELEC (243 SCRA 538), this court held that: Art. 73 of the Rules and Regulations Implementing the Local Government Code of 1991 is an inordinate and undue circumscription of the law, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." Said ruling notwithstanding, the court must not insist that petitioner is still a fugitive by the mere fact that there are pending charges against the petitioner in the United States and that petitioner Rodriguez is in the Philippines. It was Justice Oliver Wendel Holmes who said that A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. 3 "Fugitive from justice" must be given a meaning in the instant case having regard to "the circumstances and the time it is used." Philosophers and jurists have tried unsuccessfully at an exact definition of such an abstruse term as justice. Unfortunately, whether in the metaphysical sense or otherwise, the question of justice is still unanswered as it ever was albeit characterized by secular skepticism. If the question is asked: What standard of justice should we enforce? The American sense of justice or the Philippine sense of justice? Undoubtedly, the forum in which it is raised should be controlling. By way only of hypothesis, if an American flees to escape from Philippine Laws to the United States, may we enforce in the United States our standard of justice based on Philippine Laws? I am tempted to ask these questions considering our

zealousness to solve legal problems in the light of laws obtaining in the United States. At any rate, an accused charged with a crime in the Philippines cannot be a candidate and at the same time flee from prosecution. Once he goes campaigning his opponent would have him arrested. For this and the reasons above discussed, the provision on disqualification of fugitive from justice, being unnecessary and serving only to undermine one's constitutional right to equal access to opportunities for public service, 4 should even be scantily considered. Finally, petitioner appears to have garnered 285,202 votes. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. As it is, to disqualify petitioner on the shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate in whom sovereignty resides. 5 Learned Hand, had this to say: Hand preached that the security of liberty was too important to be left entirely to the judges: "(I)t is the voters, speaking through their delegates, who have the final word and the final responsibility; and . . . in the end it is they and they alone who can and will preserve our liberties, if preserved they are to be." 6 This is a populist judicial response. Thus, where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility, for to rule otherwise is to defeat the will of the people. 7 Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. 8 I vote to grant the petition.

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VITUG, J.: dissenting Let me not, in writing this dissenting opinion, be so misunderstood as stating that I am opposed to the doctrine ofstare decisis et non quieta movere or to the consequences of the rule on the "law of the case," let alone to create, to borrow the phrase used by the majority, "instability in our jurisprudence." But what I would really dread is when I might, wittingly or unwittingly, misconceive the pronouncements made by the Court, or worse, be completely out of context therefrom. I should also like to point out that the dissent in no way necessarily implies an acceptance on the sapience of the law here in question; I realize that the Court has no prerogative to either sustain or reject a law on that basis alone. I find it helpful to first narrate the antecedents of the case now before us. For some time now, Eduardo Rodriguez and Bienvenido Marquez, Jr., have been at loggerheads on the issue of whether or not Rodriguez is a "fugitive from justice" and thereby disqualified under the law to run for, or to hold on to, an elective local office. The contenders have for the fourth time 1 pleaded for the intervention of this Court. This time, in a special civil action for certiorari, with a prayer for the issuance of a writ of preliminary mandatory/prohibitory injunction, Rodriguez seeks the annulment of the 07th and 11th May 1995 resolutions (infra) of the Commission on Elections ("COMELEC"). There being other matters that have come up during the pendency of this petition, Rodriguez has now also moved for the admission of his supplemental petition and a second supplemental petition to call attention to certain developments, including a 23rd June 1995 resolution of the COMELEC which he now likewise assails. The various settings that led to the promulgation by the COMELEC of its assailed resolutions might be condensed thusly: Rodriguez, the proclaimed Governor of Quezon Province after the May 1992 elections, was named respondent by Marquez, a defeated candidate for the same post, in a quo warranto petition, docketed EPC No. 92-28(hereinafter so referred to as the quo warranto case), instituted before the COMELEC. Rodriguez was

said to be a fugitive from justice and thereby disqualified under Section 40(e) of the Local Government Code from holding on to the elective local office. The COMELEC dismissed the petition for quo warrant on the ground that petitioner had not been convicted by final judgment. Private respondent thereupon filed a petition for certiorariwith this Court (docketed G.R. No. 112889). 2 On 15 March 1995 (while G.R. No. 112889 was still then pending consideration by the Court), Marquez and Rodriguez filed their respective certificates of candidacy, this time for the May 1995 elections, for the governorship of Quezon. Upon learning of the reelection bid of Rodriguez, Marquez lost no time in filing (on 11 April 1995) with the COMELEC a petition to disqualify Rodriguez and for the cancellation of the latter's certificate of candidacy. Docketed SPA No. 95-089 (hereinafter so referred to as the disqualification case), the petition was assigned to the Second Division of the COMELEC. Marquez disclosed to the COMELEC the pendency of G.R. No. 112889 but explained that the two cases were different in that G.R. No. 112889 had sought to oust petitioner from office for the term 1992-1995 while SPA No. 95-089 was aimed at disqualifying petitioner from running for a new term (1995-1998). Rodriguez was summoned by the Second Division of the COMELEC and required to file his answer to the petition. The disqualification case was set for hearing on 25 April 1995. Meanwhile, on 18 April 1995, this Court rendered a decision in G.R. No. 112889 reversing and setting aside the resolution of the COMELEC which dismissed the petition for quo warranto and directed the COMELEC "to proceed and resolved the case with dispatch." On even date, Rodriguez filed with his Court in G.R. No. 112889 an "Urgent Manifestation and Motion" for the dismissal of G.R. No. 112889 asseverating that the filing of SPA No. 95-089 meant forum-shopping on the part of Marquez. Unaware (presumably) of the 18th April 1995 decision of this Court, Rodriguez filed, on 21 April 1995, with the COMELEC (Second Division) in the disqualification case (SPA No. 95-089) a "Motion to Nullify Summons and to Reconsider Notice of Hearing" praying for the dismissal of the case in view of the pendency with this Court of G.R. No. 112889. He filed an "Answer Ex-Abundante Cautela" claiming, among other things, that he was already in the Philippines at the time the complaint was filed against him in Los Angeles, California. In three separate pleadings, Rodriguez insisted on the

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nullification of the summons, the reconsideration of the notice of hearing and the dismissal of SPA No. 95-089. The scheduled 25th April 1995 hearing on the disqualification case was re-set to 26 April 1995. Still claiming to be incognizant of this Court's decision in G.R. No. 112889, Rodriguez filed, on 25 April 1995, an urgent motion for the issuance of a writ of preliminary injunction to restrain the COMELEC from hearing SPA No. 95-089, arguing that, since SPA No. 95-089 was also based on the facts as those that related to G.R. No. 112889, its filing constituted forumshopping and could pre-empt G.R. No. 112889. The hearing on the disqualification case (SPA No. 95-089), rescheduled for 26 April 1995 by the Second Division of the COMELEC, 3 went through. Rodriguez moved to suspend the proceedings so citing, as the ground therefor, his urgent motion for preliminary injunction in G.R. No. 112889. The COMELEC (Second Division), however, denied his motion, as well as his subsequent motion for time to file a motion for reconsideration, because of the proximity of the elections. Failing to have the proceedings held in abeyance, Rodriguez walked out of the hearing. Marquez then submitted and offered in evidence the authenticated copies of the felony complaint and warrant of arrest against Rodriguez issued on 12 November 1985, by the Municipal Court of Los Angeles Judicial District, Country of Los Angeles, State of California, U.S.A., and some other records of said court. On 27 April 1995, it might be mentioned parenthetically, Rodriguez moved for the reconsideration of this Court's decision of 18 April 1995 in G.R. No. 112889. It was now the turn of Rodriguez to file with this Court a petition for certiorari, prohibition, and mandamus. The petition, entitled "Eduardo T. Rodriguez vs. Commission on Elections, et.al.," and docketed G.R. No. 119807, asked the Court to enjoin the COMELEC from proceeding with SPA No. 95-089. The petition was dismissed by the Court, in its 04 May 1995 minute resolution, since it found no grave abuse of discretion on the part of the COMELEC. Meanwhile, in G.R. No. 112889, Rodriguez filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" attaching thereto a certification from the Commission on Immigration purporting to show that he had left the

United States on 25 June 1985 before the felony complaint against him was instituted before the Los Angeles court. The following day, or on 03 May 1995, he also filed with the COMELEC (Second Division), a "Motion to Admit Position Paper Ex Abundante Cautela Showing that Respondent is Not a Fugitive From Justice As Defined in the Supreme Court Decision of April 18, 1995 in G.R. No. 112889," arguing that the decision in G.R. No. 112889 would not apply to him because he arrived in the Philippines five (5) months before the filing of the felony charges against him. The COMELEC (Second Division), in its 06 May 1995 resolution, denied the motion. On 07 May 1995, or one day before the scheduled 1995 elections, the COMELEC promulgated its first assailed consolidated resolution in EPC No. 92-28 and SPA No. 95-089 which read: WHEREFORE, considering that respondent (Eduardo Rodriguez) has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside. 4 (Emphasis supplied) On 10 and 11 May 1995, Marquez filed urgent motions to suspend the proclamation of Rodriguez. The COMELEC favorably acted on the motions as it so issued, on 11 May 1995, a resolution where it ruled to suspend, among other candidates, the proclamation of Rodriguez who was ordered disqualified in SPA No. 95-089. Notwithstanding the 11th May 1995 resolution, however, Rodriguez, who would appear to have garnered 285,202 votes, was proclaimed winner on 12 May 1995 by the Provincial Board of Canvassers of Quezon. On 22 May 1995, Marquez went to the COMELEC and filed in SPA No. 95-089 and EPC No. 92-28 an "Omnibus Motion to Annul the Proclamation of Rodriguez, to Proclaim Marquez and to cite the Provincial Board of Canvassers in Contempt." On 16 May 1995, Rodriguez filed the present petition for certiorari captioned: "For: REVIEW OF EPC No. 92-28 and SPA No. 95-089 of the Commission on Elections and for NULLIFICATION OF COMELEC Resolution dated 11 May 1995 with a prayer for the

