Conflict of Laws Cases

CONFLICT OF LAWS CASES
Atty. Cecilio Duka

SSCR
TESTATE ESTATE OF C. O. BOHANAN, deceased.
PHILIPPINE TRUST Co., executor vs. MAGDALENA C.
BOHANAN, EDWARD C. BOHANAN, and MARY
LYDIA BOHANAN.
SYLLABUS: WILLS; TESTAMENTARY DISPOSITIONS,
WHAT LAW GOVERNS; APPROVAL OF PROJECT OF
PARTITION. Article 10 of the old Civil Code (Article 16,
new Civil Code) provides that the validity of testamentary
dispositions are to be governed by the national law of the
person whose succession is in question. In case at bar, the
testator was a citizen of the State of Nevada. Since the laws of
said state allow the testator to dispose of all his property
according to his will, his testamentary dispositions depriving
his wife and children of what should be their legitimes under
the laws of the Philippines, should be respected and the project
of partition made in accordance with his testamentary
dispositions should be approved.
ID.; ID.; JUDICIAL NOTICE OF FOREIGN LAW IF
INTRODUCED IN EVIDENCE.The pertinent law of the
state of the testator may be taken judicial notice of without
proof of such law having been offered at the hearing of the
project of partition where it appears that said law was admitted
by the court as exhibit during the probate of the will; that the
same was introduced as evidence of a motion of one of the
appellants for withdrawal of a certain sum of money; and that
the other appellants do not dispute the said law.
FACTS: Magdalena C. Bohanan were married on January 30,
1909, and that divorce was granted to him on May 20, 1922.
Decedent in this case gave out of the total estate (after
deducting administration expenses) of P211,639.33 in cash,
his grandson P90,819.67 and one-half of all shares of stock of
several mining companies and to his brother and sister the
same amount. To his children he gave a legacy of only P6,000
each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children
question the validity of the testamentary provisions disposing
of the estate in the manner above indicated, claiming that they
have been deprived of the legitimate that the laws of the form
concede to them.
CFI: Dismissed the objections filed by Magdalena C.
Bohanan, Mary Bohanan and Edward Bohanan to the project
of partition submitted by the executor and approving the said
project.The testator permanent residence or domicile in the
United States depended upon his personal intent or desire, and
he selected Nevada as his homicide and therefore at the time
of his death, he was a citizen of that state. Wherefore, the
court finds that the testator C. O. Bohanan was at the time of
his death a citizen of the United States and of the State of
Nevada and declares that his will and testament, Exhibit A, is
fully in accordance with the laws of the state of Nevada and

admits the same to probate.
ISSUE: (1) WON Magdalena C. Bohanan can claim and the
testamentary dispositions, especially those for the children
which are short of the legitime given them by the Civil Code
of the Philippines, are valid.
HELD: NO. The court below had found that the testator and
Magdalena C. Bohanan were married on January 30, 1909,
and that divorce was granted to him on May 20, 1922; that
sometime in 1925, Magdalena C. Bohanan married Carl Aaron
and this marriage was subsisting at the time of the death of the
testator. Since no right to share in the inheritance in favor of a
divorced wife exists in the State of Nevada and since the court
below had already found that there was no conjugal property
between the testator and Magdalena C. Bohanan, the latter can
now have no longer claim to pay portion of the estate left by
the testator.
Edward and Mary Lydia, who had received legacies in
the amount of P6,000 each only, and, therefore, have not been
given their shares in the estate which, in accordance with the
laws of the forum, should be two-thirds of the estate left by the
testator.
The old Civil Code, which is applicable to this case
because the testator died in 1944, expressly provides that
successional rights to personal property are to be earned by the
national law of the person whose succession is in question.
In the proceedings for the probate of the will, it was
found out and it was decided that the testator was a citizen of
the State of Nevada because he had selected this as his
domicile and his permanent residence. (See Decision dated
April 24, 1950, supra). So the question at issue is whether the
testementary dispositions, especially hose for the children
which are short of the legitime given them by the Civil Code
of the Philippines, are valid. It is not disputed that the laws of
Nevada allow a testator to dispose of all his properties by will
(Sec. 9905, Complied Nevada Laws of 1925, supra). The law
of Nevada, being a foreign law can only be proved in our
courts in the form and manner provided for by our Rules,
which are as follows:
SEC. 41. Proof of public or official record. An official
record or an entry therein, when admissible for any purpose,
may be evidenced by an official publication thereof or by a
copy tested by the officer having the legal custody of he
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. . . . (Rule 123).
We have, however, consulted the records of the case in
the court below and we have found that the foreign law was
introduced in evidence by appellant's (herein) counsel as
Exhibits "2".
In addition, the other appellants, children of the testator,
do not dispute the above-quoted provision of the laws of the
State of Nevada. Under all the above circumstances, we are
constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of
//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

JESSICA BERNARDO//ROSE MENOR//VAN VALIENTE//JOULLE MATIAS//
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1925, can be taken judicial notice of by us, without proof of

such law having been offered at the hearing of the project of
partition.As in accordance with Article 10 of the old Civil
Code, the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it has been
decided and it is not disputed that the national law of the
testator is that of the State of Nevada, already indicated above,
which allows a testator to dispose of all his property according
to his will, as in the case at bar, the order of the court
approving the project of partition made in accordance with the
testamentary provisions, must be, as it is hereby affirmed, with
costs against appellants.
IN THE MATTER OF THE ESTATE OF EDWARD
RANDOLPH HIX, DECEASED. A. W. FLUEMER,
PETITIONER AND APPELLANT, VS. ANNIE COUSINS
HIX, OPPOSITOR AND APPELLEE. [NO. 32636.
MARCH 17, 1930]
CONFLICT OF LAWS; CODE OF CIVIL PROCEDURE,
SECTIONS 300 AND 301, APPLIED.The laws of a foreign
jurisdiction do not prove themselves in our courts. The courts
of the Philippine Islands are not authorized to take judicial
notice of the laws of the various States of the American
Union. Such laws must be proved as facts. The requirements
of sections 300 and 301 of the Code of Civil Procedure must
be met.
FACTS: The special administrator of the estate of Edward
Randolph Hix appeals from a decision of Judge of First
Instance Tuason denying the probate of the document alleged
to be the last will and testament of the deceased. Appellee
contends that the appellant as a mere special administrator is
not authorized to carry on this appeal. It is the theory of the
petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence
in that jurisdiction, and that the laws of West Virginia govern.
To this end, there was submitted a copy of section 3868 of
Acts 1882, c. 84 as found in West Virginia Code, Annotated,
by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to
by the Director of the National Library.
ISSUE: WON the subject will be probated in the Philippines
HELD: In seeking probate of a will claimed to be validly
executed under a foreign law, the existence of such law must
first be duly proven in court before being recognized. The
laws of a foreign jurisdiction do not prove themselves in our
courts. The courts of the Philippine Islands are not authorized
to take judicial notice of the laws of the various States of the
American Union. Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no showing
that the book from which an extract was taken was printed or
published under the authority of the State of West Virginia, as
provided in section 300 of the Code of Civil Procedure. Nor
was the extract from the law attested by the certificate of the
officer having charge of the original, under the seal of the
State of West Virginia, as provided in section 301 of the Code
of Civil Procedure. No evidence was introduced to show that
the extract from the laws of West Virginia was in force at the
time the alleged will was executed. In addition, the due
execution of the will was not established. The only evidence

on this point is to be found in the testimony of the petitioner.
Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent
witnesses, or that these witnesses subscribed the will in the
presence of the testator and of each other as the law of West
Virginia seems to require. On the supposition that the
witnesses to the will reside without the Philippine Islands, it
would then be the duty of the petitioner to prove execution by
some other means (Code of Civil Procedure, sec. 633). It was
also necessary for the petitioner to prove that the testator had
his domicile in West Virginia and not in the Philippine
Islands. However, no attempt has been made to comply with
the provisions of sections 637, 638, and 639 of the Code of
Civil Procedure. For all of the foregoing, the judgment
appealed from will be affirmed, with the costs of this instance
against the appellant.
IN RE: TESTATE ESTATE OF THE DECEASED JOSE
SUNTAY, SILVINO SUNTAY VS IN RE: INTESTATE
ESTATE OF THE DECEASED JOSE SUNTAY,
FEDERICO SUNTAY G.R. NOS. L-3087 AND L-3088
FACTS: Jose Suntay, a Filipino citizen and resident of the
Philippines died in China leaving real and personal properties
in the Philippines and a house in china and children by the
first marriage and a child by the second marriage had with
Maria Lim who survived him. Intestate proceedings were
instituted in the CFI of Bulacan. The surviving widow filed a
petition for the probate of a last will and testament claimed to
have been executed and signed in the Philippines. This
petition was denied because of the loss of said will. The legal
requirement that the provisions of the lost will must be
"clearly and distinctly proved by at least two credible
witnesses" falls short. Credible witnesses mean competent
witnesses and those who testify to facts from or upon hearsay
are neither competent nor credible witnesses. As to the will
claimed to have been executed in China, The CFI also
disallowed the alleged will, hence this petition.
ISSUE: Whether or not the will claimed to have been
executed in china may be probated in the Philippines.
HELD: Yes, but the fact that the municipal district court of
Amoy, China is a probate court must be proved. The law of
china on procedure in the probate or allowance of wills must
also be proved. The legal requirements for the execution of a
valid will in china in 1931 should also be established by
competent evidence. The is no proof on these points.
The rpoceedings had in the municipal district court of Amoy,
China may be likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all
interested parties and the proceedings were held at the back of
such interested parties.
The will and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate
and allowance of wills. Consequently, the authenticated
transcript of proceedings held in China cannot be deemed and
accepted as proceedings leading to the probate or allowance of

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a will and , therefore the will referred to therein cannot be

allowed, filed and recorded by a competent court of this
country. The decree appealed from is affirmed.
QUERUBIN VS. QUERUBIN 47 PHIL O.G. 316

"Under interlocutory decree of March 7, 1949, the child, a girl
now 3 years old, was granted to deft husband, but the child
was to be kept in a neutral home; both parties were given
reasonable visitation and both were restrained from removing
the child out of the state. Deft has taken the child with him to
the Philippine Islands. At time of trial custody was apparently
denied ptf because she was then living with another man. She
is now married to this man and they have a well equipped
home. Ptf appears to be a devoted mother. She has one child,
the issue of her present marriage, and is also caring for a child
that was abandoned by certain friends of hers. Ptf's husband is
regularly and permanently employed. Witnesses testified in
behalf of the ptf in reference to her motherly qualities and the
condition of her home. She visited the child in question
sufficiently when the child was in the neutral home and
brought her toys and other articles. Service of the order to
show cause was made on deft's attorneys of record. "The
interlocutory decree is modified so as to provide that custody
of the child shall be awarded to ptf and deft shall have the
right of reasonable visitation. Deft shall pay ptf for the support
of the child $30 each month on the 1st day thereof,
commencing Jan. 1950." "The rule is of common knowledge
that the definitive judgment of a court of another state between
the same parties on the same cause of action, on the merits of
the case is conclusive, but it must be a definitive judgment on
the merits only. Where the judgment is merely interlocutory,
the determination of the question by the court which rendered
it did not settle and adjudge finally the rights of the parties." A
judgment rendered by a competent court, having jurisdiction
in one state, is conclusive on the merits in the courts of every
other state, when made the basis of an action and the merits
cannot be reinvestigated. Our own Supreme Court so holds.
Cook vs. Thornhill, 13 Tex. 293, 65 Am. Dec. 63. But before
such a judgment rendered in one state is entitled to acceptance,
in the courts of another state, as conclusive on the merits, it
must be a final judgment and not merely an interlocutory
decree. "A consideration of all the facts and circumstances
leads to the conclusion that comity does not require the courts
of this state, regardless of the wellbeing of the child, to lend
their aid to the enforcement of the lowa decree by returning
Winifred to the custody of her grandmother. A child is not a
chattel to which title and the right of possession may be
secured by the decree of any court. If the decree had been
rendered by a domestic court of competent jurisdiction, it
would not have conclusively established the right to the
custody of the child. In a contest between rival claimants, this
court would have been free, notwithstanding the decree, to
award the custody solely with an eye to the child's welfare."
(State ex rel. Aldridge vs. Aldridge, 204 N. W. 324.) "On
habeas corpus by the mother to obtain possession from the
father of two children aged four and six years, whose custody
she alleged had been awarded her in divorce proceedings in
another state, it appeared that the mother was without
property, and had no means of support save her personal
earnings of $15 per month, was in poor health, and lived with
her mother, in immoral surroundings, and that the father was

an industrious and sober man, earning $100 per month. Held,
that the welfare of the children was the only thing to be
considered, and a judgment awarding their custody to the
mother should be reversed." "On the question of comity, this
court said in the habeas corpus case of In re Stockman, 71
Mich. 180, 38 N. W. 876: " 'Comity cannot be considered in a
case like this, when the future welf are of the child is the vital
question in the case. The good of the child is superior to all
other considerations. It is the polar star to guide to the
conclusion in all cases of infants, whether the question is
raised upon a writ of habeas corpus or in a court of chancery.'"
SILVERIO V. REPUBLIC G.R. No. 174689. October 19,
2007.
FACTS: On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his first name
and sex in his birth certificate in the Regional Trial Court of
Manila, Branch 8.
Petitioner alleged in his petition that he was born in the City of
Manila to the spouses Melecio Petines Silverio and Anita
Aquino Dantes on April 4, 1962. His name was registered as
Rommel Jacinto Dantes Silverio in his certificate of live
birth (birth certificate). His sex was registered as male.
He further alleged that he is a male transsexual, that is,
anatomically male but feels, thinks and acts as a female and
that he had always identified himself with girls since
childhood. Feeling trapped in a mans body, he consulted
several doctors in the United States. He underwent
psychological
examination, hormone treatment and breast augmentation. His
attempts to transform himself to a woman culminated on
January 27, 2001 when he underwent sex reassignment
surgery in Bangkok, Thailand. He was thereafter examined by
Dr. Marcelino ReysioCruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a
medical certificate attesting that he (petitioner) had in fact
undergone the procedure.
From then on, petitioner lived as a female and was in fact
engaged to be married. He then sought to have his name in his
birth certificate changed from Rommel Jacinto to Mely,
and his sex from male to female.
The trial court granted the petition because it is in consonance
with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice
to anyone.
ISSUE: WON A Persons First Name Can Be Changed On
the Ground of Sex Reassignment
HELD: The State has an interest in the names borne by
individuals and entities for purposes of identification. A
change of name is a privilege, not a right. Petitions for change
of name are controlled by statutes. In this connection, Article
376 of the Civil Code provides: ART. 376. No person can
change his name or surname without judicial authority. This
Civil Code provision was amended by RA 9048. RA 9048