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issuance of a WRIT OF PRELIMINARY MANDATORY/PROHIBITORY INJUNCTION." an urgent motion to admit a supplemental petition was filed on 18 May 1995 by petitioner stating that he had been furnished with a copy of a certificate of canvass of votes and of his proclamation by the Provincial Board of Canvassers. On 29 May 1995, Rodriguez thereupon renewed his prayer, through a motion, for the issuance of a temporary restraining order and to declare the COMELEC and Marquez in contempt of court. Back to the omnibus motion of Marquez in SPA No. 95-089 and EPC No. 92-28, the COMELEC, in its 23rd June 1995 resolution, annulled and set aside the proclamation of Rodriguez for being null and void ab initio. It also gave the Vice-Chairman and MemberSecretary of the Provincial Board of Canvassers of Quezon Province ten (10) days within which to explain why they should not be cited in contempt for disobedience or resistance to the lawful order of the COMELEC particularly its "order to suspend proclamation." On the motion seeking the proclamation of Marquez, the COMELEC chose to have the matter considered by it only "once the Supreme Court (would have) resolved the case of Eduardo T. Rodriguez v. COMELEC (in), G.R. No. 120099" (the instant petition). This action by the COMELEC prompted Rodriguez to file his motion to admit a second supplemental petition in order to include the 23rd June 1995 resolution, in addition to the 07th and 11th May resolutions, of the COMELEC, among the disputed issuances. Petitioner submits several reasons for the allowance and grant of his petition. Rodriguez contends that the COMELEC should not have entertained the disqualification case (SPA No. 95-089) for being an act of "forum-shopping" on the part of Marquez. Clearly, there is no merit in this submission. The general statement of the prohibition against forum-shopping is that a party should not be allowed to pursue on the same subject matter simultaneous remedies in two or more different fora 5 that can tend to degrade the administration of justice by thusly trifling with the courts and abusing their processes. 6 Forum-shopping exists where the actions are of the same nature and involve identical transactions, circumstances, and issues between the same parties. 7 While there is identity in many respects between SPA No. 95-089 and EPC No. 92-28, the two cases, however, greatly differ in their main aspects. EPC No. 92-28

(subject case of G.R. No. 112889) is aquo warranto case and involves petitioner's gubernatorial incumbency for the term 19921995 while SPA No. 95-089 is a disqualification case involving his candidacy for the 1995 local elections. Rodriguez argues that should Section 40(e) of the Local Government Code of 1991 be applied to him, it would partake the nature of an ex post facto 8 law or a bill of attainder. 9 These terms have settled meanings in criminal law jurisprudence that clearly have no relevance to the case before us. Besides, the Local Government Code took effect on 01 January 1992, and thus its application to Rodriguez in his gubernatorial incumbency that started in mid-1992 and his candidacy for the 1995 elections cannot be deemed to be retrospective in character. Petitioner claims that the COMELEC did not have jurisdiction to issue the questioned resolution on the eve of the election because the Omnibus Election Code requires that final decisions in disqualification cases should be rendered not later than seven (7) days before the election. Section 72 of the Omnibus Election Code, that petitioner refers to, provides: 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. (Emphasis supplied). The instant case calls for the governance not of the Omnibus Election Code but of the Local Government Code (specifically Section 40[e] thereof). In any case, the "seven days" stated in the law, being evidently intended for administrative feasibility, should be construed as a mere directory, rather than as a mandatory, provision of the Omnibus Election Code. A provision should be deemed to be directory only when to have it enforced strictly may cause more harm than by disregarding it. 10 The next question posed was whether or not the COMELEC gravely abused its discretion when, in the scheduled hearing of 26 April 1995, it refused to grant the motion of Rodriguez for a suspension of hearing. Far from it, the denial by COMELEC would appear to have

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been both prudent and legally warranted. The motion was grounded on the pendency of G.R. No. 112889 (the quo warranto case), whereas, the 26th April 1995 hearing related to the disqualification case (SPA 95-089) for the 1995 election that undoubtedly had to be resolved quickly. The COMELEC hardly had any choice but to proceed with the hearing and, when Rodriguez thereupon walked out, Marquez was naturally allowed to present his evidence ex-parte. Perhaps realizing that the COMELEC had acted correctly, petitioner would question the holding of the 26th April 1995 hearing by only one member (Commissioner Teresita Flores) of the Second Division. 11 Not only was this matter not timely brought up before the COMELEC, but that there would appear to be no problem in the delegation by the COMELEC of the mere reception of evidence to any one of its members. All the assailed resolutions of COMELEC would indicate that the required concurrence of the Commissioners was given. The subsequent consolidation of the quo warranto case with that of the disqualification case (following our 18th April 1995 decision remanding the case to COMELEC), and the promulgation of the 07th May 1995 consolidated resolution, would also seem to be in conformity with Rule 3, Section 9, of the COMELEC Rules of Procedure, which reads: Sec. 9. Consolidation of cases. When an action or proceeding involves a question of law and fact which is similar to or common with that of another action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket number. Moreover, a further hearing on the quo warranto case so involving, as it does, petitioner's now expire incumbency, would be unnecessary and a futile effort. The pivotal issue then is whether or not petitioner falls under the term "fugitive from justice" but, unlike it precursor case in G.R. No. 112889 which has been confined to the question of whether or not a conviction by final judgment of a person at large is essential before he can be considered a "fugitive from justice," 12 this time, however, the Court is asked to pass upon petitioner's assertion that he cannot be considered a "fugitive from justice" since he already has been in the Philippines months prior to the filing of the charges against him before the United States court in November 1985. He cites a

certification from the Commission of Immigration of his arrival in the country on 25 June 1985. The Solicitor-General, on his part, maintains that the evidence presented by Marquez is still wanting. He states that the evidence thus far submitted would only show (1) that ten (10) charges of presenting fraudulent insurance claims, grand theft of personal property, and attempted grand theft of personal property were filed against petitioner before the Municipal Court of the Country of Los Angeles, State of California, U.S.A., in November, 1985; (2) that on November 12, 1985, a warrant of arrest was issued against petitioner; and (3) that petitioner's wife, Imelda Gener Rodriguez, was arrested for the same charges on November 6, 1985. 13 which, collectively, would appear to be "too insubstantial" and inadequate to establish that Rodriguez has, in fact, fled to avoid prosecution. He opines that . . . The COMELEC can not simply ignore the fact that the then Bureau of Immigration had issued a certification that on June 25, 1985, petitioner returned to the Philippines from the United States. This certification is already on record, having been submitted by petitioner ex abundante cautela following COMELEC's refusal to consider the same because of petitioner's walkout from the hearing on April 26, 1995. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. This manifestation of the People's will can not just be ignored without conducting a thorough hearing to determine whether the person they had overwhelmingly voted for is really disqualified from presenting himself to them for election. 14 I thus perceive the Solicitor General as now also saying that an intention to evade punishment or prosecution is an element of term "fugitive from justice."

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Verily, there is a dearth of authorities on the proper and legal connotation of the phrase "fugitive from justice." Neither the law (Republic Act. 7160, also known as the Local Government Code) 15 here in question nor the deliberations in Congress give much clue to the legislative intent. The phrase has been used in various contexts although it is in extradition cases where it appears to have acquired a prevalent usage. One leading situation was that of Roberts vs. Reilly, 16 decided by the United States Supreme Court, which involved the application of Article 4, Section 2, of the United States Constitution 17 and Section 5278 18 of the Revised Statutes of the United States implementing the Constitutional provision. William Roberts was indicted for grand larceny in the first degree in the State of New York. He was subsequently held in the State of Georgia by Philip Reilly, who claimed to be an agent of the State of New York and acting by virtue of an executive warrant issued by the Governor of Georgia on a requisition from the Governor of New York, reciting that Roberts had been indicted in the State of New York and was a fugitive from justice of the latter State. In considering the specific question on whether or not the person demanded was a fugitive from justice, the tribunal held: To be (regarded) a fugitive from justice, . . . , it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another. The ruling was repeated in Appleyard v. Massachusetts, 19 itself to be later reiterated in a number of other cases, 20 where Arthur Appleyard was indicted for the crime of grand larceny, first degree, alleged to have been committed in the country of Erie, New York. Although a warranto for his arrest was issued, Appleyard was not apprehended because he had moved out from that State. He was eventually arrested by virtue of a warrant issued by the Governor of Massachusetts. Appleyard then applied for a write of habeas corpus to the supreme judicial council of Massachusetts which, after hearing, denied the application. He, again, applied to the Circuit Court of the United States for a writ of habeas corpus which effort likewise proved futile. Appleyard interposed an appeal to the U.S. Supreme Court. He restated his previous contention before the