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provides the grounds for which change of first name may be

allowed:
SECTION 4. Grounds for Change of First Name or
Nickname.
The petition for change of first name or nickname may be
allowed in
any of the following cases:
ordinarily terminable at his own will, such as his being

legitimate or illegitimate, or his being married or not. The
comprehensive term
status include such matters as the beginning and end of
legal personality, capacity to have rights in general, family
relations, and its various aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce, and sometimes
even succession.
1. The petitioner finds the first name or nickname to be

ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname
in the community; or
3. The change will avoid confusion.
A persons sex is an essential factor in marriage and family

relations. It is a part of a persons legal capacity and civil
status.
Petitioners basis in praying for the change of his first name

was his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself
into through surgery. However, a change of name does not
alter ones legal capacity or civil status. RA 9048 does not
sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing
petitioners first name for his declared purpose may only
create grave complications in the civil registry and the public
interest.
However, marriage, one of the most sacred social institutions,

is a special contract of permanent union between a man and a
woman. One of its essential requisites is the legal capacity of
the contracting parties who must be a male and a female. To
grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man
who has undergone sex reassignment (a male to female
postoperative transsexual).
Second, there are various laws which apply particularly to
women such as the provisions of the Labor Code on
employment of women, certain felonies under the Revised
Penal Code and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court, among
others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.
Before a person can legally change his given name, he must

present proper or reasonable cause or any compelling reason
justifying such change.
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision
was amended by RA 9048 in so far as clerical or
typographical errors are involved.
RA 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors. Rule 108 now applies only
to substantial changes and corrections in entries in the civil
register.
Article 407 of the Civil Code include even those that occur
after birth. However, no reasonable interpretation of the
provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means to make or set a right; to remove the
faults or error from while to change means to replace
something with something else of the same kind or with
something that serves as a substitute. The birth certificate of
petitioner contained no error. All entries therein, including
those corresponding to his first name and sex, were all correct.
No correction is necessary.
The status of a person in law includes all his personal
qualities and relations, more or less permanent in nature, not
The changes sought by petitioner will have serious and Wide

ranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioners
first step towards his eventual marriage to his male fianc.
REPUBLIC OF THE PHILIPPINES VS JENNIFER

CAGANDAHAN G.R. NO. 166676, SEPTEMBER 12,
2008
FACTS: Jennifer Cagandahan filed a Petition for correction
of Entries in Birth Certificate before the RTC. In her petition,
she alleged that she was born and registered as female in the
certificate of Live Birth but while growing up secondary male
characteristics and was diagnosed to have congenital adrenal
Hyperlasia (CAH) which is a condition where persons thus
afflicted possess both male and female characteristics. She
alleged that for all interest and appearances as well as in mind
and emotion, she become a male person, thus she prayed that
her birth certificate be corrected such that her gender be
changed from female to male and her first name be changed
from Jennifer to Jeff. To prove her claim, respondent testified
and presented testimony of Dr. Sionzon issued a medical
certificate stating that respondents condition is permanent and
recommended the change of gender because respondent has
made up her mind, adjusted to her chosen role as male, and the
gender change would be advantageous to her. RTC granted
respondents petition. This petition for review seeking a
reversal of the decision of the RTC which granted the Petition

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for correction of entries in birth certificate filed by Jennifer

Cagandahan.
ISSUE: WON the trial court erred in ordering the correction
of entries in the birth of certificate of respondent to change her
gender from female to male on the ground of her medical
condition knows as CAH and her name from Jennifer to Jeff.
HELD: In the absence of a law on the matter, the Court will
not dictate on respondent concerning a matter so innately
private as ones sexuality and lifestyle preferences, much less
on whether or not to undergo medical treatment to reverse the
male tendency due to CAH. The Court will not consider
respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to
take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human
species. Respondent is the one who has to live with
his intersex anatomy.To him belongs the human right to the
pursuit of happiness and of health. Thus, to him should belong
the primordial choice of what courses of action to take along
the path of his sexual development and maturation. In the
absence of evidence that respondent is an incompetent [27] and
in the absence of evidence to show that classifying respondent
as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid
and justified the respondents position and his personal
judgment of being a male.
In so ruling we do no more than give respect to (1)
the diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect
respondents congenital condition and his mature decision to be
a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with
his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.
As for respondents change of name under Rule 103,
this Court has held that a change of name is not a matter of
right but of judicial discretion, to be exercised in the light of
the reasons adduced and the consequences that will
follow.[28] The trial courts grant of respondents change of
name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred
gender, we find merit in respondents change of name.Such a
change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republics petition is DENIED.
MARIA JEANETTE C. TECSON VS. COMLEC,
RONALD ALLAN KELLY POE (A.K.A. FERNANDO
POE, JR.) GR NO. 161434, MARCH 3, 2004
FACTS: On 31 December 2003, respondent Ronald Allan
Kelly Poe, also known as Fernando Poe, Jr. (hereinafter
"FPJ"), filed his certificate of candidacy for the position of
President of the Republic of the Philippines under the
Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the

forthcoming national elections. In his certificate of candidacy,
FPJ, representing himself to be a natural-born citizen of
the Philippines, stated his name to be "Fernando Jr.," or
"Ronald Allan" Poe, his date of birth to be 20 August
1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824
filed before the ComElec to disqualify FPJ and to deny due
course or to cancel his certificate of candidacy upon the thesis
that FPJ made a material misrepresentation in his certificate of
candidacy by claiming to be a natural-born Filipino citizen
when in truth, according to Fornier, his parents were
foreigners:
His mother, Bessie Kelley Poe, was an American,
and his father, Allan Poe, was a Spanish national, being the
son of Lorenzo Pou, a Spanish subject.
Granting, petitioner asseverated, that Allan F. Poe
was a Filipino citizen, he could not have transmitted his
Filipino citizenship to FPJ, the latter being an illegitimate
child of an alien mother. Petitioner based the allegation of the
illegitimate birth of respondent on two assertions - first, Allan
F. Poe contracted a prior marriage to a certain Paulita Gomez
before his marriage to Bessie Kelley and, second, even if no
such prior marriage had existed, Allan F. Poe, married Bessie
Kelly only a year after the birth of respondent.
Petitioner, in support of his claim, presented several
documentary exhibits
1) A copy of the certificate of birth of FPJ,
2) A certified photocopy of an affidavit executed in Spanish
by Paulita Poe y Gomez attesting to her having filed a case for
bigamy and concubinage against the father of respondent,
Allan F. Poe, after discovering his bigamous relationship with
Bessie Kelley,
3) An English translation of the affidavit aforesaid,
4) A certified photocopy of the certificate of birth of Allan F.
Poe,
5) A certification issued by the Director of the Records
Management and Archives Office, attesting to the fact that
there was no record in the National Archives that a Lorenzo
Poe or Lorenzo Pou resided or entered the Philippines before
1907, and
6) A certification from the Officer-In-Charge of the Archives
Division of the National Archives to the effect that no
available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.

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Respondent, on the other hand presented twenty-two

documentary pieces of evidence, the more significant ones
being
a) A certification issued by Estrella M. Domingo of the
Archives Division of the National Archives that there
appeared to be no available information regarding the birth of
Allan F. Poe in the registry of births for San Carlos,
Pangasinan,
b) A certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available
information about the marriage of Allan F. Poe and Paulita
Gomez could be found,
Section 52. Powers and functions of the Commission on

Elections. In addition to the powers and functions conferred
upon it by the Constitution, the Commission shall have
exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections and in relation to
Article 69 of the Omnibus Election Code which would
authorize "any interested party" to file a verified petition to
deny or cancel the certificate of candidacy of any nuisance
candidate.
Decisions of the COMELEC on disqualification cases may be
reviewed by the Supreme Court per Rule 64[2] in an action
for certiorari under Rule 65[3] of the Revised Rules of Civil
Procedure. Section 7, Article IX, of the 1987 Constitution also
reads
c) A certificate of birth of Ronald Allan Poe,

d) Original Certificate of Title No. P-2247 of the Registry of
Deeds for the Province of Pangasinan, in the name of Lorenzo
Pou,
e) Copies of Tax Declaration No. 20844, No. 20643, No.
23477 and No. 23478 in the name of Lorenzo Pou,
f) A copy of the certificate of death of Lorenzo Pou,
g) A copy of the purported marriage contract between
Fernando Pou and Bessie Kelley, and
h) A certification issued by the City Civil Registrar of San
Carlos City, Pangasinan, stating that the records of birth in the
said office during the period of from 1900 until May 1946
were totally destroyed during World War II.
The COMELEC dismissed SPA No. 04-003 for lack of merit.
However, he subsequently filed his Motion for
Reconsideration, which was later on denied by the ComElec
en banc. Hence the petition now is here before the Court
conformably with Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure.
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to
have the COMELEC deny due course to or cancel FPJs
certificate of candidacy for alleged misrepresentation of a
material fact (i.e., that FPJ was a natural-born citizen) before
the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code
Section 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.
"Each Commission shall decide by a majority vote of all its

Members any case or matter brought before it within sixty
days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision
or resolution upon the filing of the last pleading, brief, or
memorandum, required by the rules of the Commission or by
the Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from
receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution
provides that judicial power is vested in one Supreme Court
and in such lower courts as may be established by law which
power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of
the Government.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in
G. R. No. 161634, invoke the provisions of Article VII,
Section 4, paragraph 7, of the 1987 Constitution in assailing
the jurisdiction of the COMELEC when it took cognizance of
SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it.
"The Supreme Court, sitting en banc, shall be the sole judge of
all contests relating to the election, returns, and qualifications
of the President or Vice-President, and may promulgate its
rules for the purpose."
Ordinary usage would characterize a "contest" in
reference to a post-election scenario. Election contests consist
of either an election protest or a quo warranto which, although
two distinct remedies, would have one objective in view, i.e.,
to dislodge the winning candidate from office. A perusal of the
phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of
the Presidential Electoral Tribunal," promulgated by the

Page 6
Supreme Court en banc on 18 April 1992, would support this

premise Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of
all contests relating to the election, returns, and qualifications
of the President or Vice-President of the Philippines.
The Local Setting - from Spanish

Times to the Present
Rule 13. How Initiated. - An election contest is initiated by the

filing of an election protest or a petition for quo warranto
against the President or Vice-President. An election protest
shall not include a petition for quo warranto. A petition
for quo warranto shall not include an election protest.
There was no such term as "Philippine citizens" during the

Spanish regime but "subjects of Spain" or "Spanish subjects."
In church records, the natives were called 'indios', denoting a
low regard for the inhabitants of the archipelago. Spanish laws
on citizenship became highly codified during the 19th century
but their sheer number made it difficult to point to one
comprehensive law. Not all of these citizenship laws of Spain
however, were made to apply to the Philippine Islands except
for those explicitly extended by Royal Decrees.
Rule 14. Election Protest. - Only the registered candidate for

President or for Vice-President of the Philippines who
received the second or third highest number of votes may
contest the election of the President or the Vice-President, as
the case may be, by filing a verified petition with the Clerk of
the Presidential Electoral Tribunal within thirty (30) days after
the proclamation of the winner.
Spanish laws on citizenship were traced back to the Novisima

Recopilacion, promulgated in Spain on 16 July 1805 but as to
whether the law was extended to the Philippines remained to
be the subject of differing views among experts; [15] however,
three royal decrees were undisputably made applicable to
Spaniards in the Philippines - the Order de la Regencia of 14
August 1841.
The rules categorically speak of the jurisdiction of the tribunal

over contests relating to the election, returns and qualifications
of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo
warranto proceeding is generally defined as being an action
against a person who usurps, intrudes into, or unlawfully holds
or exercises a public office. In such context, the election
contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received
either the second or third highest number of votes could file an
election protest. This rule again presupposes a postelection scenario.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C.
Tecson, et al., vs. Commission on Elections et al.," and G. R.
No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan
Kelley Poe a.k.a. Fernando Poe, Jr." would have to be
dismissed for want of jurisdiction.
The Spanish Constitution of 1876 was never extended to

the Philippine Islands because of the express mandate of its
Article 89, according to which the provisions of
the Ultramar among which this country was included, would
be governed by special laws.[19]
It was only the Civil Code of Spain, made effective in
this jurisdiction on 18 December 1889, which came out with
the first categorical enumeration of who were Spanish citizens.
(a) Persons born in Spanish territory,
(b) Children of a Spanish father or mother, even if
they were born outside of Spain,
(c) Foreigners who have obtained naturalization
papers,
The Citizenship Issue

Now, to the basic issue; it should be helpful to first give a
brief historical background on the concept of citizenship.
(d) Those who, without such papers, may have

become domiciled inhabitants of any town
of the Monarchy.
The earliest understanding of citizenship was that given by

Aristotle, who, sometime in 384 to 322 B.C., described the
"citizen" to refer to a man who shared in the administration of
justice and in the holding of an office. The concept grew to
include one who would both govern and be governed, for
which qualifications like autonomy, judgment and loyalty
could be expected. Citizenship was seen to deal with rights
and entitlements, on the one hand, and with concomitant
obligations, on the other.
The year 1898 was another turning point in Philippine

history. Already in the state of decline as a superpower, Spain
was forced to so cede her sole colony in the East to an
upcoming world power, the United States. An accepted
principle of international law dictated that a change in
sovereignty, while resulting in an abrogation of all political
laws then in force, would have no effect on civil laws, which
would remain virtually intact.
The concept of citizenship had undergone changes over the

centuries. In the 18th century, the concept was limited, by and
large, to civil citizenship, which established the rights
necessary for individual freedom, such as rights to property,
personal liberty and justice.
The Treaty of Paris was entered into on 10 December 1898

between Spain and the United States. Under Article IX of the
treaty, the civil rights and political status of the native
inhabitants of the territories ceded to the United States would
be determined by its Congress.

Page 7
"The civil rights and political status of the native inhabitants

of the territories hereby ceded to the United States shall be
determined by the Congress."
Upon the ratification of the treaty, and pending legislation by
the United States Congress on the subject, the native
inhabitants of the Philippines ceased to be Spanish
subjects. Although they did not become American citizens,
they, however, also ceased to be "aliens" under American laws
and were thus issued passports describing them to be citizens
of the Philippines entitled to the protection of the United
States.
Under the organic act, a citizen of the Philippines was one
who was an inhabitant of the Philippines, and a Spanish
subject on the 11th day of April 1899. The term inhabitant was
taken to include 1) a native-born inhabitant, 2) an inhabitant
who was a native of Peninsular Spain, and 3) an inhabitant
who obtained Spanish papers on or before 11 April 1899.
Controversy arose on to the status of children born in the
Philippines from 11 April 1899 to 01 July 1902, during which
period no citizenship law was extant in the
Philippines. Weight was given to the view, articulated in
jurisprudential writing at the time, that the common law
principle of jus soli, otherwise also known as the principle of
territoriality, operative in the United States and England,
governed those born in the Philippine Archipelago within that
period.
In 23 March 1912, the Congress of the United States
made the following amendment to the Philippine Bill of 1902
-
(2) Those born in the Philippines Islands of foreign parents

who, before the adoption of this Constitution, had been elected
to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and
upon reaching the age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
Subsection (4), Article III, of the 1935 Constitution,
taken together with existing civil law provisions at the time,
which provided that women would automatically lose their
Filipino citizenship and acquire that of their foreign husbands,
resulted in discriminatory situations that effectively
incapacitated the women from transmitting their Filipino
citizenship to their legitimate children and required
illegitimate children of Filipino mothers to still elect Filipino
citizenship upon reaching the age of majority. Seeking to
correct this anomaly, as well as fully cognizant of the newly
found status of Filipino women as equals to men, the framers
of the 1973 Constitution crafted the provisions of the new
Constitution on citizenship to reflect such concerns Section 1, Article III, 1973 Constitution - The following are
citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.
"Provided, That the Philippine Legislature is hereby

authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do
not come within the foregoing provisions, the natives of other
insular possession of the United States, and such other persons
residing in the Philippine Islands who would become citizens
of the United States, under the laws of the United States, if
residing therein."
(2) Those whose fathers or mothers are citizens of the

Philippines.
Under the Jones Law, a native-born inhabitant of the

Philippines was deemed to be a citizen of the Philippines as of
11 April 1899 if he was,
For good measure, Section 2 of the same article also

further provided that
1) A subject of Spain on 11 April 1899,
"A female citizen of the Philippines who marries an alien

retains her Philippine citizenship, unless by her act or
omission she is deemed, under the law to have renounced her
citizenship."
2) Residing in the Philippines on said date, and,

3) Since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on
whether or not jus soli was a mode of acquiring citizenship,
the 1935 Constitution brought to an end to any such link with
common law, by adopting, once and for all, jus sanguinis or
blood relationship as being the basis of Filipino citizenship -
(3) Those who elect Philippine citizenship pursuant to the

provisions of the Constitution of nineteen hundred and thirtyfive.
The 1987 Constitution generally adopted the provisions

of the 1973 Constitution, except for subsection (3) thereof that
aimed to correct the irregular situation generated by the
questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
Section 1, Article III, 1935 Constitution. The following are

citizens of the Philippines -
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time
of the adoption of this Constitution
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.

Page 8
(2) Those whose fathers or mothers are citizens of the

Philippines.
3. Allan F. Poe and Bessie Kelley were married to

each other on 16 September, 1940;
(3) Those born before January 17, 1973 of Filipino

mothers, who elect Philippine citizenship upon reaching
the age of majority; and
4. The father of Allan F. Poe was Lorenzo Poe; and

5. At the time of his death on 11 September 1954,
Lorenzo Poe was 84 years old.

Pieces of evidence have been presented in the proceedings in
the ComElec.
The Case Of FPJ
I.
Section 2, Article VII, of the 1987 Constitution

expresses:
II.
"No person may be elected President unless he is a naturalborn citizen of the Philippines, a registered voter, able to read
and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years
immediately preceding such election."
III.
IV.
The term "natural-born citizens," is defined to include

"those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine
citizenship."
Documentary evidence adduced by petitioner would tend
to indicate that the earliest established direct ascendant of FPJ
was his paternal grandfather Lorenzo Pou, married to Marta
Reyes, the father of Allan F. Poe. While the record of birth of
Lorenzo Pou had not been presented in evidence, his death
certificate, however, identified him to be a Filipino, a resident
of San Carlos, Pangasinan, and 84 years old at the time of his
death on 11 September 1954. The certificate of birth of the
father of FPJ, Allan F. Poe, showed that he was born on 17
May 1915 to an Espaol father, Lorenzo Pou, and a mestiza
Espaol mother, Marta Reyes. Introduced by petitioner was an
uncertified copy of a supposed certificate of the alleged
marriage of Allan F. Poe and Paulita Gomez on 05 July
1936. The marriage certificate of Allan F. Poe and Bessie
Kelley reflected the date of their marriage to be on 16
September 1940. In the same certificate, Allan F. Poe was
stated to be twenty-five years old, unmarried, and a Filipino
citizen, and Bessie Kelley to be twenty-two years old,
unmarried, and an American citizen. The birth certificate of
FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to
Bessie Kelly, an American citizen, twenty-one years old and
married.
Considering the reservations made by the parties on the
veracity of some of the entries on the birth certificate of
respondent and the marriage certificate of his parents, the only
conclusions that could be drawn with some degree of certainty
from the documents would be that 1. The parents of FPJ were Allan F. Poe and Bessie
Kelley;
2. FPJ was born to them on 20 August 1939;
V.
The birth certificate of FPJ was marked Exhibit

"A" for petitioner and Exhibit "3" for
respondent.
The marriage certificate of Allan F. Poe to
Bessie Kelley was submitted as Exhibit "21" for
respondent.
The death certificate of Lorenzo Pou was
submitted by respondent as his Exhibit "5."
While the last two documents were submitted in
evidence for respondent, the admissibility
thereof, particularly in reference to the facts
which they purported to show, i.e., the marriage
certificate in relation to the date of marriage of
Allan F. Poe to Bessie Kelley and the death
certificate relative to the death of Lorenzo Pou
on 11 September 1954 in San Carlos,
Pangasinan, were all admitted by petitioner, who
had utilized those material statements in his
argument. All three documents were certified
true copies of the originals.
Section 3, Rule 130, Rules of Court states that -
Original document must be produced; exceptions. - When the

subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself,
except in the following cases:
xxxxxxxxx
(d) When the original is a public record in the custody of a
public office or is recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou,
the marriage certificate of Allan F. Poe and Bessie Kelly, and
the birth certificate of FPJ, constitute prima facie proof of
their contents. Section 44, Rule 130, of the Rules of Court
provides:
Entries in official records. Entries in official records made in
the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the
facts therein stated.
The death certificate of Lorenzo Pou would indicate that he
died on 11 September 1954, at the age of 84 years, in San
Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou
was born sometime in the year 1870 when the Philippines was
still a colony of Spain. Petitioner would argue that Lorenzo

Page 9
Pou was not in the Philippines during the crucial period of

from 1898 to 1902 considering that there was no existing
record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show
that Lorenzo Pou was at any other place during the same
period. In his death certificate, the residence of Lorenzo Pou
was stated to be San Carlos, Pangasinan. In the absence of any
evidence to the contrary, it should be sound to conclude, or at
least to presume, that the place of residence of a person at the
time of his death was also his residence before death. It would
be extremely doubtful if the Records Management and
Archives Office would have had complete records of all
residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Under the Civil Code of Spain, which was in force in the
Philippines from 08 December 1889 up until the day prior to
30 August 1950 when the Civil Code of the Philippines took
effect, acknowledgment was required to establish filiation or
paternity.Acknowledgment was either judicial (compulsory)
or voluntary. Judicial or compulsory acknowledgment was
possible only if done during the lifetime of the putative parent;
voluntary acknowledgment could only be had in a record of
birth, a will, or a public document.
In case of an illegitimate child, the birth certificate shall
be signed and sworn to jointly by the parents of the infant or
only by the mother if the father refuses. In the latter case, it
shall not be permissible to state or reveal in the document the
name of the father who refuses to acknowledge the child, or to
give therein any information by which such father could be
identified.
In order that the birth certificate could then be utilized to
prove voluntary acknowledgment of filiation or paternity, the
certificate was required to be signed or sworn to by the
father. The failure of such requirement rendered the same
useless as being an authoritative document of recognition.
In Mendoza vs. Mella, the Court ruled "Since Rodolfo was born in 1935, after the registry law was
enacted, the question here really is whether or not his birth
certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the names
of both parents, there is no showing that they signed the
original, let alone swore to its contents as required in Section 5
of Act No. 3753. For all that might have happened, it was not
even they or either of them who furnished the data to be
entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be
made, according to the same Article 131. True enough, but in
such a case, there must be a clear statement in the document
that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both

parties, nowhere in the document was the signature of Allan F.
Poe found. There being no will apparently executed, or at least
shown to have been executed, by decedent Allan F. Poe, the
only other proof of voluntary recognition remained to be
"some other public document."
In Pareja vs. Pareja,
"Under the Spanish Civil Code there are two classes of public
documents, those executed by private individuals which must
be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document
pointed out in Article 131 as one of the means by which
recognition may be made belongs to the first class."
The 1950 Civil Code categorized the acknowledgment or
recognition of illegitimate children into voluntary, legal or
compulsory.
Voluntary recognition was required to be expressedly made in
a record of birth, a will, a statement before a court of record or
in any authentic writing. Legal acknowledgment took place in
favor of full blood brothers and sisters of an illegitimate child
who was recognized or judicially declared as
natural. Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any
evidence to prove filiation. Unlike an action to claim
legitimacy which would last during the lifetime of the child,
and might pass exceptionally to the heirs of the child, an
action to claim acknowledgment, however, could only be
brought during the lifetime of the presumed parent.
The Family Code has further liberalized the rules; Article 172,
Article 173, and Article 175 provide:
Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.

Page 10
Art. 173. The action to claim legitimacy may be brought by

the child during his or her lifetime and shall be transmitted to
the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same, evidence as
legitimate children.
The action must be brought within the same period specified
in Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
These distinctions between legitimacy and illegitimacy were

codified in the Spanish Civil Code, and the invidious
discrimination survived when the Spanish Civil Code became
the primary source of our own Civil Code. Such distinction,
however, remains and should remain only in the sphere of
civil law and not unduly impede or impinge on the domain of
political law.
The proof of filiation or paternity for purposes of determining
his citizenship status should thus be deemed independent from
and not inextricably tied up with that prescribed for civil law
purposes. The Civil Code or Family Code provisions on proof
of filiation or paternity, although good law, do not have
preclusive effects on matters alien to personal and family
relations. The ordinary rules on evidence could well and
should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code
or Family Code provisions.
The provisions of the Family Code are retroactively applied.