lower courts that he could not be deemed to be a fugitive from justice because he was unaware when leaving New York that he had at any time violated its criminal laws. That Court held: . . . This contention cannot be sustained; indeed, it could not be sustained without materially impairing the efficacy of the constitutional and statutory provisions relating to fugitives from justice. An alleged fugitive may believe that he has not committed any crime against the laws of the state in which he is indicted, and yet, according to the laws of such state, as administered by its judicial tribunals, he may have done so, and his belief or want of belief may be without foundation in law. It is the province of the courts of New York to declare what its laws are, and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws. The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered upon on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws. Kentucky v.Dennison, 24 How: 66, 69, 16 L. ed. 717; Ex parte Reggel, 114 U.S. 642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148. So that the simple inquiry must be whether the person whose surrender is demanded is in fact a fugitive from justice, not whether he consciously fled from justice in order to avoid prosecution for the crime with which he is charged by the demanding state. A person charged by indictment or by affidavit before a magistrate with the commission within a state of a crime covered by its laws, and who, after the date of the commission of such crime, leaves the state, no matter for what purpose or with what motive, nor under what belief, becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, . . . Most U.S. State courts would appear to be similarly minded. 21 The rulings heretofore cited cannot be here controlling, of course, and divergent views can still be expressed on the precise import of the phrase "fugitive from justice." It is evident enough though, in my view, that Congress, not having provided otherwise, must have

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intended the ordinary connotation of the term to prevail. So taken, it might be understood as referring to one who, having committed or being accused of having committed a crime in one jurisdiction, cannot be found therein 22 or is absent for any reason from that jurisdiction 23 that therebyforestalls criminal justice from taking its due course. The issue is largely a factual matter and in that determination, the motive or reason for his plight need not be inquired to. Animus fugere may be significant but it is not essential and what matters in not why he leaves but the fact that he leaves, for it should not be unreasonable to assume that he was not unaware of his own prior deeds or misdeeds. As so conceptualized, the import of the term is more congruent than variant with what has heretofore been essayed to be, in fact, its common usage. Indeed, unlike the U.S. courts which are yet detained by the conditions expressed in both their fundamental and statutory laws, the pertinent provision of our own Local Government Code contains no further circumscription other than by its bare and simple mandate that a "fugitive from justice in criminal or non-political cases here or abroad" shall be "disqualified from running for any elective local position." 24 The law has provided no further provisos and no saving clauses. When there is no obscurity or ambiguity in an enabling law, it must, we have said in the related case of Marquez vs. Comelec, 25 be merely made to apply as it is so written. This Court is not at liberty either to question the wisdom of the law, let alone to detract from it, or to itself legislate material parameters when there are none that statutorily exist. I now come to the final question of whether or not substantial evidence has been adduced to support the factual findings of the COMELEC and, corollarily, whether or not petitioner has been duly accorded full opportunity to present before the COMELEC his own evidence to disprove the assertions of private respondent. It may be recalled that, following the denial of the motion of Rodriguez to postpone the scheduled 26th April 1995 hearing, the COMELEC continued, because of the proximity of the May 1995 elections, with its reception of the evidence (despite the walk-out thereupon staged by Rodriguez and his counsel). Duly received in evidence included an authenticated copy of the warrant of arrest, dated 12 November 1985, on respondent (Exh. A-2) issued by the Municipal Court of the Country of Los Angeles, State of California, U.S.A., in connection with a criminal complaint filed against him in Criminal Case No. A774567, entitled "People of the State vs. Imelda

O. Rodriguez and Eduardo T. Rodriguez for the crimes of presenting Fraudulent Insurance Claims, Grand Theft of Personal Property and Attempted Grand Theft of Personal Property," and an authenticated copy of the felony complaint (Exh. A-10 to A-15 inclusive), showing that the respondent was charged criminally on ten (10) counts. Concluding on the documentary evidence adduced before it, the COMELEC said: The authenticated documents submitted by petitioner to show the pendency of a criminal complaint against the respondent in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. 26 The petitioner and his counsel walked out from the proceedings. Certainly, the thesis that petitioner was denied due process would be totally unacceptable; he himself brushed it aside. But while there might be no sympathy for his action that ordinarily should have prevented him from any further opportunity, the Court, nevertheless, aptly recognized that the controversy was solely not between the private parties herein, but one imbued with public interest, involving no less than the highest office in the province of Quezon and so, inevitably, a concern also of its people. Accordingly, the Court, besides having set the case for the reception of oral argument on 13 July 1995, likewise passed, on 24 October 1995, the following resolution; thus Deliberating on the special civil action for certiorari with prayer for preliminary injunction and restraining order, along with the comment thereon filed by the Solicitor General, as well as the other subsequent pleadings submitted by the parties in support of their respective submissions, and considering, further, the oral argument of the parties during the 13th July 1995 hearing of this case, the Court RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within

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the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof. 27 While it may generally be said that the possible outcome or truth of an indictment need not necessarily be an issue in ascertaining whether or not one is a fugitive from justice, when, however, the accusation is lodged with and an arrest is ordered by a foreign court or agency we might also assure ourselves as a matter of principle that, in the process of sanctioning in effect an act of a foreign government, we do not thereby abandon our own basic sense of equity and fair play. There cannot thus be any serious doubt that, when assailed or in doubt, the courts are free to look into, and receive evidence on, the legitimacy and regularity of the proceedings in that foreign jurisdiction. In the report submitted by the Commission on Elections, 28 entitled "Evidence of the Parties and Commission's Evaluation," received by the Court on 26 December 1995, the matters adduced by petitioner focused on what had already been asseverated in his petition, i.e., that he was already in the Philippines prior to the filing of the charges against him before the United States court in November of 1985 and that his return to the country was not intended to avoid prosecution. Neither party brought up any question on the legitimacy and regularity of the proceedings before the foreign court that led to the issuance of the warrants of arrest. I quote the pertinent portions of the report: EVIDENCE Petitioner Rodriguez presented the following witnesses: 1. Atty. Cipriano Farrales, Legal Officer of the Bureau of Immigration and Deportation 2. Menardo Manglo

3. Former Supreme Court Justice Abraham Sarmiento 4. Ex-Senator Aquilino Pimentel, Jr. 5. Ex-Senator Agapito Aquino 6. Atty. Geronimo Reyes, Jr. 7. Atty. Roberto Avio 8. Mr. Heberto Buenafe 9. Former Senate President Jovito Salonga 10. Former Secretary of the Department of Labor and Employment Augusto Sanchez 11. Mr. Euclides Abcede, and 12. Eduardo Rodriguez The testimonies of Former Supreme Court Justice Abraham Sarmiento, former Senator Aquilino Pimentel, Jr., former Senator Agapito Aquino, Former Labor Secretary Augusto Sanchez and former Senator Jovito Salonga collectively emphasized that petitioner Eduardo Rodriguez was one of the active participants in the political movement against the late President Ferdinand E. Marcos. They went to Hongkong on August 9, 1985 as a group, together with petitioner Eduardo Rodriguez, in order to meet a political exile, Raul Daza, who had then a pending warrant of arrest issued by a Regional Trial Court of Quezon City. The purpose of the trip was to provide Mr. Raul Daza, another prominent opposition figure during the Marcos regime, some form of protective company during his return to the country on August 12, 1985. To the political opposition then, it was a big event that enjoyed media bash particularly in the August 12, 1985 issue of the Bulletin Today and in the August 19, 1985 issue of the Mr. and Ms. Magazine. Mr. Geronimo Reyes testified that he knows petitioner Rodriguez as a co-exile from the Marcos regime in Los

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Angeles, USA. Reyes was the organizer and president of Wilshire Walking Corp. composed of Filipino residents in Los Angeles. Petitioner Rodriguez because a member thereof. Rodriguez returned to the Philippines about July 1985 and returned to Los Angeles in August of the same year. That was the last time they saw each other in the US. Either on November 11 or 12, 1985, a certain Johnny Reveche, brother-in-law of petitioner Rodriguez, called him to the former's home at Beard Ave., Northridge, California to discuss the matter of the arrest and detention of Mrs. Imelda Rodriguez, wife of petitioner Rodriguez, who had just been bailed out. His assistance was requested because he had been practicing law in California. While Mr. Reyes, Imelda Rodrigues and Mr. Reveche were discussing the case, Mr. Reveche called Mr. Reyes to the phone where the latter found out that Rodriguez was on the other end calling him from the Philippines. The caller requested Mr. Reyes to render all the necessary assistance to Mrs. Rodriguez because petitioner was unable to be with her as he was then in the Philippines and deep in the political campaign. Atty. Roberto Avio, resident of Macalelon, Quezon and former chairman of the United Nationalists Democratic Organization (UNIDO), Macalelon Chapter, testified that sometime in May 1985, former Mayor Eduardo T. Rodriguez returned from the United States and sent his personal driver to witness' residence to inform the latter that Rodriguez would be meeting him in the first week of June 1985 at Macalelon, Quezon. In the meeting held as scheduled, Rodriguez intimated that he (Rodriguez) was tasked by ExSenator Salonga to reactivate and reorganize the Liberal Party in the Bondoc Peninsula area. However, Atty. Avio declined Rodriguez's invitation to join the reorganization as he was then already committed to the UNIDO as the local chairman. Rodriguez requested another meeting after consulting with other former Liberal Party stalwarts. Said meeting transpired on the last week of July 1985 where Rodriguez, made aware of the improbability of reactivating the Liberal Party due to the affiliation of most of the party's former members with the UNIDO, expressed willingness to join the UNIDO. Rodriguez took his oath of allegiance on October 1985. Thereafter, he actively participated in the political campaigns of the UNIDO candidates in the