It should be apparent that the growing trend to liberalize the
acknowledgment or recognition of illegitimate children is an
attempt to break away from the traditional idea of keeping
well apart legitimate and non-legitimate relationships within
the family in favor of the greater interest and welfare of the
child. The provisions are intended to merely govern the
private and personal affairs of the family. There is little, if
any, to indicate that the legitimate or illegitimate civil status of
the individual would also affect his political rights or, in
general, his relationship to the State. While, indeed, provisions
on "citizenship" could be found in the Civil Code, such
provisions must be taken in the context of private relations, the
domain of civil law.
"Civil Law is that branch of law which has for its double
purpose the organization of the family and the regulation of
property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance,
authority and obedience among members of a family, and
those which exist among members of a society for the
protection of private interests."
The relevance of "citizenship" or "nationality" to Civil Law is
best exemplified in Article 15 of the Civil Code, stating that:
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
This explains the need to incorporate in the code a reiteration
of the Constitutional provisions on citizenship. Similarly,
citizenship is significant in civil relationships found in
different parts of the Civil Code such as on successional rights
and family relations. In adoption, for instance, an adopted
child would be considered the child of his adoptive parents
and accorded the same rights as their legitimate child but such
legal fiction extended only to define his rights under civil law.
Petitioners Argument For

Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a
Filipino citizen, he could not have transmitted his citizenship
to respondent FPJ, the latter being an illegitimate
child. According to petitioner, prior to his marriage to Bessie
Kelley, Allan F. Poe, on July 5, 1936, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage
to Bessie Kelley bigamous and respondent FPJ an illegitimate
child. The veracity of the supposed certificate of marriage
between Allan F. Poe and Paulita Gomez could be most
doubtful at best. But the documentary evidence introduced by
no less than respondent himself, consisting of a birth
certificate of respondent and a marriage certificate of his
parents showed that FPJ was born on 20 August 1939 to a
Filipino father and an American mother who were married to
each other a year later, or on 16 September 1940. Birth to
unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so
followed the citizenship of his mother, Bessie Kelley, an
American citizen, basing his stand on the ruling of this Court
in Morano vs. Vivo, citing Chiongbian vs. de Leon and Serra
vs. Republic.
We must analyze these cases and ask what the lis mota was in
each of them. If the pronouncement of the Court on jus
sanguinis was on the lis mota, the pronouncement would be a
decision constituting doctrine under the rule of stare
decisis. But if the pronouncement was irrelevant to the lis
mota, the pronouncement would not be a decision but a
mere obiter dictum which did not establish doctrine. I
therefore invite the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate
child of a Filipino father. It was about a stepson of a Filipino,
a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed

Page 11
the naturalization of the stepfather. Nothing about jus

sanguinis there. The stepson did not have the blood of the
naturalized stepfather.
of respondent FPJ. The 1935 Constitution, during which

regime respondent FPJ has seen first light, confers citizenship
to all persons whose fathers are Filipino citizens regardless of
whether such children are legitimate or illegitimate.
Second, Chiongbian vs. de Leon. This case was not about the
illegitimate son of a Filipino father. It was about a legitimate
son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV,
Section 1(2) of the 1935 Constitution. No one was illegitimate
here.
(4) But while the totality of the evidence may not

establish conclusively that respondent FPJ is a natural-born
citizen of the Philippines, the evidence on hand still would
preponderate in his favor enough to hold that he cannot be
held guilty of having made a material misrepresentation in his
certificate of candidacy in violation of Section 78, in relation
to Section 74, of the Omnibus Election Code. Petitioner has
utterly failed to substantiate his case before the Court,
notwithstanding the ample opportunity given to the parties to
present their position and evidence, and to prove whether or
not there has been material misrepresentation, which, as so
ruled in Romualdez-Marcos vs. COMELEC,[48] must not only
be material, but also deliberate and willful.
Third, Serra vs. Republic. The case was not about the
illegitimate son of a Filipino father. Serra was an illegitimate
child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother
who still needed to be naturalized. There is nothing there
about invidious jus sanguinis.
WHEREFORE, the Court RESOLVES to DISMISS.

In Sum
(1) The Court, in the exercise of its power of judicial
review, possesses jurisdiction over the petition in G. R. No.
161824, filed under Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of
discretion in dismissing, for lack of merit, the petition in SPA
No. 04-003 which has prayed for the disqualification of
respondent FPJ from running for the position of President in
the 10th May 2004 national elections on the contention that
FPJ has committed material representation in his certificate of
candidacy by representing himself to be a natural-born citizen
of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and
prematurity, the petitions in G. R. No. 161434 and No. 161634
both having been directly elevated to this Court in the latters
capacity as the only tribunal to resolve a presidential and vicepresidential election contest under the Constitution. Evidently,
the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave
abuse of discretion has been committed by the COMELEC, it
is necessary to take on the matter of whether or not respondent
FPJ is a natural-born citizen, which, in turn, depended on
whether or not the father of respondent, Allan F. Poe, would
have himself been a Filipino citizen and, in the affirmative,
whether or not the alleged illegitimacy of respondent prevents
him from taking after the Filipino citizenship of his putative
father. Any conclusion on the Filipino citizenship of Lorenzo
Pou could only be drawn from the presumption that having
died in 1954 at 84 years old, Lorenzo would have been born
sometime in the year 1870, when the Philippines was under
Spanish rule, and that San Carlos, Pangasinan, his place of
residence upon his death in 1954, in the absence of any other
evidence, could have well been his place of residence before
death, such that Lorenzo Pou would have benefited from
the en masse Filipinization that the Philippine Bill had
effected in 1902. That citizenship (of Lorenzo Pou), if
acquired, would thereby extend to his son, Allan F. Poe, father
KILOSBAYAN FOUNDATION VS. ERMITA G.R. NO.

177721. JULY 3, 2007.
Citizenship;
Natural-Born
Citizens;
The
alleged
subsequent recognition of a persons naturalborn status
by the Bureau of Immigration and the Department of
Justice cannot amend the final decision of the trial court
stating such individual and his mother
were naturalized along with his father. It is clear, therefore,
that from the records of this Court, respondent Ong is a
naturalized Filipino citizen.
The alleged
subsequent
recognition of his natural- born status by the Bureau of
Immigration and the DOJ cannot amend the final decision
of the trial court stating that respondent Ong and his mother
were naturalized along with his father.
FACTS: Respondent Executive Secretary, in representation
of the Office of the President, announced an appointment in
favor of respondent Gregory S. Ong as Associate Justice of
the Supreme Court to fill up the vacancy created by the
retirement on April 28, 2007 of Associate Justice Romeo J.
Callejo, Sr. The appointment was reported by the major daily
publications, that the appointment was recalled or held in
abeyance by Malacaang in view of the question relating
to the citizenship of respondent Gregory S. Ong. There is no
indication whatever the appointment has been cancelled by the
Office of the President. Executive Secretary stated that the
appointment is still there except that the validation of the
issue is being done by the Judicial and Bar Council (JBC).
Petitioners contend that the appointment extended to
respondent Ong through respondent Executive Secretary is
patently unconstitutional, arbitrary, whimsical and issued
with grave abuse of discretion amounting to lack of
jurisdiction. Petitioners claim that respondent Ong is a
Chinese citizen, that this fact is plain and incontestable, and
that his own birth certificate indicates his Chinese
citizenship which reveals that at the time of respondent
Ongs birth on May 25, 1953, his father was Chinese and
his mother was also Chinese.
Petitioners inv oke the Constitution:

Page 12
Section 7 (1) of Article VIII of the 1987 Constitution

provides that No person shall be appointed Member of the
Supreme Court or any lower collegiate court unless he is a
natural-born citizen of the Philippines. Sec. 2 of Art. IV
defines natural-born citizens as those who are citizens of
the Philippines from birth without having to perform any
act to acquire or perfect their Philippine Citizenship.
Petitioners maintain that even if it were granted that
eleven years after respondent Ongs birth his father was
finally granted Filipino citizenship by naturalization, that, by
itself, would not make respondent Ong a natural-born
Filipino citizen.
They also invoke Article 410 of the Civil Code which provides
that the books making up the civil register and all
documents relating thereto x x x shall be prima facie evidence
of the facts therein contained. Therefore, the entry in Ongs
birth certificate indicating his nationality as Chinese is prima
facie evidence of the fact that Ongs citizenship at birth is
Chinese
Article 412 of the Civil Code also provides that No entry
in a civil register shall be changed or corrected without a
judicial order. Thus, as long as Ongs birth certificate is not
changed by a judicial order, the Judicial & Bar Council, as
well as the whole world, is bound by what is stated in his
birth certificate.
This birth certificate, petitioners assert, prevails over
respondent Ongs new Identification Certificate issued by
the Bureau of Immigration, stating that he is a natural-born
Filipino and over the opinion of then Secretary of Justice
Teofisto Guingona that he is a naturalborn Filipino. They
maintain that the Department of Justice (DOJ) does not
have the power or authority to alter entries in a birth
certificate; that respondent Ongs old Identification Certificate
did not declare that he is a natural-born Filipino; and that
respondent Ong s remedy is an action to correct his citizenship
as it appears in his birth certificate. Subsequently, on May 24,
2007, petitioners filed an Urgent Motion for the Issuance of a
Temporary Restraining Order (TRO), praying that a TRO be
issued, in accordance with the Rules of Court, to prevent and
restrain respondent Executive Secretary from releasing the
appointment of respondent Ong, and to prevent and restrain
respondent Ong from assuming the office and discharging the
functions of Associate Justice of this Court. Respondent
Executive Secretary in his Comment, states that the
appointment of respondent Ong as Associate Justice of this
Court on May 16, 2007 was made by the President pursuant to
the powers vested in her by Article VIII, Section 9 of the
Constitution, thus:
SEC. 9. The Members of the Supreme Court and Judges of
lower courts shall be appointed by the President from a list
of at least three nominees prepared by the Judicial and
Bar Council for every vacancy. Such appointments need
no confirmation.
Respondent Executive Secretary added that the President

appointed respondent Ong from among the list of nominees
who were duly screened by and bore the imprimatur of the
JBC created under Article VIII, Section 8 of the Constitution.
Said respondent further stated: "The appointment, however,
was not released, but instead, referred to the JBC for
validation of respondent Ongs citizenship." To date, however,
the JBC has not received the referral.
As to his citizenship, respondent Ong traces his ancestral lines
to one Maria Santos of Malolos, Bulacan, born on November
25, 1881, who was allegedly a Filipino citizen who married
Chan Kin, a Chinese citizen; that these two had a son, Juan
Santos; that in 1906 Chan Kin died in China, as a result of
which Maria Santos reverted to her Filipino citizenship; that at
that time Juan Santos was a minor; that Juan Santos thereby
also became a Filipino citizen; that respondent Ongs mother,
Dy Guiok Santos, is the daughter of the spouses Juan Santos
and Sy Siok Hian, a Chinese citizen, who were married in
1927; that, therefore, respondents mother was a Filipino
citizen at birth; that Dy Guiok Santos later married a Chinese
citizen, Eugenio Ong Han Seng, thereby becoming a Chinese
citizen; that when respondent Ong was eleven years old his
father, Eugenio Ong Han Seng, was naturalized, and as a
result he, his brothers and sisters, and his mother were
included in the naturalization.
Respondent Ong subsequently obtained from the Bureau of
Immigration and the DOJ a certification and an identification
that he is a natural-born Filipino citizen under Article IV,
Sections 1 and 2 of the Constitution, since his mother was a
Filipino citizen when he was born.
ISSUE: WON Ong is a natural born Filipino Citizen.
HELD: On this point, the Court takes judicial notice of the
records of respondent Ongs petition to be admitted to the
Philippine bar. In his petition to be admitted to the Philippine
bar, docketed as B.E. No. 1398-N filed on September 14,
1979, under O.R. No. 8131205 of that date, respondent Ong
alleged that he is qualified to be admitted to the Philippine
bar because, among others, he is a Filipino citizen; and that
he is a Filipino citizen because his father, Eugenio Ong
Han Seng, a Chinese citizen, was naturalized in 1964 when
he, respondent Ong, was a minor of eleven years and thus
he, too, thereby became a Filipino citizen. As part of his
evidence, in support of his petition, be submitted his birth
certificate and the naturalization papers of his father. His
birth certificate states that he was a Chinese citizen at
birth and that his mother, Dy Guiok Santos, was a Chinese
citizen and his father, Eugenio Ong Han Seng, was also a
Chinese citizen. In fact, Emilio R. Rebueno, Deputy Clerk of
Court and Bar Confidant, wrote respondent Ong a letter dated
October 3, 1979 stating that in connection with his Petition for
Admission to the 1979 Bar Examinations, he has to submit:
1) A certified clear copy of his Birth Certificate; and
2) A certification of non-appeal re his citizenship from the
Office of the Solicitor General.

Page 13
Respondent Ong complied with these requirements. It was on

the basis of these allegations under oath and the submitted
evidence of naturalization that this Court allowed respondent
Ong to take the oath as a lawyer. It is clear, therefore, that
from the records of this Court, respondent Ong is a naturalized
Filipino citizen. The alleged subsequent recognition of his
natural-born status by the Bureau of Immigration and the DOJ
cannot amend the final decision of the trial court stating that
respondent Ong and his mother were naturalized along with
his father. Furthermore, as petitioners correctly submit, no
substantial change or correction in an entry in a civil register
can be made without a judicial order, and, under the law, a
change in citizenship status is a substantial change.
In Labayo-Rowe v. Republic, this Court held that:
Changes which affect the civil status or citizenship of a party
are substantial in character and should be threshed out in a
proper action depending upon the nature of the issues in
controversy, and wherein all the parties who may be affected
by the entries are notified or represented and evidence is
submitted to prove the allegations of the complaint, and proof
to the contrary admitted.
Republic Act No. 9048 provides in Section 2 (3) that a
summary administrative proceeding to correct clerical or
typographical errors in a birth certificate cannot apply to a
change in nationality. Substantial corrections to the
nationality or citizenship of persons recorded in the civil
registry should, therefore, be effected through a petition filed
in court under Rule 108 of the Rules of Court.
The series of events and long string of alleged changes in the
nationalities of respondent Ongs ancestors, by various births,
marriages and deaths, all entail factual assertions that need to
be threshed out in proper judicial proceedings so as to correct
the existing records on his birth and citizenship. The chain of
evidence would have to show that Dy Guiok Santos,
respondent Ongs mother, was a Filipino citizen, contrary to
what still appears in the records of this Court. Respondent Ong
has the burden of proving in court his alleged ancestral tree as
well as his citizenship under the time-line of three
Constitutions. Until this is done, respondent Ong cannot
accept an appointment to this Court as that would be a
violation of the Constitution. For this reason, he can be
prevented by injunction from doing so.
WHEREFORE, the petition is GRANTED as one of
injunction directed against respondent Gregory S. Ong, who is
hereby ENJOINED from accepting an appointment to the
position of Associate Justice of the Supreme Court or
assuming the position and discharging the functions of that
office, until he shall have successfully completed all necessary
steps, through the appropriate adversarial proceedings in court,
to show that he is a natural-born Filipino citizen and correct
the records of his birth and citizenship.
CIRILO R. VALLES vs. COMMISSION ON
ELECTIONS and ROSALIND YBASCO LOPEZ. 337
SCRA 543
FACTS: Rosalind Ybasco Lopez was born on May 16, 1934

in Napier Terrace, Broome, Western Australia, to the spouses,
Telesforo Ybasco, a Filipino citizen and native of Daet,
Camarines Norte, and Theresa Marquez, an Australian. In
1949, at the age of fifteen, she left Australia and came to settle
in the Philippines. On June 27, 1952, she was married to
Leopoldo Lopez, a Filipino citizen, at the Malate Catholic
Church in Manila. Since then, she has continuously
participated in the electoral process not only as a voter but as a
candidate, as well.She served as Provincial Board Member of
the Sangguniang Panlalawigan of Davao Oriental. In 1992,
she ran for and was elected governor of Davao Oriental. Her
election was contested by her opponent, Gil Taojo, Jr., in a
petition for quo warranto, docketed as EPC No. 9254, alleging
as ground therefor her alleged Australian citizenship.
However, finding no sufficient proof that respondent had
renounced her Philippine citizenship, the Commission on
Elections en banc dismissed the petition.
In the 1995 local elections, respondent Rosalind Ybasco
Lopez ran for reelection as governor of Davao Oriental. Her
opponent, Francisco Rabat, filed a petition for disqualification,
docketed as SPA No. 95066 before the COMELEC, First
Division, contesting her Filipino citizenship but the said
petition was likewise dismissed by the COMELEC, reiterating
substantially its decision in EPC 9254.
The citizenship of private respondent was once again
raised as an issue when she ran for reelection as governor of
Davao Oriental in the May 11, 1998 elections. Her candidacy
was questioned by the herein petitioner, Cirilo Valles, in SPA
No. 98336. On July 17, 1998, the COMELECs First Division
came out with a Resolution dismissing the petition.
Petitioner interposed a motion for reconsideration of the
aforesaid Resolution but to no avail. The same was denied by
the COMELEC in its en banc Resolution of January 15, 1999.
ISSUE: WON Rosalind Lopez is qualified to run for public
office.
HELD: YES. The Philippine law on citizenship adheres to the
principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the place
of his/her birth, as opposed to the doctrine of jus soli which
determines nationality or citizenship on the basis of place of
birth. Private respondent Rosalind Ybasco Lopez was born on
May 16, 1934 in Napier Terrace, Broome, Western Australia,
to the spouses, Telesforo Ybasco, a Filipino citizen and native
of Daet, Camarines Norte, and Theresa Marquez, an
Australian. Historically, this was a year before the 1935
Constitution took into effect and at that time, what served as
the Constitution of the Philippines were the principal organic
acts by which the United States governed the country. These
were the Philippine Bill of July 1, 1902 and the Philippine
Autonomy Act of August 29, 1916, also known as the Jones
Law. Under both organic acts, all inhabitants of the
Philippines who were Spanish subjects on April 11, 1899 and
resided therein including their children are deemed to be
Philippine citizens. Private respondents father, Telesforo
Ybasco, was born on January 5, 1879 in Daet, Camarines
Norte, a fact duly evidenced by a certified true copy of an
entry in the Registry of Births. Thus, under the Philippine Bill

Page 14
of 1902 and the Jones Law, Telesforo Ybasco was deemed to

be a Philippine citizen. By virtue of the same laws, which
were the laws in force at the time of her birth, Telesforos
daughter, herein private respondent Rosalind Ybasco Lopez, is
likewise a citizen of the Philippines.
So also, the principle of jus sanguinis, which confers
citizenship by virtue of blood relationship, was subsequently
retained under the 19734 and 19875 Constitutions. Thus, the
herein private respondent, Rosalind Ybasco Lopez, is a
Filipino citizen, having been born to a Filipino father. The fact
of her being born in Australia is not tantamount to her losing
her Philippine citizenship. If Australia follows the principle of
jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual
citizenship.
WHEREFORE, the petition is hereby DISMISSED and
the COMELEC Resolutions, dated July 17, 1998 and January
15, 1999, respectively, in SPA No. 98336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged
qualified to run for governor of Davao Oriental. No
pronouncement as to costs. SO ORDERED.
IN RE PETITION TO DECLARE ZLTA NGO TO
POSSESS ALL QUALIFICATIONS AND NONE OF
THE DISQUALIFICATIONS FOR NATURALIZATION
UNDER COMMONWEALTH ACT 473 FOR THE
PURPOSE OF CANCELLING HER ALIEN REGISTRY
WITH THE BUREAU OF IMMIGRATION. ZITA NGO
BURCA, PETITIONER AND APPELLEE, VS.
REPUBLIC OF THE PHILIPPINES, OPPOSITOR AND
APPELLANT.
Citizenship Alien woman who marries a Filipino citizen
becomes a Filipino citizen upon proof that she may lawfully be
naturalized.By constitutional and legal precepts, an alien
woman who marries a Filipino citizen, does notby the mere
fact of marriageautomatically become a Filipino citizen.
Jurisprudence has since stabilized the import of the
constitutional and statutory precepts with a uniform
pronouncement that an alien wife of a Filipino citizen may not
acquire the status of a citizen of the Philippines, unless there is
proof that she herself may be lawfully naturalized. This means
that, in line with the national policy of selective admission to
Philippine citizenship. the wife must possess the qualifications
under Section 2, and must not be laboring under any of the
disqualifications enumerated in Section 4 of the Revised
Naturalization Law. Same Reason for rule.Reflection will
reveal why this must be so. The qualifications prescribed
under section 2 of the Naturalization Act, and the
disqualifications enumerated in its section 4, are not mutually
exclusive; and if all that were to be required is that the wife of
a Filipino be not disqualified under Section 4, the result might
well be that citizenship would be conferred upon persons in
violation of the policy of the statute (Ly Giok Ha vs. Galang,
L21332,March 18, 1966).
Same Alien woman must file a petition for citizenship to
acquire Philippine citizenship.If an alien woman married to
a Filipino does not become ipso facto a citizen, then she must
have to file a petition for citizenship in order that she may
acquire the status of a Filipino citizen. Authority for this view

is Section 7 of the Revised Naturalization Law which provides
that any person desiring to acquire Philippine citizenship,
shall file with the competent court a petition for the purpose.
This is so because the wife e is an alien and she desires to
acquire Philippine citizenship. According to section 8 of the
same law, the proper forum is the Court of First Instance of
the province where the petitioner has resided at least one year
immediately preceding the filing of the petition.
FACTS: On petition to declare Zita Ngoalso known as Zita
Ngo Burcaas possessing all qualifications and none of the
disqualifications for naturalization under Commonwealth Act
473 for the purpose of cancelling her Alien Registry with the
Bureau of Immigration". She avers that she is of legal age,
married to Florencio Burca, a Filipino citizen, and a resident
of Real St., Ormoc City; that before her marriage, she was a
Chinese citizen, subject of Nationalist China, with ACR No.
A148054; that she was born on March 30, 1933 in Gigaquit,
Surigao, and holder of Native Born Certificate of Residence
No. 46333.
The Solicitor General opposed and moved to dismiss
the petition on two main grounds, viz: (1) that there is no
proceeding established by law, or the rules for the judicial
declaration of the citizenship of an individual; and (2) that as
an application for Philippine citizenship, the petition is fatally
defective for failure to contain or mention the essential
allegations required under Section 7 of the Naturalization
Law, such as, among others, petitioners former places of
residence, and the absence of the affidavits of at least two
supporting witnesses.
Trial was held on December 18, 1964. Sole witness
was petitioner. With the documentary evidence admitted, the
case was submitted for decision. The decision is hereby
rendered dismissing the opposition, and declaring that ZITA
NGO BURCA, petitioner, has all the qualifications and none
of the disqualifications to become a Filipino Citizen and that
she being married to a Filipino Citizen, is hereby declared a
citizen of the Philippines, after taking the necessary oath of
allegiance, as soon as this decision becomes final and
executory.
ISSUE: WON an alien woman who marries a Filipino citizen
may automatically become a Filipino citizen.
HELD: By constitutional and legal precepts, an alien woman
who marries a Filipino citizen, does notby the mere fact of
marriageautomatically become a Filipino citizen. Thus, by
Article IV of the Constitution, citizenship is limited to: 1.
Those who are citizens of the Philippine Islands at the time of
the adoption of this Constitution. 2. Those born in the
Philippine Islands of foreign parents who, before the adoption
of this Constitution, had been elected to public office in the
Philippine Islands. 3. Those whose fathers are citizens of the
Philippines. 4. Those whose mothers are citizens of the
Philippines and, upon reaching the age of majority, elect
Philippine citizenship. 5. Those who are naturalized in
accordance with law. Jurisprudence has since stabilized the
import of the constitutional and statutory precepts just quoted
with a uniform pronouncement that an alien wife of a Filipino

Page 15
citizen may not acquire the status of a citizen of the

Philippines unless there is proof that she herself may be
lawfully naturalized. Which means that, in line with the
national policy of selective admission to Philippine
citizenship, the wife must possess the qualifications under
Section 2, and must not be laboring under any of the
disqualifications enumerated in Section 4, of the Revised
Naturalization Law. We part from the premise that such an
alien woman does not, by the fact of marriage, acquire
Philippine citizenship. The statute heretofore quoted (Sec. 15,
Revised Naturalization Law), we repeat, recites that she shall
be deemed a citizen of the Philippines if she might herself
be lawfully naturalized. There is no law or rule which
authorizes a declaration of Filipino citizenship. Citizenship is
not an appropriate subject for declaratory judgment
proceeding. And in one case, we held that citizenship of an
alien woman married to a Filipino must be determined in an
appropriate proceeding". If an alien woman married to a
Filipino does not become ipso facto a citizen, then she must
have to file a petition for citizenship in order that she may
acquire the status of a Filipino citizen. Authority for this view
is Section 7 of the Revised Naturalization Law in which the
plain language is: Any person desiring to acquire Philippine
citizenship, shall file with the competent court a petition for
the purpose. And this, because such alien woman is not a
citizen, and she desires to acquire it. The proper forum,
Section 8 of the same law points out, is the Court of First
Instance of the province where the petitioner has resided at
least one year immediately preceding the filing of the
petition.
We accordingly rule that: (1) An alien woman
married to a Filipino who desires to be a citizen of this country
must apply therefor by filing a petition for citizenship reciting
that she possesses all the qualifications set forth in Section 2,
and none of the disqualifications under Section 4, both of the
Revised Naturalization Law; (2) Said petition must be f iled in
the Court of First Instance where petitioner has resided at least
one year immediately preceding the filing of the petition; and
(3) Any action by any other office, agency, board or official,
administrative or otherwiseother than the judgment of a
competent court of justicecertifying or declaring that an
alien wife of the Filipino citizen is also a Filipino citizen, is
hereby declared null and void.
Viewed from another direction, we find one other
flaw in petitioners petition. Said petition is not supported by
the affidavit of at least two credible persons, stating that they
are citizens of the Philippines and personally know the
petitioner to be a resident of the Philippines for the period of
time required by this Act and a person of good repute and
morally irreproachable, and that said petitioner has in their
opinion all the qualifications necessary to become a citizen of
the Philippines and is not in any way disqualified under the
provisions of this Act. Petitioner likewise failed to set forth
the names and post office addresses of such witnesses as the
petitioner may desire to introduce at the hearing of the case".
The necessity for the affidavit of two witnesses cannot be
overlooked. Here, the case was submitted solely on the
testimony of the petitioner. No other witnesses were
presented. This does not meet with the legal requirement.
Upon the view we take of his case, the judgment appealed
from is hereby reversed and the petition dismissed, without
costs. So ordered.
BENGSON VS. HRET G.R. NO. 142840

FACTS:
The citizenship of respondent Cruz is at issue in this case, in
view of the constitutional requirement that no person shall be
a Member of the House of Representatives unless he is a
natural-born citizen.
Cruz was a natural-born citizen of the Philippines. He was
born in Tarlac in 1960 of Filipino parents. In 1985, however,
Cruz enlisted in the US Marine Corps and without the consent
of the Republic of the Philippines, took an oath of allegiance
to the USA. As a Consequence, he lost his Filipino citizenship
for under CA No. 63 [(An Act Providing for the Ways in
Which Philippine Citizenship May Be Lost or Reacquired
(1936)] section 1(4), a Filipino citizen may lose his citizenship
by, among other, rendering service to or accepting
commission in the armed forces of a foreign country.
Cruz reacquired his Philippine citizenship through repatriation

under RA 2630 [(An Act Providing for Reacquisition of
Philippine Citizenship by Persons Who Lost Such Citizenship
by Rendering Service To, or Accepting Commission In, the
Armed Forces of the United States (1960)]. He ran for and
was elected as the Representative of the 2nd District of
Pangasinan. He won over petitioner Bengson who was then
running for reelection.
Subsequently, petitioner filed a case for Quo Warranto Ad