presidential snap elections and congressional elections resulting in his appointment as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986 and his election as Provincial Governor of Quezon in 1988. Heberto Buenafe's testimony corroborated these allegations, specifically stating that sometime in July and August of 1985, Buenafe has occasion to meet Rodriguez and that in matters of party dispute regarding the leadership of the UNIDO in Lucena City, the latter was often consulted as he (Rodriguez) was then designated as party representative of the Liberal Party by Senator Salonga immediately after his arrival in the Philippines in May 1985. Likewise, Mr. Euclides Abcede's testimony attested to the fact that in line with his activities as an active opposition campaigner, Abcede met Rodriguez in Macalelon, Quezon sometime in June 1985. Mr. Menardo Manglo is the arrival and departure verifier of the Bureau of Immigration. He certified the authenticity of the Bureau of Immigration Arrival and Departure Reports of June 1985, August 1985, August 1986, September 1986, July 1987, June 1988, July 1989 and August 1990 (Exhibits 5 to 5-G, inclusive) wherein the name Eduardo T. Rodriguez appears. On cross-examination, witness testified that said exhibits were computer print-outs supplied to the Bureau of Immigration by the PAL Computer Center. Atty. Cipriano Farrales, legal officer of the Bureau of Immigration, testified that the certification issued by the Bureau relative to the departure and arrival of Rodriguez in the Philippines issued by Commissioner Lopez was genuine and authentic (Exhibits 1 and 2). Herein petitioner Rodriguez' testimony denied the allegation that he falls within the Supreme Court's definition of a "fugitive from justice" which includes "those who, after being charged, flee to avoid prosecution." Specifically, Rodriguez averred: b) I arrived in the Philippines from the United States of America on June 25, 1985, 6 months prior the filing of the alleged charges against me on November 12, 1985.

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Obviously, I did not flee from the United States of America to avoid prosecution. At the time that I left the United States, there were no charges against me. No warrant of arrest has been issued against my person. Under the facts, it could not be said that I fled from the United States to avoid prosecution. . .. On the query as to whether or not he returned to the United States between June 25, 1985 and November 12, 1985, petitioner Rodriguez responded that he went back twice, viz, on August 14, 1985 and October 7, 1985 (see also passport, Exhibit 14). He testified that he left Los Angeles on October 26, 1985 and, as per certification issued by the Bureau of Immigration (Exhibit 2), arrived in the Philippines on the same date. From that time, Rodriguez never returned to Los Angeles. After the conclusion of the oral testimonies, the following documentary evidence were offered by petitioner Rodriguez and were admitted. 1. Civil Service Commission Form No. 1, Job Description of Cipriano Farrales (Exhibit 1) 2. Certification from the Bureau of Immigration (Exhibit 2) 3. Affidavit of Abraham Sarmiento (Exhibit 3 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports) 4. Affidavit of Aquino Pimentel, Jr. (Exhibit 4 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports) 5. Arrival and Departure Report of the Bureau of Immigration (Exhibit 5 to 5-D, inclusive) 6. Affidavit of Agapito Aquino (Exhibit 6 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports) 7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)

8. Affidavit of Roberto Avio (Exhibit 8) 9. Affidavit of Heberto Buenafe (Exhibit 9) 10. Affidavit of Jovito Salonga (Exhibit 10) 11. Affidavit of Augusto Sanchez (Exhibit 11) 12. Affidavit of Euclides Abcede (Exhibit 12) 13. Affidavit of Eduardo T. Rodriguez (Exhibit 13) 14. Xerox copy of Rodriguez's passport (Exhibit 14 with submarkings, 14-A to 14-D, inclusive) Respondent Marquez submitted the following documentary evidence: 1. Affidavit of Bienvenido Marquez (Exhibit E) 2. Affidavit of Mr. Casiano Pasumbal (Exhibit F) 3. Certificate of Death of Gloria Magayanes Gener, motherin-law of petitioner (Exhibit G) with the alleged signature of Rodriguez as informant (Exhibit G-1) 4. Certificate of Death of Imelda Gener Rodriguez, spouse of petitioner (Exhibit H) with the alleged signature of Rodriguez as informant (Exhibit H-1) As regards other documentary evidence offered, the investigation report consisting of Exhibits I to I-17 and J to J87 which was sought admission by respondent Marquez, was excluded by the presiding Commissioner because of irrelevancy to the purpose for which it was offered. The undersigned so ruled due to respondent's failure to identify the nexus between the documents sought to be admitted and the inference that in view of the same, petitioner would have known of the imminent filing of charges against him. 29

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From the "Discussion" portion of its report, it would appear to me that the COMELEC, like the majority of my colleagues, proceeded under the impression that the Court in G.R. No. 112889 had considered intent to evade the law to be a material element in the definition of "fugitive from justice." The COMELEC understandably thereby felt compelled to conclude that petitioner, there being no clear evidence of any intention on his part to evade the law at the time he left the United States, was not a fugitive from justice. However, as heretofore so pointed out, the sole and basic issue in G.R. No. 112889 was whether or not a conviction by final judgment of the person at large was essential before he could be considered a fugitive from justice. That question clearly arose when the Oversight Committee which was convened by the President, conformably with Section 533 of Republic Act 7160, to formulate the appropriate rules and regulations necessary for the efficient and effective implementation of the provisions of the Local Government Code, came out with its Article 73 that provided: Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position; (a) xxx xxx xxx (e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. (Emphasis supplied).

that petitioner Rodriguez is in the Philippines make petitioner a fugitive from justice." And so I hold, in resume, as follows: That 1. The filing with the COMELEC of the disqualification case in SPA No. 95-089 was not an act of forum shopping on the part of herein private respondent Marquez. 2. Section 40(e) of the Local Government Code of 1991 did not partake of an ex post facto law or a bill of attainder. 3. Section 40(e) of the Local Government Code, not Section 72 of the Omnibus Election Code, should govern. 4. The COMELEC did not abuse its discretion in denying herein petitioner's motion for a suspension of hearing in SPA Case No. 95089 and in allowing herein private respondent to present his evidence ex-parte, considering its close proximity to the 1995 elections. 5. In consolidating EPC No. 92-28 (the quo warranto case) and SPA No. 95-089 (the disqualification case), the COMELEC acted in conformity with its Rules of Procedure. 6. Given the factual settings and the circumstances, I must conclude that petitioner is a "fugitive from justice" within the intent and meaning of Section 40(e) of the Local Government Code of 1991.

The court in G.R. No. 112889 naturally opined that the above provision "to the extent that it confine(d) the term fugitive from justice to refer only to a person (the fugitive) . . . convicted by final judgment WHEREFORE, I vote for the DISMISSAL of the petition. (was) an inordinate and undue circumscription of the law." The Court had to likewise concede to the Solicitor General when he then said Narvasa, C.J., Padilla, Regalado, Davide, Jr. and Mendoza, JJ., that the term "includes not only those who flee after conviction to concur. avoid punishment but likewise those who, after being charged, flee to avoid prosecution" for, certainly, the statement was not incorrect. Footnotes But what indeed, could be perplexing was how it could be possible for the Court's ruling in G.R. No. 112889 to be so misconstrued as to supposedly convey any idea of exclusivity or preclusivity that, to 1 243 SCRA 538, 542. begin with, was not even considered at the time. 2 COMELEC Consolidated Resolution, Rollo, pp. 95-96. There should be nothing erroneous, in my view, when COMELEC did ultimately come up with its own concluding observation that "the 3 Rollo, p. 164. mere fact that there are pending charges in the United States and