Cautelam with respondent HRET claiming that Cruz was not
qualified to become a member of the HOR since he is not a
natural-born citizen as required under Article VI, section 6 of
the
Constitution.
HRET rendered its decision dismissing the petition for quo
warranto and declaring Cruz the duly elected Representative
in the said election.
ISSUE: Whether or not Cruz can still be considered a naturalborn Filipino upon his reacquisition of Philippine citizenship.
HELD: Yes, Filipino citizens who have lost their citizenship
may however reacquire the same in the manner provided by
law. C.A. No. 63 enumerates the 3 modes by which Philippine
citizenship may be reacquired by a former citizen:
1. by naturalization,
2. by repatriation, and
3. by direct act of Congress.
Repatriation may be had under various statutes by those who

lost their citizenship due to:
1. desertion of the armed forces;
2. services in the armed forces of the allied forces in World
War II;
3. service in the Armed Forces of the United States at any
other time,

Page 16
4. marriage of a Filipino woman to an alien; and

5. political economic necessity
Repatriation results in the recovery of the original nationality
This means that a naturalized Filipino who lost his citizenship
will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born
citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.
R.A.
No.
2630
provides:
Sec 1. Any person who had lost his Philippine citizenship by
rendering service to, or accepting commission in, the Armed
Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an
oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place
where he resides or last resided in the Philippines. The said
oath of allegiance shall contain a renunciation of any other
citizenship.
Having thus taken the required oath of allegiance to the

Republic and having registered the same in the Civil Registry
of Magantarem, Pangasinan in accordance with the aforecited
provision, Cruz is deemed to have recovered his original status
as a natural-born citizen, a status which he acquired at birth as
the son of a Filipino father. It bears stressing that the act of
repatriation allows him to recover, or return to, his original
status before he lost his Philippine citizenship.
RE: APPLICATION FOR ADMISSION TO

PHILIPPINE BAR. VICENTE D. CHING
THE
FACTS: Vicente D. Ching, the legitimate son of the spouses

Tat Ching, a Chinese citizen, and Prescila A. Dulay, a
Filipino, was born in Francia West, Tubao, La Union on 11
April 1964. Since his birth, Ching has resided in the
Philippines. Ching, after having completed a Bachelor of
Laws course at the St. Louis University in Baguio City, filed
an application to take the 1998 Bar Examinations. In a
Resolution of this Court, dated 1 September 1998, he was
allowed to take the Bar Examinations, subject to the condition
that he must submit to the Court proof of his Philippine
citizenship. Ching submitted: 1. Certificate that he is a
Certified public accountant; 2. Voter Certification 3. Member
of the Sangguniang Bayan of Tubao, La Union The results of
the 1998 Bar Examinations were released and Ching was one
of the successful Bar examinees. The oathtaking of the
successful Bar examinees was scheduled on 5 May 1999.
However, because of the questionable status of Chings
citizenship, he was not allowed to take his oath. Pursuant to
the resolution. he was required to submit further proof of his
citizenship. The Office of the Solicitor General (OSG) was
required to file a comment on Chings petition for admission
to the bar and on the documents evidencing his Philippine
citizenship. OSG filed its comment, stating that Ching, being
the legitimate child of a Chinese father and a Filipino mother
born under the 1935 Constitution was a Chinese citizen and

continued to be so, unless upon reaching the age of majority
he elected Philippine citizenship The OSG adds that (w)hat
he acquired at best was only an inchoate Philippine citizenship
which he could perfect by election upon reaching the age of
majority.2 In this regard, the OSG clarifies that two (2)
conditions must concur in order that the election of Philippine
citizenship may be effective, namely: (a) the mother of the
person making the election must be a citizen of the
Philippines; and (b) said election must be made upon
reaching the age of majority. The OSG then explains the
meaning of the phrase upon reaching the age of majority:
The clause upon reaching the age of majority has been
construed to mean a reasonable time after reaching the age of
majority which had been interpreted by the Secretary of
Justice to be three (3) years In conclusion, the OSG points out
that Ching has not formally elected Philippine citizenship and,
if ever he does, it would already be beyond the reasonable
time allowed by present jurisprudence. However, due to the
peculiar circumstances surrounding Chings case, the OSG
recommends the relaxation of the standing rule on the
construction of the phrase reasonable period and the
allowance of Ching to elect Philippine citizenship Ching filed
a Manifestation, attaching therewith his Affidavit of Election
of Philippine Citizenship and his Oath of Allegiance
ISSUE: Can a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father validly
elect Philippine citizenship fourteen (14) years after he has
reached the age of majority?
HELD: When Ching was born in 1964, the governing charter
was the 1935 Constitution. Under Article IV, Section 1(3) of
the 1935 Constitution, the citizenship of a legitimate child
born of a Filipino mother and an alien father followed the
citizenship of the father, unless, upon reaching the age of
majority, the child elected Philippine citizenship. This right to
elect Philippine citizenship was recognized in the 1973
Constitution when it provided that (t)hose who elect
Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirtyfive are citizens of
the Philippines. Likewise, this recognition by the 1973
Constitution was carried over to the 1987 Constitution which
states that (t)hose born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon reaching the
age of majority are Philippine citizens. It should be noted,
however, that the 1973 and 1987 Constitutional provisions on
the election of Philippine citizenship should not be understood
as having a curative effect on any irregularity in the
acquisition of citizenship for those covered by the 1935
Constitution. If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge
under the new charter even if the judicial challenge had not
been commenced before the effectively of the new
Constitution. C.A. No. 625 which was enacted pursuant to
Section 1(3), Article IV of the 1935 Constitution, prescribes
the procedure that should be followed in order to make a valid
election of Philippine citizenship. Under Section 1 thereof,
legitimate children born of Filipino mothers may elect
Philippine citizenship by expressing such intention in a
statement to be signed and sworn to by the party concerned
before any officer authorized to administer oaths, and shall be

Page 17
filed with the nearest civil registry. The said party shall
accompany the aforesaid statement with the oath of allegiance
to the Constitution and the Government of the Philippines.
However, the 1935 Constitution and C.A. No. 625 did not
prescribe a time period within which the election of Philippine
citizenship should be made. The 1935 Charter only provides
that the election should be made upon reaching the age of
majority. The age of majority then commenced upon
reaching twentyone (21) years. On cases involving the validity
of election of Philippine citizenship, this dilemma was
resolved by basing the time period on the decisions of this
Court prior to the effectivity of the 1935 Constitution. In these
decisions, the proper period for electing Philippine citizenship
was, in turn, based on the pronouncements of the Department
of State of the United States Government to the effect that the
election should be made within a reasonable time after
attaining the age of majority.10 The phrase reasonable time
has been interpreted to mean that the election should be made
within three (3) years from reaching the age of majority.
However, we cautioned in Cuenco that the extension of the
option to elect Philippine citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on February
16, 1923. He became of age on February 16, 1944. His
election of citizenship was made on May 15, 1951, when he
was over twentyeight (28) years of age, or over seven (7)
years after he had reached the age of majority. It is clear that
said election has not been made upon reaching the age of
majority. In the present case, Ching, having been born on 11
April 1964, was already thirtyfive (35) years old when he
complied with the requirements of C.A. No. 625 on 15 June
1999, or over fourteen (14) years after he had reached the age
of majority. Based on the interpretation of the phrase upon
reaching the age of majority, Chings election was clearly
beyond, by any reasonable yardstick, the allowable period
within which to exercise the privilege. It should be stated, in
this connection, that the special circumstances invoked by
Ching, i.e., his continuous and uninterrupted stay in the
Philippines and his being a certified public accountant, a
registered voter and a former elected public official, cannot
vest in him Philippine citizenship as the law specifically lays
down the requirements for acquisition of Philippine
citizenship by election. Definitely, the socalled special
circumstances cannot constitute what Ching erroneously labels
as informal election of citizenship. The filing of sworn
statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when
the time to elect came up, there are acts of deliberate choice
which cannot be less binding. Entering a profession open only
to Filipinos, serving in public office where citizenship is a
qualification, voting during election time, running for public
office, and other categorical acts of similar nature are
themselves formal manifestations for these persons. An
election of Philippine citizenship presupposes that the person
electing is an alien. Or his status is doubtful because he is a
national of two countries. There is no doubt in this case about
Mr. Ongs being a Filipino when he turned twentyone (21).
We repeat that any election of Philippine citizenship on the
part of the private respondent would not only have been
superfluous but it would also have resulted in an absurdity.
However, even if we consider the special circumstances in the
life of Ching like his having lived in the Philippines all his life
and his consistent belief that he is a Filipino, controlling
statutes and jurisprudence constrain us to disagree with the

recommendation of the OSG. Consequently, we hold that
Ching failed to validly elect Philippine citizenship. The span
of fourteen (14) years that lapsed from the time he reached the
age of majority until he finally expressed his intention to elect
Philippine citizenship is clearly way beyond the contemplation
of the requirement of electing upon reaching the age of
majority. Moreover, Ching has offered no reason why he
delayed his election of Philippine citizenship. The prescribed
procedure in electing Philippine citizenship is certainly not a
tedious and painstaking process. All that is required of the
elector is to execute an affidavit of election of Philippine
citizenship and, thereafter, file the same with the nearest civil
registry. Chings unreasonable and unexplained delay in
making his election cannot be simply glossed over. IN VIEW
OF THE FOREGOING, the Court Resolves to DENY Vicente
D. Chings application for admission to the Philippine Bar.
DJUMANTAN V.
JANUARY 30, 1995
DOMINGO
G.R.
NO.
99358.
FACTS: Bernard Banez, the husband of Marina Cabael, went

to Indonesia as a contract worker. On April 3, 1974, he
embraced and was converted to Islam. On May 17, 1974, he
married petitioner in accordance with Islamic rites. He
returned to the Philippines in January 1979. On January 13,
1979, petitioner and her two children with Banez, (two year
old Marina and nine month
Old Nikulas) arrived in Manila as the guests of Banez. The
latter made it appear that he was just a friend of the family of
petitioner and was merely repaying the hospitality extended to
him during his stay in Indonesia.
When petitioner and her two children arrived at the Ninoy
Aquino International Airport on January 13, 1979, Banez,
together with Marina Cabael, met them. Banez executed an
Affidavit of Guaranty and Support,
for his guests,
As guests, petitioner and her two children lived in the house
of Banez.
Petitioner and her children were admitted to the Philippines as
temporary visitors under Section 9(a) of theImmigration Act
of 1940.
In 1981, Marina Cabael discovered the true relationship of her
husband and petitioner. She filed a complaint for
concubinage with the Municipal Trial Court of Urdaneta,
Pangasinan against the two. This case was, however,
dismissed for lack of merit.
On March 25, 1982, the immigration status of petitioner was
changed from temporary visitor to that of permanent resident.
On April 14,1982, petitioner was issued an alien certificate of
registration. Not accepting the setback, Banez eldest son,
Leonardo, filed a letter complaint with the Ombudsman, who
subsequently referred the letter to the CID. On the basis of the
said letter, petitioner was detained at the CID detention cell.
She was later released pending the deportation proceedings.
Thereafter, she manifested to the CID that she be allowed to
depart voluntarily from the Philippines and asked for time to
purchase her airline ticket. However, she had a change of heart
and moved for the dismissal of the deportation case on the
ground that she was validly married to a Filipino citizen.

Page 18
ISSUE: WON Marriage of an alien woman to a Filipino

husband makes her
a Filipino citizen.
HELD: No.
There is no law guaranteeing aliens married to Filipino
citizens the right to be admitted, much less to be given
permanent residency, in the Philippines.
The fact of marriage by an alien to a citizen does not withdraw
her from the operation of the immigration laws governing the
admission and exclusion of aliens (United States ex rel.
Knauff v. Shaughnessy, 338 US 537 94) Marriage of an alien
woman to a Filipino husband does not ipso facto make her a
Filipino citizen and does not excuse her from her failure to
depart from the country upon the expiration of her extended
stay here as an alien (Joaquin v.Galang, 33 SCRA 362
[1970]).
Under Section 9 of the Immigration Act of 1940, it is not
mandatory for the CID to admit any alien who applies for a
visitors visa. Once admitted into the country, the alien has no
right to an indefinite stay. Under Section 13 of the law, an
alien allowed to stay temporarily may apply for a change of
status and may be admitted as a permanent resident. Among
those considered qualified to apply for permanent residency is
the wife or husband of a Philippine citizen (Immigration Act
of 1940, Sec. 13[a]). The entry of aliens into the country and
their admission as immigrants is not a matter of right, even if
they are legally married to Filipino citizens.
ERNESTO MERCADO VS EDUARDO MANZANO

G.R.NO. 135083, MAY 26, 1999
FACTS: Mercado and Manzano were candidate for vice
mayor of city of Makati in May 11, 1998 elections. The
proclamation of private respondent was not a citizen of the
Philippines but of U.S. 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 dual citizen and under 40(d) of the LGC,
persons with dual citizenship are disqualified from running for
any elective position. Private respondent filed a motion for
reconsideration. Petitioner sought to intervene in the case for
disqualification. The motion was not resolved. Instead the
COMELEC enbanc reversed the ruling of its second division
and declared private respondent qualified to run for vice
mayor in the city of Makati in May 11, 1998 elections.
Pursuant to the resolution of the COMELEC enbanc, the board
of canvassers, proclaimed private respondent as vice mayor of
the city of Makati.
ISSUE: WON Manzano is a Filipino citizen
HELD: 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 of jus
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.
In holding that by voting in Philippine elections private
respondent renounced his American citizenship, the
COMELEC must have in mind 349 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 naturalization, shall lose his nationality by: . . . (e) Voting
in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign
territory. To be sure this provision was declared
unconstitutional by the U.S. Supreme Court in Afroyim v.
Rusk[16] as beyond the power given to the U.S. Congress to
regulate 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.
There is, therefore, no merit in petitioners contention that
the oath of allegiance contained in private respondents
certificate of candidacy is insufficient to constitute
renunciation of his American citizenship. Equally without
merit is petitioners contention that, to be effective, such
renunciation should have been made upon private respondent
reaching the age of majority since no law requires the election
of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent
admitted that he is registered as an American citizen in the
Bureau of Immigration and Deportation and that he holds an
American passport which he used in 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 citizenship. The acts attributed to him
can be considered simply as the assertion of his American
nationality before the termination of his American
citizenship. What
this
Court
said
in Aznar
v.
COMELEC[18] applies mutatis mutandis to private respondent
in the case at bar:
. . . Considering the fact that admittedly Osmea was both a
Filipino and an American, the mere fact that he has a
Certificate stating he is an American does not mean that he is
not still a Filipino. . . . [T]he Certification that he is an
American does not mean that he is not still a Filipino,
possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation 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 citizenship when
there is no renunciation, either express or implied.