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4 Rollo, p. 476. TORRES, Jr., J.: concurring 1 Report of the Commission, p. 12. 2 Commissioner Masambong's Concurring Opinion that petitioner is not a fugitive from justice, p. 9. 3 Towne vs. Eismer, 245 U.S. 418. 4 Art. II, Sec. 26 (State Policies) of the 1987 Constitution provides: "The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." 5 Labo vs. Commission on Elections, G.R. No. 105384, July 3, 1992. 6 Learned Hand, A Plea for the Open Mind and Free Discussion, in True Spirit of Liberty, 274. 7 8 VITUG, J.: dissenting 1 The first case was G.R. No. 105310 entitled, "Bienvenido Marquez, Jr. vs. Eduardo Rodriguez," the second case was G.R. No. 112889 entitled, "Bienvenido Marquez, Jr. v. Eduardo Rodriguez," the third case was G.R. No. 119807 entitled, "Eduardo Rodriguez v. COMELEC, et. al.," and now, the case at bench, G.R. No. 120099. 2 In its decision, dated 18 April 1995, the Court sustained Marquez in contending that conviction was not a requirement of the disqualifying law and thereby remanded the case for further proceedings. 3 Rodriguez alleged that when SPA No. 95-089 was called for hearing by the Second Division of the respondent Commission on 26 April 1995 at two o'clock in the afternoon there was no quorum. Only Commissioner Teresita D.L. Flores was present. He alleged that

since Presiding Commissioner of the Second Division, Remedios Salazar-Fernando and Manolo Gorospe were not present, how was it possible for a single Commissioner to constitute a quorum for the transaction of the business of the Second Division. 4 Rollo, p. 97. 5 People vs. Court of Appeals, 101 SCRA 450. 6 Victronics Computers, Inc. vs. Regional Trial Court, Branch 63, Makati, 217 SCRA 517. 7 R. Transport Corporation vs. Laguesma, 227 SCRA 826. 8 To be ex post facto, the law must: (1) refer to criminal matters; (2) be retroactive in its application; and (3) to the prejudice of the accused. (Isagani A. Cruz, Constitutional Law, 1989 ed., p. 244). 9 A bill of attainder is a legislative fiat that inflicts punishment without trial (People vs. Carlos, 78 Phil. 535), its essence being the substitution of legislative fiat for a judicial determination of guilt (Cruz, supra, pp. 246-247). 10 See Marcelino vs. Cruz, 121 SCRA 51. 11 The two other members were Commissioners Remedios Fernando and Manolo Gorospe. 12 The Court, in response, said in its decision of 18 April 1995 that conviction was not indispensable, albeitsome reservations expressed by the ponente. 13 Rollo, p. 413. 14 Rollo, p. 466. 15 Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx

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(e) Fugitive from justice in criminal or non-political cases here or abroad(.) 16 116 U.S. 80, 29 Led. 544. 17 A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime (Art. 4, Sec. 2). 18 Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, the cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. (See U.S. Comp. St. 1901, P. 3597). 19 203 U.S. 222, 51 Led. 161. 20 Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 52 L ed. 121; Biddinger v. Police Commissioners, 245 U.S. 128, 62 L ed. 193; Hogan v. O'Neill, 255 U.S. 52, 65 L ed. 497. 21 The U.S. Supreme Court in Appleyard went cursorily through a number of such cases (hereunder re-arranged for convenience) thusly: In Kingsbury's Case, 106 Mass. 223, 227, 228, the contention of the fugitive from justice was that, as she went into the demanding state and returned to her home in the other state before the alleged crime was known, she could not be deemed to have fled from justice. But the court said: "The material facts are, that the prisoner is charged with a crime in the manner prescribed, and has gone beyond the

jurisdiction of the state, so that there has been no reasonable opportunity to prosecute him after the facts were known. The fact in this case, that she returned to her permanent home, cannot be material . . . It is sufficient that the crime of larceny has been properly charged, and that the prisoner is a fugitive, and a requisition has been properly made." In State ex rel. Burner v. Richter, 37 Minn, 436, 438, 35 N.W. 9, the contention was that to constitute a fugitive from justice a person must have left the state where the crime was committed for the purpose of escaping the legal consequences of his crime. Referring to Roberts v. Reilly, above cited, as authoritative and binding, and as in accordance with is own views, the supreme court of Minnesota well said: "The sole purpose of this statute, and of the constitutional provision which it was designed to carry into effect, was to secure the return of persons who had committed crime within one state, and had left it before answering the demands of justice. The important thing is not their purpose in leaving, but the fact that they had left, and hence were beyond the reach of the process of the state where the crime was committed. Whether the motive for leaving was to escape prosecution or something else, their return to answer the charges against them is equally within the spirit and purpose of the statute; and the simple fact that they are not within the state to answer its criminal process, when required, renders them, in legal intendment, fugitives from justice, regardless of their purpose in leaving." In re Voorhees, 32 N.J.L. 141, 150, the Court said: "A person who commits a crime within a state, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act, must be regarded as a fugitive from the justice of the state whose laws he has infringed. Any other construction would not only be inconsistent with good sense and with the obvious import of the word to be interpreted in the context in which it stands, but would likewise destroy, for most practical purposes, the efficacy of the entire constitutional provision." In ex parte Swearingen, 13 S.C. 74, 80, the court held that the terms "fugitive from justice" were intended to embrace not only a case where a party, after committing a crime, actually flees, in the literal sense of that term, from the state where such crime was committed, but also a case where a citizen of one state, who, within the territorial limits of another state, commits a crime, and then simply

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returns to his own home. The object of the Constitution was to enable a state whose laws had been violated, to secure the arrest of the person charged with such violation, even though such person might be beyond the reach of the ordinary process of such state. In Re Mohr, 73 Ala. 503, 512, 49 Am. Rep. 63, the court, referring to the words in the Constitution, "who shall flee from justice and be found in another state," said: "There is a difference of opinion as to what must be the exact nature of this flight on the part of the criminal, but the better view, perhaps, is that any person is a fugitive within the purview of the Constitution, "who goes into a state, commits a crime, and then returns home." In Hibler v. State, 43 Tex. 197, 201, the court said: "The words "fugitive from justice" as used in this connection, must not be understood in a literal sense, but in reference to the subject-matter, considering the general object of the Constitution and laws of the United States in relation thereto. A person who commits a crime in one state, for which he is indicted, and departs therefrom, and is found in another state, may well be regarded as a fugitive from justice in the sense in which it is here used. 22 See Black's Law Dictionary. 23 See Webster's Third New International Dictionary. 24 Sec. 40(e), R.A. 7160. 25 G.R. No. 112889, 18 April 1995. 26 Rollo, pp. 95-96. 27 Rollo, pp. 536-537. 28 Signed by Hon. Teresita Dy-Liacco Flores, writing for the Commission, concurred in by Hon. Bernardo P. Pardo, Chairman, Hon. Julio F. Desamito, Commissioner, Hon. Graduacion A. ReyesClaravall, Commissioner, Hon. Manolo B. Gorospe, Commissioner, and separately concurred in by Hon. Regalado E. Maambong, Commissioner, and Hon. Remedios A. Salazar-Fernando, Commissioner.

29 Evidence of the Parties and Commissioner's Evaluation, pp. 4-9.

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& SUPREME COURT Manila EN BANC

(1) year or more of imprisonment within two (2) years after serving sentence; (b) xxx xxx xxx. In disqualifying the petitioner, the COMELEC held that: Documentary evidence . . . established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court . . . , which however, affirmed respondent's conviction in a Decision dated November 14, 1990. Respondent's conviction became final on January 18, 1991. xxx xxx xxx . . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is "dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude . . . . 3 The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. 4 The two (2) issues to be resolved are: 1. Whether or not the crime of fencing involves moral turpitude. 2. Whether or not a grant of probation affects Section 40 (a)'s applicability.

G.R. No. 121592 July 5, 1996 ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents. RESOLUTION

FRANCISCO, J.:p Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC. 1 The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) 2 which provides as follows: Sec. 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

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Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification i.e., "when the conviction by final judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently adopted the definition in Black's Law Dictionary of "moral turpitude" as: . . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. 5

determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as: a. . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 12

Not every criminal act, however, involves moral turpitude. It is for this reason From the foregoing definition may be gleaned the elements of the crime of that "as to what crime involves moral turpitude, is for the Supreme Court to fencing which are: determine". 6 In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while 1. A crime of robbery or theft has been committed; crimes mala prohibita do not 7, the rationale of which was set forth in "Zari v. 8 Flores," to wit: 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, It (moral turpitude) implies something immoral in itself, acquires, conceals, sells or disposes, or buys and sells, or in regardless of the fact that it is punishable by law or not. It any manner deals in any article, item, object or anything of must not be merely mala prohibita, but the act itself must be value, which have been derived from the proceeds of the inherently immoral. The doing of the act itself, and not its said crime; prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of 3. The accused knows or should have known that the said themselves immoral but whose illegality lies in their being article, item, object or anything of value has been derived 9 positively prohibited. from the proceeds of the crime of robbery or theft; and [Emphasis supplied.] This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, 10 the Court admitted 4. There is, on the part of the accused, intent to gain for that it cannot always be ascertained whether moral turpitude does or does himself or for another. 13 not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve Moral turpitude is deducible from the third element. Actual knowledge by the moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves "fence" of the fact that property received is stolen displays the same degree moral turpitude is ultimately a question of fact and frequently depends on all of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. the circumstances surrounding the violation of the statue. 11 And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of The Court in this case shall nonetheless dispense with a review of the facts the robbery or theft invaded one's peaceful dominion for gain thus and circumstances surrounding the commission of the crime, inasmuch as deliberately reneging in the process "private duties" they owe petitioner after all does not assail his conviction. Petitioner has in effect their "fellowmen" or "society" in a manner "contrary to . . . accepted and admitted all the elements of the crime of fencing. At any rate, the

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customary rule of right and duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti", to wit: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. 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. Art. 22. Everyone person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known" the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists. 14 [Emphasis supplied.]

Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefor should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . . , object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." 15 All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. 16 Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. 17 Clearly then, petitioner's theory has no merit. ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Footnotes

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1 Petition dated September 8, 1995, p. 1; Rollo, p. 3. 2 COMELEC Resolution dated May 6, 1995; Rollo, p. 18.

the defendant on probation for such period and and upon such terms and conditions as it may deem best. xxx xxx xxx

3 Resolution, id., pp. 1-2, Rollo, pp. 18-19. 4 Motion for Reconsideration dated May 16, 1995, p. 2; Rollo, p. 23. 5 Zari vs. Flores, 94 SCRA 317, 323 citing Tak Ng vs. Republic of the Phil., 41 Phil. 275; Court Administrator vs. San Andres, 197 SCRA 704; International Rice Research Institute vs. NLRC, 221 SCRA 760. 6 International Rice Research Institute vs. NLRC, id. at p. 767 citing In Re: Victorino Lanuevo, 66 SCRA 245. 7 Id. 8 Supra. 9 Id. at p. 323. 10 Supra. 11 Id. at p. 768. 12 Section 2(a) of P.D. 1612 (Anti-Fencing Law). 13 Dizon-Pamintuan vs. People, 234 SCRA 63, 72. 14 Id., at p. 73. 15 Id. at p. 74. 16 Section 4, P.D. No. 768. Sec. 4. Grant of Probation Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced the defendant but before he begins to serve his sentence and upon his application, suspend the execution of of said sentence and place 17 Heirs of the Late Francisco Abueg vs. Court of Appeals, 219 SCRA 82; Palo vs. Militante, 184 SCRA 395.

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& SUPREME COURT Manila EN BANC G.R. No. 147904 October 4, 2002

judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. The above provision explicitly lifts the disqualification to run for an elective office of a person convicted of a crime involving moral turpitude after five (5) years from the service of sentence. According to the COMELEC, inasmuch as petitioner was considered to have completed the service of his sentence on March 5, 1998, his five-year disqualification will end only on March 5, 2003. On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001. Hence, this petition. Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads: Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence. xxxx Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local

NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and CARLOS C. MONTES, respondents. DECISION CORONA, J.: Before this Court is a petition for certiorari under Rule 65 which seeks to annul and set aside the resolution dated May 7, 2001 of the Commission on Elections as well as the resolution dated May 12, 2001 denying petitioners motion for reconsideration. This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections. In ruling against petitioner, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election Code which provides as follows: Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final

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Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections.

Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija. Thus, on June 19, 2001, petitioner filed a supplemental petition which this Court merely noted in its resolution dated June 26, 2001. In his supplemental petition, petitioner assailed the 4. the act which the offender agrees to perform or which he executes proclamation of Sonia Lorenzo on the ground that the propriety of his is connected with the performance of his official duties.3 disqualification was still under review by this Court. Petitioner likewise asked this Court to declare him as the duly elected municipal mayor instead of Moral turpitude can be inferred from the third element. The fact that the Sonia Lorenzo. offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some On July 18, 2001, the Solicitor-General filed his manifestation and agreed favors, denotes a malicious intent on the part of the offender to renege on with petitioner that COMELEC should have applied Section 40 of the Local the duties which he owes his fellowmen and society in general. Also, the fact Government Code. that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the The main issue is whether or not petitioner was disqualified to run for mayor accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. in the 2001 elections. In resolving this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral turpitude and (2) whether it is the Omnibus Election Code or the Local Government It is the second sub-issue which is problematical. There appears to be a Code that should apply in this situation. glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code. Regarding the first sub-issue, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: It should be noted that the Omnibus Election Code (BP 881) was approved "x x x an act of baseness, vileness, or depravity in the private duties which a on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of man owes his fellow men, or to society in general, contrary to the accepted irreconcilable conflict between two laws, the later enactment must prevail, and customary rule of right and duty between man and woman or conduct being the more recent expression of legislative will.4 Legis posteriores contrary to justice, honesty, modesty, or good morals."1 priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Not every criminal act, however, involves moral turpitude. It frequently 2 Furthermore, the repealing clause of Section 534 of RA 7160 or the Local depends on the circumstances surrounding the violation of the law. Government Code states that: In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or through another; (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around.

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

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When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. In David vs. COMELEC5, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law.6 The reduction of the disqualification period from five to two years is the manifest intent. Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest. WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set aside. The petitioners prayer in his supplemental petition for his proclamation as the winner in the May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our jurisdiction, is hereby denied. SO ORDERED.

Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, and Callejo, Sr., JJ., concur. Davide, Jr., C.J., Mendoza, and Sandoval-Gutierrez, JJ., on leave. Morales, J., no part.

Footnotes

Zari vs. Flores, 94 SCRA 319 (1979). Dela Torre vs. Commission on Elections, 258 SCRA 483 (1996).

Luis B. Reyes, The Revised Penal Code, Book II, [1993 ed.], pp. 325-326).
4

Philippine National Bank vs. Cruz, 180 SCRA 206 (1989). 271 SCRA 90 (1997).

Collector of Internal Revenue vs. Manila Lodge No. 761, 105 Phil. 983 (1959).

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& SUPREME COURT Manila EN BANC G.R. No. 153475 November 13, 2002

ATTY. MIGUEL M. LINGATING, petitioner, vs. COMMISSION ON ELECTIONS and CESAR B. SULONG, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to set aside the resolution,1 dated April 4, 2002, of the Commission on Elections (COMELEC) en banc, reversing the resolution,2 dated August 1, 2001, of its First Division and dismissing the petition for disqualification filed by petitioner Miguel M. Lingating against respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga del Sur in the May 14, 2001 elections. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position "those removed from office as a result of an administrative case."3 It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals,4 was administratively charged (AC No. 12-91) with various offenses,5 and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.6

Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. After the parties had filed their memoranda, the case was submitted for resolution. Because the COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong was voted for in the elections, receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality. In a resolution dated August 1, 2001, the COMELECs First Division declared respondent Cesar B. Sulong disqualified. It held: Section 40(b) of the Local Government Code is clear that any person removed from office by reason of an administrative case is disqualified from running for any elective local office. From such point, it is clear that Respondent Sulong was declared guilty of having violated the Anti-Graft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga del Sur. . .which. . .has become final and executory, thereby depriving him of his right to run for public office. .... WHEREFORE, in the light of the foregoing, this Commission hereby resolves to GRANT this Petition and DISQUALIFY Respondent Cesar B. Sulong to run for Municipal mayor for Lapuyan, Zamboanga del Sur in the May 14, 2001 Elections in violation of Section 40[b] of the Local Government Code.7 Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7, 2001, of Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC No. 12-91 "has not become final and executory as the final disposition thereof was overtaken by the

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local elections of May 1992." He reiterated his claim that at no time had he been removed by virtue of the said decision.8 Petitioner filed an opposition contending, among other things, that the fact that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the decision signified that respondent Sulongs motion for reconsideration and/or notice of appeal had not been given due course by the Sangguniang Panlalawigan; and that respondent Sulongs claim that he had not been removed from office was belied by the fact that he (respondent Sulong) brought charges against Vicente Imbing for Usurpation of Official Functions (I.S. No. 92-35), in support of which respondent Sulong attested under oath that Imbing had succeeded him as mayor of Lapuyan.9 In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed and that he be installed as mayor of Lapuyan in view of private respondents disqualification. On August 30, 2001, the COMELECs First Division denied petitioners motion for execution on the ground that the disqualification of an elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated.10 Petitioner then filed a motion for reconsideration of this order.11 On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this case, reversing the resolution, dated August 1, 2001, of its First Division insofar as it found respondent Sulong disqualified from running as mayor. It held: The only issue in this case is whether or not the foregoing decision [in AC No. 12-91], assuming it has become final and executory, constitutes a ground for the disqualification of herein respondent-movant as a candidate in the elections [of May 14, 2001]. The records of the case reveal that the decision of the Sangguniang Panlalawigan was promulgated on February [4], 1992 finding respondent Sulong "guilty of dishonesty, falsification of public documents, malversation. . ." In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang dismissing him from office. In the 1995 May elections, respondent Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga del Sur.

While it is true that one of the disqualifications from running in an elective position is removal from office as a result of an administrative case, said provision no longer applies if the candidate whose qualification is questioned got re-elected to another term. In Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-election renders an administrative case moot and academic. .... Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04 February 1992 which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision has become final and executory. Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in the recent elections as evidenced by the results which found respondent Sulong to have won convincingly. .... WHEREFORE, premises considered, the Commission En Banc RESOLVED as it hereby RESOLVES to reverse the First Division Resolution [dated August 1, 2001] and DISMISS the petition for lack of merit.12 The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to occupy the office thus vacated. Hence, this petition by Lingating. Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections13in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections14 in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under 40(b) of the Local Government Code. We stated in Reyes:

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Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a "motion for reconsideration and/or notice of appeal;" that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondents motion. The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it was held15 that a party in a

disbarment proceeding under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was "overtaken by the local elections of May [11,]1992." Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to 6816 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Having come to the conclusion that respondent Sulong is not disqualified from holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioners contention that, as the candidate who obtained the second highest number of votes, he is entitled to be installed as mayor because the votes cast in favor of respondent Sulong were void. WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4, 2002, of the COMELEC en banc, dismissing petitioners petition for disqualification, is AFFIRMED. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Corona, Morales, Callejo, Sr., and Azcuna, JJ., concur. Austria-Martinez, J., on leave.

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Rollo, pp. 38-39. Petition, Annex G; Rollo, pp. 49-55. Id., Annex H; id., pp. 63-72. Id., Annex I; id., pp. 74-76. Id., Annex J; id., pp. 77-79. Rollo, pp. 86-87 212 SCRA 768 (1992). 254 SCRA 514, 525-526 (1996). Halimao v. Villanueva, 253 SCRA SCRA 1, 6 (1996).

10

Footnotes

11

12

13 1

Per Commissioner Luzviminda G. Tancangco, concurred in by Commissioners Rufino S.B. Javier and Ralph C. Lantion, with Commissioners Alfredo L. Benipayo, Mehol K. Sadain, and Florentino A. Tuason, Jr. concurring in the result. Commissioner Resurreccion Z. Borra filed a dissenting opinion.
2

14

15

Per Commissioner Resurreccion Z. Borra, concurred in by Commissioners Luzviminda G. Tancangco and Rufino S.B. Javier.
3

16

Section 68 of R.A. No. 7160 allows for the execution pending appeal of administrative decisions, thus "Execution Pending Appeal. An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal."

Disqualifications. The following persons are disqualified from running for any elective local position: .... (b) Those removed from office as a result of an administrative case;
4

Arno S. Madrigal, Victor S. Apostol, Lucas Cabot, Sr., and Yolanda Galeza.
5

Dishonesty, Falsification of Public Documents, Malversation of Public Funds and "violation of R.A. No. 3019."
6

Petition, Annexes A & C; Rollo, pp. 20-22, 30-36. The highest ranking municipal councilor of Lapuyan, Romeo Tan, also succeeded to the position vacated by Vicente Imbing. It appears that the Sangguniang Panlalawigan issued a resolution (Resolution No. 74) requesting the Philippine National Police (PNP) to assist in the enforcement of its decision in AC No. 12-91.

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& SUPREME COURT Manila EN BANC

effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied). Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," 3 because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint", 4 since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says: Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government

G.R. No. 104732 June 22, 1993 ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents. Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.: The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads (d) Chairman administrator The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the

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official or employee, including those in government-owned or appointment in an executive position in government, and thus neglect his controlled corporations . . . . constituents . . . ." 7 for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections. The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts. In full, Sec. 7 of Art. IX-B of the Constitution provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries. The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve fulltime with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ." Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. 11 The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of

appointive officials, there may be a law that will allow them to should foreclose the issue. It is a legislative choice." 15 The Senator took a hold other positions. view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint MR. FOZ. Yes, I suggest we make that difference, because him to the post. Without passing upon this view of Senator Saguisag, it in the case of appointive officials, there will be certain suffices to state that Congress intended the posts to be appointive, thus situations where the law should allow them to hold some nibbling in the bud the argument that they areex officio. other positions. 12 The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph. It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor. This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14

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The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by law. Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18In his treatise, Philippine Political Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office."

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, effects of Sec. 7, first par., had they considered the SBMA posts asex J., 20 "the choice of a person to fill an office constitutes the essence of his officio. appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of Cognizant of the complication that may arise from the way the discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate subject proviso was stated, Senator Rene Saguisag remarked that "if the 23 Conference Committee just said "the Mayor shall be the Chairman" then that Appellate Court we held:

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The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . . Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. 24 In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. The deliberation in the Constitutional Commission is enlightening: MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE. MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position. MR. DAVIDE. Yes, we should allow that prerogative. MR. FOZ. Resign from his position to accept an executive position. MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being appointed within the term for which he was elected, we may be depriving the government of the needed expertise of an individual. 25 Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office. Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with

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forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27 As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28 Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his appointment may be retained by him. The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated . . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective official shall be appointed or designated to another position in any capacity." 29 For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for change." 31 Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice. WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID. However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD. SO ORDERED.

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Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ., concur. Padilla, J., is on leave.

President alone, in the courts, or in the heads of departments, agencies, commission, or boards. "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." 5 Petitioners allege that the proviso constitutes a "limitation to the power of appointment of the President and therefore violates the separation of powers" and that "Congress cannot create the position and at the same time specify the person to fill up such position" (Petition, pp. 4-5; Rollo, pp. 56). 6 G.R. Nos. 83896 and 83815 were consolidated and decided jointly on 22 February 1991, 194 SCRA 317, 339. 7 Record of the Constitutional Commission, Vol. 1, p. 546. 8 Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in an Election. (a) No elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. "Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. "(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries." 9 Sec. 9, Art. XII, of the Constitution.

# Footnotes 1 An Act Accelerating the Conversion of Military Reservations into Other Productive Uses, Creating the Bases Conversion and Development Authority for this Purpose, Providing Funds Therefor and for Other Purposes," approved 13 March 1992, to take effect upon its publication in a newspaper of general circulation. 2 See "Action to Declare Unconstitutional Provisions of R.A. 7227 with Prohibition and Application for a Writ of Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p. 7. 3 Sec. 7, Art. IX-B, provides: "No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries." 4 Sec. 16, Art. VII, provides: "The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are not vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the

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10 Sec. 3, second par., Art. VII, of the Constitution. 11 Sec. 8, par. (1), Art. VIII, of the Constitution. This particular provision was approved in anticipation of a unicameral legislature. However, as it turn out, we adopted instead a bicameral form of government so that the seat allocated to the representative of Congress has to be split between a member of the Senate and a member of the House of Representative. Each being entitled to one-half vote in the deliberations in the Judicial and Bar Council. 12 Record of the Constitutional Commission, Vol. 5, p. 156. Section 4 of the Proposed Resolution No. 468, the precursor of the first paragraph of Sec. 7, read: "Unless otherwise provided by law, no elective official shall be eligible for appointment or designation in a temporary or acting capacity to any public office or position during his term" (Record of the Constitutional Commission, Vol. 1, p. 524). The following were reactions on the floor: FR. BERNAS. On page 3, Section 4, line 5, the provision begins with the phrase "Unless otherwiseprovided by law" which does not exist in the 1973 Constitution. This was inserted in a 1981 amendment. We know the reason why this was put here. It practically renders the provision useless because the whole matter becomes discretionary with the legislature. It is one of those instance in the 1973 Constitution, as amended and constantly reamended, where they threw in the phrase "Unless otherwise provided by law" precisely to give the President a free hand in his decreemaking power. xxx xxx xxx MR. FOZ. As presently worded now, the provision would allow the legislature to really provide otherwise, meaning, to allow an elective official to be appointed to an executive office. (Ibid., Vol. 1, p. 539.)

xxx xxx xxx MR. COLAYCO . . . . The way I understand this is that we are giving the legislature the power to authorize the appointment or designation in a temporary or acting capacity of an elective official to any public office or position during his term, Am I right? MR. FOZ. If a law is passed regarding this matter, then such law may reverse this provision as worded, but we have said earlier that we will entertain suggestions from the floor. MR. COLAYCO. Personally, I find the policy established in this provision meritorious. To make it a firm policy, I suggest that we delete the prefatory phrase "Unless otherwise provided by law. MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1, p. 549). As revised, known later as Sec. 4 of Resolution No. 10, and approved on third reading, the subject section read: "No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure" (Ibid., Vol. II, p. 788). 13 Supra, p. 335. 14 . . . . When, in the exigencies of government, it is necessary to create and define new duties, the legislative department has the discretion to determine whether additional offices shall be created, or these duties shall be attached to and become ex officio duties of existing offices. The power extends to the consolidation of offices resulting in abolishing one and attaching its powers and duties to the other. It matters not that the name commission or board is given to the body created . . . ." (Tayloe v. Davis, 212 Ala 282, 102 So. 433, 40 ALR 1052, 1057). 15 Transcripts of Session Proceedings, Senate, 6 February 1992, p. 57.

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16 Sec. 8, Art. IX-B, provides: "No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. "Pensions or gratuities shall not be considered as additional, double, or indirect compensation." 17 Black's Law Dictionary, 4th ed., p. 128 citing In re Nicholson's Estate, 104 Colo, 561, 93 P. 2d 880, 884. 18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W. 729, 730. 19 1987 ed., p. 180. 20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers (1890), p. 48, citing In Johnston v. Wilson, 2 N.H. 205, 9 Am. Dec. 50. 21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.) 137; Craig v. Norfolk, I Mod. 122. 22 Concepcion v. Paredes, No. 17539, 23 December 1921; 42 Phil. 599, 603, citing Keim vs. U.S. (1900), 177 U.S., 290. 23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35. 24 While it is inarguable that Congress has plenary authority to prescribe qualifications to a public office, it "may not however prescribe qualifications such that the President is entirely stripped of discretion, thus converting appointment to a mere ministerial act" (Gonzales, Neptali A., Administrative Law, Law on Public Officers and Election Law, 1966 ed., p. 173, citing Manalang v. Quitoriano, No. L-6898, 30 April 1954; 94 Phil. 903). 25 Record of the Constitutional Commission, vol. 1, p. 591. 26 63 Am Jur 2d 678-679.

27 67 CJS 295. 28 Lino Luna v. Rodriguez and De los Angeles, No. 12647, 26 November 1917, 37 Phil, 186, 192 (emphasis supplied). 29 Transcripts of Session Proceedings, Senate, 29 January 1992, pp. 89-90. 30 Vanhorne v. Dorrance, 1 L. ed. 391, cited in Cruz, Isagani A., Constitutional Law, 1987 ed., p. 7. 31 Cruz, Isagani A., Constitutional Law, supra.