Page 19
To recapitulate, by declaring in his certificate of

candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he
will defend and support the Constitution of the Philippines 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 which he may have
said before as a dual citizen.
On the other hand, private respondents oath of allegiance
to the Philippines, when considered with the fact that he has
spent his youth and 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.
His declarations will be taken upon the faith that he will
fulfill his undertaking made under oath. Should he betray that
trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in 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 his oath as a naturalized citizen, he applied
for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against
any one who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
For his part, the private respondent denies that the filing fee
was paid out of time. In fact he says, it was flied a head of
time. His point is that when he filed his "Petition for Quo
Warranto with Prayer for Immediate Annulment of
Proclamation and Restraining Order or Injunction" on January
26, 1988, the COMELEC treated it as a pre-proclamation
controversy and docketed it as SPC Case No. 88-288. No
docket fee was collected although it was offered. It was only
on February 8, 1988, that the COMELEC decided to treat his
petition as solely for quo warranto and re-docketed it.
The private respondent argues further that during the period
when the COMELEC regarded his petition as a preproclamation controversy, the time for filing an election
protest or quo warranto proceeding was deemed suspended
under Section 248 of the Omnibus Election Code. At any rate,
he says, Rule 36, Section 5, of the COMELEC Rules of
Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said
Rules in the Official Gazette pursuant to Section 4, Rule 44
thereof. These rules could not retroact to January 26,1988,
when he filed his petition with the COMELEC.
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.
LABO VS. COMELEC 176 SCRA 1

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
The petitioner's position is simple. He was proclaimed mayorelect of Baguio City, on January 20, 1988. The petition
for quo warranto was filed by the private respondent on
January 26, 1988, but no filing fee was paid on that date. This
fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was
ineffectual without the filing fee, it should be deemed filed
only when the fee was paid.
Under Section 253 of the Omnibus Election Code:
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 Court has considered the arguments of the parties and

holds that the petition for quo warranto was filed on time. We
agree with the respondents that the fee was paid during the
ten-day period as extended by the pendency of the petition
when it was treated by the COMELEC as a pre-proclamation
proceeding which did not require the payment of a filing fee.
The petitioner forgets Taada v. Tuvera 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,
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.

Page 20
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,
theCommission may refuse to take action
thereon until they are paid and may dismiss
the action or the proceeding.
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,"
This course of action becomes all the more justified in the
present case where, to repeat for stress, it is claimed that a
foreigner is holding a public office.
The petitioner says:
In adopting private respondent's comment, respondent
COMELEC implicitly adopted as "its own" private
respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC
effectively disqualified itself, by reason of prejudgment, from
resolving the petition for quo warranto filed by private
respondent still pending before it?
This is still another reason why the Court has seen fit to rule
directly on the merits of this case.
Going over the record, we find that there are two
administrative decisions on the question of the petitioner's
citizenship. The first was rendered by the Commission on
Elections on May 12, 1982, and found the petitioner to be a
citizen of the Philippines.
The second was rendered by the Commission on Immigration
and Deportation on September 13, 1988, and held that the
petitioner was not a citizen of the Philippines.
The first decision was concurring in the dismissal of the
petition "without prejudice to the issue of the respondent's
citizenship being raised anew in a proper case.
The second decision was unanimously rendered by the
Commissioners 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. The decision also noted
the oath of allegiance taken by every naturalized Australian
and the Affirmation of Allegiance. 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.
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 private respondent questions the motives of the
COMELEC at that time and stresses Labo's political affiliation
with the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be
reversed because of the doctrine of res judicata, but this too
must be dismissed. This doctrine does not apply to questions
of citizenship, as the Court has ruled in several
cases. Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer,
having been invoked only when the petitioner filed his reply 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."
The petitioner now claims that his naturalization in Australia
made him at worst only a dual national and did not divest him
of his Philippine citizenship. Such a specious argument cannot
stand against the clear provisions of CA No. 63, which
enumerates the modes by which Philippine citizenship may be
lost.
Among these are:
(1) Naturalization in a foreign country;
(2) Express renunciation of citizenship; and

Page 21
(3) Subscribing to an oath of allegiance to support the

Constitution or laws of a foreign country, all of which are
applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present
Constitution,
"Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his
naturalization in Australia was annulled after it was found that
his marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted
country. What we must consider is the fact that he voluntarily
and freely rejected Philippine citizenship and willingly and
knowingly embraced the citizenship of a foreign country. The
possibility that he may have been subsequently rejected by
Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. It does not appear in the
record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute
directly conferring Philippine citizenship upon him. Neither
has he shown that he has complied with PD No. 725
PD No. 725 states 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. That is why the
Commission on Immigration and Deportation rejected his
application for the cancellation of his alien certificate of
registration.
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." it was not as loud as all that, for his lead
over the second-placer was only about 2,100 votes. The people
of that locality could not have, even unanimously, changed the
requirements of the Local Government Code and the
Constitution. The electorate had no power to permit a
foreigner owing his total allegiance to the Queen of Australia,
or at least a stateless individual owing no allegiance to the
Republic of the Philippines, to preside over them as mayor of
their city. Only citizens of the Philippines have that privilege
over their countrymen.
The probability that many of those who voted for the

petitioner may have done so in the belief that he was qualified
only strengthens the conclusion that the results of the election
cannot nullify the qualifications for the office now held by
him. These qualifications are continuing requirements; once
any of them is lost during incumbency, title to the office itself
is deemed forfeited. In the case at bar, the citizenship and
voting requirements were not subsequently lost but were not
possessed at all in the first place on the day of the election.
The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.
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.
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 rededication to the country he has abjured and he solemnly
affirms once again his total and exclusive loyalty to the
Republic of the Philippines. This may not be accomplished by
election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby
declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of
Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City, once
this decision becomes final and executory. The temporary
restraining order dated January 31, 1989, is LIFTED.
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL
JUSTICE FOR SCHOOL TEACHERS AND ALLIED
WORKERS)
MEMBERHECTOR
GUMANGAN
CALILUNG
vs.
THE HONORABLE SIMEON
DATUMANONG, in his official capacity as the Secretary
of Justice. GR NO. 160869, MAY 11, 2007
SYLLABUS: Constitutional Law Citizenship Dual
Allegiance What Rep. Act No. 9225 does is allow dual
citizenship to natural born Filipino citizens who has lost
Philippine citizenship by reason of their naturalization as
citizens of a foreign country On its face, it does not recognize
dual allegiance By swearing to the supreme authority of the
Republic, the person implicitly renounces his foreign
citizenship. From the excerpts of the legislative record, it is
clear that the intent of the legislature in drafting Rep. Act No.
9225 is to do away with the provision in Commonwealth Act
No. 63 which takes away Philippine citizenship from natural
born Filipinos who become naturalized citizens of other
countries. What Rep. Act No. 9225 does is allow dual
citizenship to natural born Filipino citizens who have lost
citizens of a foreign country. On its face, it does not recognize

Page 22
dual allegiance. By swearing to the supreme authority of the

citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed
clear out of the problem of dual allegiance and shifted the
burden of confronting the issue of whether or not there is dual
allegiance to the concerned foreign country. What happens to
the other citizenship was not made a concern of Rep. Act No.
9225.
FACTS: On August 29, 2003, Rep. Act No. 9225 was signed
into law by President Gloria M. Arroyo which titled 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.
Petitioner filed the instant petition against respondent,
then Secretary of Justice Simeon Datumanong, the official
tasked to implement laws governing citizenship. Petitioner
prays that a writ of prohibition be issued to stop respondent
from implementing Republic Act No. 9225. Petitioner avers
that Rep. Act No. 9225 is unconstitutional as it violates
Section 5, Article IV of the 1987 Constitution that states,
Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law.
Petitioner contends that Rep. Act No. 9225 cheapens
Philippine citizenship. He avers that Sections 2 and 3 of Rep.
Act No. 9225, together, allow dual allegiance and not dual
citizenship. Petitioner maintains that Section 2 allows all
Filipinos, either natural born or naturalized, who become
foreign citizens, to retain their Philippine citizenship without
losing their foreign citizenship. Section 3 permits dual
allegiance because said law allows natural born citizens of the
Philippines to regain their Philippine citizenship by simply
taking an oath of allegiance without forfeiting their foreign
allegiance. The Constitution, however, is categorical that dual
allegiance is inimical to the national interest.
The Office of the Solicitor General (OSG) claims that
Section 2 merely declares as a state policy that Philippine
citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship. The
OSG further claims that the oath in Section 3 does not allow
dual allegiance since the oath taken by the former Filipino
citizen is an effective renunciation and repudiation of his
foreign citizenship. The fact that the applicant taking the oath
recognizes and accepts the supreme authority of the
Philippines is an unmistakable and categorical affirmation of
his undivided loyalty to the Republic.
ISSUE: WON Rep. Act No. 9225 is unconstitutional?
HELD: NO. From the excerpts of the legislative record, it is
clear that the intent of the legislature in drafting Rep. Act No.
9225 is to do away with the provision in Commonwealth Act
No. 63 which takes away Philippine citizenship from natural
born Filipinos who become naturalized citizens of other
countries. What Rep. Act No. 9225 does is allow dual
citizenship to natural born Filipino citizens who have lost
citizens of a foreign country. On its face, it does not recognize
dual allegiance. By swearing to the supreme authority of the

citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed
clear out of the problem of dual allegiance and shifted the
burden of confronting the issue of whether or not there is dual
allegiance to the concerned foreign country. What happens to
the other citizenship was not made a concern of Rep. Act No.
9225.
TEODORA SOBEJANA CONDON, petitioner, vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA,
ROBELITO V. PICAR and WILMA P. PAGADUAN,
respondents. G.R. No. 198742. August 10, 2012.
Constitutional Law Civil Law Citizenship Citizenship
Retention and ReAcquisition Act of 2003 (R.A. No. 9225) R.A.
No. 9225 allows the retention and reacquisition of Filipino
citizenship for natural born citizens who have lost their
Philippine citizenship by taking an oath of allegiance to the
Republic.R.A. No. 9225 allows the retention and
reacquisition of Filipino citizenship for natural born citizens
who have lost their Philippine citizenship by taking an oath of
allegiance to the Republic, thus: x x x 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.
Election Law Citizenship Citizenship Retention and
ReAcquisition Act of 2003 (R.A. No. 9225) Renunciation of
Foreign Citizenship R.A. No. 9225 categorically demands
naturalborn 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.In fine, R.A. No. 9225 categorically
demands naturalborn 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. The rule applies to all those who have
reacquired 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.
FACTS: 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 petitioner is a naturalborn
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. On December 2, 2005, she
filed an application to reacquire 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 ReAcquisition Act of 2003. 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

Page 23
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. 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 ViceMayor. She
obtained the highest numbers of votes and was proclaimed as
the winning candidate. Soon thereafter, private respondents
Robelito V. Picar, Wilma P. Pagaduan and Luis M. Bautista,
(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.
RTC: 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.
COMELEC: DISMISS the instant appeal for lack of merit;
AFFIRM the DECISION dated 22 October 2010 of the court a
quo and GRANT the Motion for Execution filed on
November 12, 2010.
ISSUE: WON petitioner is eligible to run for and thus hold
any elective public office.
HELD: 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: 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 twentyfive days from the time of the filing
of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the
election;and
(2) After election, pursuant to Section 253 thereof, viz.: Sec.
253. Petition for quo warranto.Any voter contesting the
election of any 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 results of the election.
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. The law
allows the retention and reacquisition of Filipino citizenship
for naturalborn citizens who have lost their Philippine
citizenship by taking an oath of allegiance to the Republic.