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& SUPREME COURT Manila EN BANC G.R. No. 198742 August 10, 2012

On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005. On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an Australian citizen.6 The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010. Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the RTC. The petitions similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225. The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship. Ruling of the RTC

TEODORA SOBEJANA-CONDON, Petitioner, vs. COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents. DECISION REYES, J.: Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. The Case At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union. The Undisputed Facts The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.

In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in

Australia was not under oath. The law clearly mandates that the document containing the renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTCs decision disposed as follows: WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner): 1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba, La Union; 2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and 3) DECLARING the position of Vice-Mayor in said municipality vacant. SO ORDERED.9 Ruling of the COMELEC The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents. The decretal portion of the resolution reads: WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows: 1. To DISMISS the instant appeal for lack of merit; 2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and 3. To GRANT the Motion for Execution filed on November 12, 2010.

SO ORDERED.12 (Emphasis supplied)

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Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc. The Petitioners Arguments The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her. She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No. 9225. She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections. Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTCs judgment. The Issues Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement. The Courts Ruling

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I. An appeal may be simultaneously reinstated and definitively resolved by the COMELEC en banc in a resolution disposing of a motion for reconsideration. The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C of the Constitution, viz:

The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in several ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs adjudicatory powers. More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election II. The COMELEC en banc has the cases shall be heard and decided in division, provided that motions for power to order discretionary reconsideration of decisions shall be decided by the Commission en banc. execution of judgment. A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit: Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of remanding the same to the division that initially dismissed it. We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide the substantive merits of the petitioners appeal after ruling for its reinstatement. Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting documents13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the substantial merits of her appeal when she herself invoked the same in the first place.

We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of execution and that such function belongs only to the court of origin. There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure.15 Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis--vis election cases when we held that judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC whether in the exercise of its original or appellate jurisdiction. III. Private respondents are not estopped from questioning petitioners eligibility to hold public office. The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo warranto before the RTC.

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Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit: (1) Before election, pursuant to Section 78 thereof which provides that:

IV. Petitioner is disqualified from running for elective office for failure to renounce her Australian citizenship in accordance with Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship 18 Sec. 78. Petition to deny due course or to cancel a certificate for natural-born citizens who have lost their Philippine citizenship by taking an oath of allegiance to the Republic, thus: 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 Section 3. Retention of Philippine Citizenship. Any provision of law to the representation contained therein as required under Section contrary notwithstanding, natural-born citizens of the Philippines who have 74 hereof is false. The petition may be filed at any time not lost their Philippine citizenship by reason of their naturalization as citizens of later than twenty-five days from the time of the filing of the a foreign country are hereby deemed to have re-acquired Philippine certificate of candidacy and shall be decided, after due citizenship upon taking the following oath of allegiance to the Republic: notice and hearing, not later than fifteen days before the election; and "I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the (2) After election, pursuant to Section 253 thereof, viz: laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance Sec. 253. Petition for quo warranto. Any voter contesting thereto; and that I imposed this obligation upon myself voluntarily without the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility mental reservation or purpose of evasion." or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within Natural-born citizens of the Philippines who, after the effectivity of this Act, ten days after the proclamation of the results of the election. become citizens of a foreign country shall retain their Philippine citizenship (Emphasis ours) upon taking the aforesaid oath. Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections 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 Omnibus Election Code.17 The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz: Sec. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code cannot serve (1) Those intending to exercise their right of suffrage must meet the to bar them should they opt to file, as they did so file, a quo warranto petition requirements under Section 1, Article V of the Constitution, Republic Act No. under Section 253. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

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(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. (Emphasis ours) Under the provisions of the aforementioned law, the petitioner has validly reacquired her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine. On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath.

statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225. At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A. No. 9225 is one such instance. Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.20 The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship. The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus: The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of To obviate the fatal consequence of her inutile renunciation, the petitioner allegiance under Section 3 of Republic Act No. 9225, and (2) for those pleads the Court to interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an with the intent of the Legislature. She anchors her submission on the

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authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship; xxxx The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship.23 (Citation omitted and italics and underlining ours)

Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized Filipinos. Rep. Libanan replied in the affirmative. Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run for public office provided that they renounce their foreign citizenship. Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of foreign citizenship before any authorized public officer. Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision. In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.

Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the position of vice-mayor for his failure to make Rep. Javier however pointed out that the matter of voting is different a personal and sworn renunciation of his American citizenship. because in voting, one is not required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must We find no reason to depart from the mandatory nature infused by the renounce their foreign citizenship. He pointed out further that this is a above rulings to the phrase "sworn renunciation". The language of the contradiction in the Bill. provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read literally.25 The foreign citizenship Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired must be formally rejected through an affidavit duly sworn before an officer foreign citizenship and are now entitled to reacquire their Filipino citizenship authorized to administer oath. will be considered as natural-born citizens. As such, he likewise inquired It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a resort to the Journal of the House of Representatives invoked by the petitioner leads to the same inference, viz: INTERPELLATION OF REP. JAVIER whether they will also be considered qualified to run for the highest elective positions in the country. Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign citizenship and that they

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comply with the residency and registration requirements as provided for in the Constitution. Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without having to perform an act to complete or perfect his/her citizenship. Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of public officers. In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma requirement. On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship. As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they should be considered as repatriated citizens. In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to reacquire their Filipino citizenship.

Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ). Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship. On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat the purpose of the Bill. Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated citizens. Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not considered as natural-born citizens. In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens. In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality and only naturalized citizens are not considered as natural-born citizens. On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.27 The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the preceding and succeeding discussions in the records.

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The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress. It was Representative Javiers position that they should be considered as repatriated Filipinos and not as natural-born citizens since they will have to execute a personal and sworn renunciation of foreign citizenship. Naturalborn citizens are those who need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as a mere pro formarequirement. Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement only with respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this Court to believe, those who reacquire their Filipino citizenship and thereafter run for public office has the option of executing an unsworn affidavit of renunciation. It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public officers primary accountability of allegiance and loyalty, which provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officers abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines. To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise. Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is entitled to judicial notice. We disagree. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours) Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a

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section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law.30 The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods.1wphi1 As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same. We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the petitioners motion for reconsideration. We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship. This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.32 The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the

additional condition of a personal and sworn renunciation of foreign citizenship.34 The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity.35 In fine, R.A. No. 9225 categorically demands natural-born Filipinos who reacquire their citizenship and seek elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a prerequisite imposed for the exercise of the right to run for public office. Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines. WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto. SO ORDERED. Footnotes * On Official Leave. 1 Rollo, pp. 3-54. 2 Id. at 59-72. 3 Id. at 74-75. 4 Under the sala of Judge Rose Mary R. Molina-Alim; id. at 76-86.

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT. AMENDING FOR THE PURPOSE COMMONWEALTH ACT NO. 63, AS AMENDED AND FOR OTHER PURPOSES. Enacted August 29, 2003. 6 Rollo, p. 79. 7 Docketed as SPL. CV. ACTION CASE No. 78-BG. 8 Docketed as SPL. CV. ACTION CASE No. 76-BG. 9 Rollo, p. 86. 10 Id. at 74-75. 11 Id. at 59-72. 12 Id. at 67-68. 13 (1) Photocopy of a Letter addressed to the COMELEC dated November 10, 2010 issued by the Department of Immigration and & Citizenship of Australia, containing an advise that as of September 27, 2006, the petitioner is no longer an Australian citizen; and (2) photocopy of a Certificate of Authentication of the said letter dated November 23, 2010 issued by Grace Anne G. Bulos of the Consular Section of the Philippine Embassy in Canberra, Australia. (Id. at 62.) 14 Rule 36, Sec. 15. Preferential Disposition of Quo Warranto Cases. The courts shall give preference to quo warranto over all other cases, except those of habeas corpus. 15 "In the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character and effect." 16 468 Phil. 130 (2004). 17 Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999). 18 1) natural-born citizens who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country; and 2) natural-born citizens of the Philippines who, after the effectivity of the law, become citizens of a foreign country. 19 Abello v. Commissioner of Internal Revenue, 492 Phil. 303, 309310 (2005). 20 Id. at 310. 21 G.R. No. 182701, July 23, 2008, 559 SCRA 696. 22 G.R. No. 179848, November 29, 2008, 572 SCRA 295. 23 Id. at 306-308. 24 G.R. No. 180048, June 19, 2009, 590 SCRA 149. 25 Lokin, Jr. v. COMELEC, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385, 406. 26 Id. 27 JOURNAL OF THE HOUSE OF REPRESENTATIVES, June 2 to 5, 2003; rollo, pp. 94-95.

28

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Blacks Law Dictionary, Eighth Ed., p. 1101. 29 Manufacturers Hanover Trust Co. v. Guerrero, 445 Phil. 770, 777 (2003). 30 Asiavest Limited v. CA, 357 Phil 536, 551-552 (1998), citing Jovito Salonga, Private International Law, 101-102, 1995 ed.. 31 G.R. No. 160869, May 11, 2007, 523 SCRA 108. 32 See Parado v. Republic of the Philippines, 86 Phil. 340, 344 (1950). 33 Valles v. COMELEC, 392 Phil. 327, 340 (2000); Mercado v. Manzano, 367 Phil. 132, 152-153 (1999). 34 Jacot v. Dal, supra note 22, at 308. 35 Lopez v. COMELEC, supra note 21, at 701. 36 Jacot v. Dal, supra note 22, at 306.

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