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.
Section 5(2) of Republic Act No. 9225 compels Naturalborn
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 allegiance under Section 3 of
Republic Act No. 9225, and (2) for those seeking elective
public offices in the Philippines, to additionally execute a
personal and sworn renunciation of any and all foreign
citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to
qualify as candidates in Philippine elections. WHEREFORE,
in view of all the foregoing, the petition is hereby
DISMISSED.
MACALINTAL VS COMELEC, JULY 10, 2003

Before the Court is a petition for certiorari and
prohibition filed by Romulo B. Macalintal, a member of the
Philippine Bar, seeking a declaration that certain provisions of
Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)[1] suffer from constitutional infirmity. Claiming that he
has actual and material legal interest in the subject matter of
this case in seeing to it that public funds are properly and
lawfully used and appropriated, petitioner filed the instant
petition as a taxpayer and as a lawyer.
R.A. No. 9189, entitled, An Act Providing for A System
of Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefor, and for
Other Purposes, appropriates funds under Section 29 thereof
which provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall
provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right
to restrain officials from wasting public funds through the
enforcement of an unconstitutional statute. [2] The Court has
held that they may assail the validity of a law appropriating
public funds[3] because expenditure of public funds by an
officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such
funds.[4]
The challenged provision of law involves a public right
that affects a great number of citizens. The Court has adopted
the policy of taking jurisdiction over cases whenever the
petitioner has seriously and convincingly presented an issue of
transcendental significance to the Filipino people.
The petitioner raises three principal questions:

Page 24
A. Does Section 5(d) of Rep. Act No. 9189

allowing the registration of voters who are
immigrants or permanent residents in other
countries by their mere act of executing an
affidavit expressing their intention to return to the
Philippines, violate the residency requirement in
Section 1 of Article V of the Constitution?
SEC. 3. Definition of Terms. For purposes of this Act:
B. Does Section 18.5 of the same law empowering

the COMELEC to proclaim the winning candidates
for national offices and party list representatives
including the President and the Vice-President
violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning
candidates for President and the Vice-President
shall be proclaimed as winners by Congress?
f) Overseas Absentee Voter refers to a citizen of the

Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the
day of elections. (Emphasis supplied)
C. May Congress, through the Joint Congressional

Oversight Committee created in Section 25 of Rep.
Act No. 9189, exercise the power to review, revise,
amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall
promulgate without violating the independence of
the COMELEC under Section 1, Article IX-A of
the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1,
Article V of the 1987 Constitution of the Republic of the
Philippines?
Petitioner posits that Section 5(d) is unconstitutional because
it violates Section 1, Article V of the 1987 Constitution which
requires that the voter must be a resident in the Philippines for
at least one year and in the place where he proposes to vote for
at least six months immediately preceding an election
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be qualified to
vote in a political exercise;[13] that the legislature should not be
allowed to circumvent the requirement of the Constitution on
the right of suffrage by providing a condition thereon which in
effect amends or alters the aforesaid residence requirement to
qualify a Filipino abroad to vote.
In compliance with the Resolution of the Court, the
Solicitor General filed his comment for all public
respondents. He contraposes that the constitutional challenge
to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant
to the Constitution. He stresses: All laws are presumed to be
constitutional; by the doctrine of separation of powers, a
department of government owes a becoming respect for the
acts of the other two departments; all laws are presumed to
have adhered to constitutional limitations; the legislature
intended to enact a valid, sensible, and just law.
The seed of the present controversy is the interpretation
that is given to the phrase, qualified citizens of the Philippines
abroad as it appears in R.A. No. 9189, to wit:
a) Absentee Voting refers to the process by which qualified

citizens of the Philippines abroad, exercise their right to
vote;
. . . (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad,

who are not otherwise disqualified by law, at least eighteen
(18) years of age on the day of elections, may vote for
president,
vice-president,
senators
and
party-list
representatives. (Emphasis supplied)
As finally approved into law, Section 5(d) of R.A. No.
9189 specifically disqualifies an immigrant or permanent
resident who is recognized as such in the host country because
immigration or permanent residence in another country
implies renunciation of ones residence in his country of origin.
However, same Section allows an immigrant and permanent
resident abroad to register as voter for as long as he/she
executes an affidavit to show that he/she has not abandoned
his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that all citizens of
the Philippines not otherwise disqualified by law must be
entitled to exercise the right of suffrage and, that Congress
must establish a system for absentee voting; for otherwise, if
actual, physical residence in the Philippines is required, there
is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.
Petitioner questions the rightness of the mere act of
execution of an affidavit to qualify the Filipinos abroad who
are immigrants or permanent residents, to vote. He focuses
solely on Section 1, Article V of the Constitution in ascribing
constitutional infirmity to Section 5(d) of R.A. No. 9189,
totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified
Filipinos abroad.
Contrary to the claim of petitioner, the execution of the
affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go back
and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct
to say that the execution of the affidavit under Section 5(d)
violates the Constitution that proscribes provisional
registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and
permanent residents abroad because by their status in their
host countries, they are presumed to have relinquished their
intent to return to this country; thus, without the affidavit, the

Page 25
presumption of abandonment of Philippine domicile shall

remain.
In the advent of The Overseas Absentee Voting Act of
2003 or R.A. 9189, they may still be considered as a qualified
citizen of the Philippines abroad upon fulfillment of the
requirements of registration under the new law for the purpose
of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only
require an affidavit or a promise to resume actual physical
permanent residence in the Philippines not later than three
years from approval of his/her registration, the Filipinos
abroad must also declare that they have not applied for
citizenship in another country. Thus, they must return to the
Philippines; otherwise,their failure to return shall be cause for
the removal of their names from the National Registry of
Absentee Voters and his/her permanent disqualification to
vote in absentia.
Thus, Congress crafted a process of registration by which
a Filipino voter permanently residing abroad who is at least
eighteen years old, not otherwise disqualified by law, who has
not relinquished Philippine citizenship and who has not
actually abandoned his/her intentions to return to his/her
domicile of origin, the Philippines, is allowed to register and
vote in the Philippine embassy, consulate or other foreign
service establishments of the place which has jurisdiction over
the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a
clean election.
Contrary to petitioners claim that Section 5(d)
circumvents the Constitution, Congress enacted the law
prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system
of absentee voting that necessarily presupposes that the
qualified citizen of the Philippines abroad is not physically
present in the country. The provisions of Sections 5(d) and 11
are components of the system of overseas absentee voting
established by R.A. No. 9189. The qualified Filipino abroad
who executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have lost
his domicile by his physical absence from this country. His
having become an immigrant or permanent resident of his host
country does not necessarily imply an abandonment of his
intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the
Philippines by executing the affidavit required by Sections
5(d) and 8(c) of the law.
Petitioners
speculative
apprehension
that
the
implementation of Section 5(d) would affect the credibility of
the elections is insignificant as what is important is to ensure
that all those who possess the qualifications to vote on the date
of the election are given the opportunity and permitted to
freely do so. The COMELEC and the Department of Foreign
Affairs have enough resources and talents to ensure the
integrity and credibility of any election conducted pursuant to
R.A. No. 9189.
As to the eventuality that the Filipino abroad would

renege on his undertaking to return to the Philippines, the
penalty of perpetual disenfranchisement provided for by
Section 5(d) would suffice to serve as deterrence to noncompliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of
immigrants renege on their promise to return, the result of the
elections would be affected and could even be a ground to
contest the proclamation of the winning candidates and cause
further confusion and doubt on the integrity of the results of
the election. Indeed, the probability that after an immigrant
has exercised the right to vote, he shall opt to remain in his
host country beyond the third year from the execution of the
affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. In fine,
considering the underlying intent of the Constitution, the
Court does not find Section 5(d) of R.A. No. 9189 as
constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of
the same Act in contravention of Section 4, Article VII of the
Constitution?
Section 4 of R.A. No. 9189 provides that the overseas
absentee voter may vote for president, vice-president, senators
and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of the
proclamation of a winning candidate if the outcome of the
election will not be affected by the results
thereof. Notwithstanding the foregoing, the Commission is
empowered to order the proclamation of winning
candidates despite the fact that the scheduled election has not
taken place in a particular country or countries, if the holding
of elections therein has been rendered impossible by events,
factors and circumstances peculiar to such country or
countries, in which events, factors and circumstances are
beyond the control or influence of the Commission. (Emphasis
supplied)
Petitioner claims that the provision of Section 18.5 of
R.A. No. 9189 empowering the COMELEC to order the
proclamation of winning candidates insofar as it affects the
canvass of votes and proclamation of winning candidates for
president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:
which gives to Congress the duty to canvass the votes
and proclaim the winning candidates for president and vicepresident.
The Solicitor General asserts that this provision must be
harmonized with paragraph 4, Section 4, Article VII of the
Constitution and should be taken to mean that COMELEC can

Page 26
only proclaim the winning Senators and party-list

representatives but not the President and Vice-President.[41]
Indeed, the phrase, proclamation of winning candidates,
in Section 18.5 of R.A. No. 9189 is far too sweeping that it
necessarily includes the proclamation of the winning
candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to
Section 4, Article VII of the Constitution only insofar as said
Section totally disregarded the authority given to Congress by
the Constitution to proclaim the winning candidates for the
positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law,
to wit:
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission
equally safe and reliable the Certificates of Canvass and the
Statements of Votes to the Commission, . . . [Emphasis
supplied]
clashes with paragraph 4, Section 4, Article VII of the
Constitution which provides that the returns of every election
for President and Vice-President shall be certified by the board
of canvassers to Congress.
Congress could not have allowed the COMELEC to
usurp a power that constitutionally belongs to it or, as aptly
stated by petitioner, to encroach on the power of Congress to
canvass the votes for president and vice-president and the
power to proclaim the winners for the said positions. The
provisions of the Constitution as the fundamental law of the
land should be read as part of The Overseas Absentee Voting
Act of 2003 and hence, the canvassing of the votes and the
proclamation of the winning candidates for president and vicepresident for the entire nation must remain in the hands of
Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of
Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189
violate Article IX-A (Common Provisions) of the
Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on
Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional
Oversight Committee with the power to review, revise, amend
and approve the Implementing Rules and Regulations
promulgated by the COMELEC, R.A. No. 9189 intrudes into
the independence of the COMELEC which, as a constitutional
body, is not under the control of either the executive or
legislative departments of government; that only the
COMELEC itself can promulgate rules and regulations which
may be changed or revised only by the majority of its
members; and that should the rules promulgated by the
COMELEC violate any law, it is the Court that has the power
to review the same via the petition of any interested party,
including the legislators.
The parties are unanimous in claiming that Sections 19,
25 and portions of Section 17.1 are unconstitutional. Thus,
there is no actual issue forged on this question raised by
petitioner.
However, the Court finds it expedient to expound on the
role of Congress through the Joint Congressional Oversight
Committee (JCOC) vis--vis the independence of the
COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint
Congressional Oversight Committee is hereby created,
composed of the Chairman of the Senate Committee on
Constitutional Amendments, Revision of Codes and Laws, and
seven (7) other Senators designated by the Senate President,
and the Chairman of the House Committee on Suffrage and
Electoral Reforms, and seven (7) other Members of the House
of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to
be designated by each House of Congress, four (4) should
come from the majority and the remaining three (3) from the
minority.
The Joint Congressional Oversight Committee shall have
the power to monitor and evaluate the implementation of
this Act. It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the
Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules.
The Commission shall issue the necessary rules and
regulations to effectively implement the provisions of this Act
within sixty (60) days from the effectivity of this Act. The
Implementing Rules and Regulations shall be submitted to
the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of
Representatives, the Joint Congressional Oversight Committee
(JCOC) is a purely legislative body. There is no question that
the authority of Congress to monitor and evaluate the
implementation of R.A. No. 9189 is geared towards possible
amendments or revision of the law itself and thus, may be
performed in aid of its legislation.
However, aside from its monitoring and evaluation
functions, R.A. No. 9189 gives to the JCOC the following
functions: (a) to review, revise, amend and approve the
Implementing Rules and Regulations (IRR) promulgated by
the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in not
more than three countries for the May 2004 elections and in
any country determined by COMELEC.

Page 27
By vesting itself with the powers to approve, review,

amend, and revise the IRR for The Overseas Absentee Voting
Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the
constitutional
mandate
of
independence
of
the
COMELEC. Under such a situation, the Court is left with no
option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.
d) The second sentence in the second paragraph of Section 25,

to wit: It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the
Commission of the same law;
The second sentence of the first paragraph of Section 19

stating that [t]he Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval, and the second
sentence of the second paragraph of Section 25 stating that [i]t
shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission,
whereby Congress, in both provisions, arrogates unto itself a
function not specifically vested by the Constitution, should be
stricken out of the subject statute for constitutional
infirmity. Both provisions brazenly violate the mandate on the
independence of the COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189

is UPHELD with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but not as to the power
to canvass the votes and proclaim the winning candidates for
President and Vice-President which is lodged with Congress
under Section 4, Article VII of the Constitution.
Similarly, the phrase, subject to the approval of the

Congressional Oversight Committee in the first sentence of
Section 17.1 which empowers the Commission to authorize
voting by mail in not more than three countries for the May,
2004 elections; and the phrase, only upon review and approval
of the Joint Congressional Oversight Committee found in the
second paragraph of the same section are unconstitutional as
they require review and approval of voting by mail in any
country after the 2004 elections. Congress may not confer
upon itself the authority to approve or disapprove the countries
wherein voting by mail shall be allowed, as determined by the
COMELEC pursuant to the conditions provided for in Section
17.1 of R.A. No. 9189.[48] Otherwise, Congress would
overstep the bounds of its constitutional mandate and intrude
into the independence of the COMELEC.
During the deliberations, all the members of the Court
agreed to adopt the separate opinion of Justice Reynato S.
Puno as part of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The
following portions of R.A. No. 9189 are declared VOID for
being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first
paragraph of Section 17.1, to wit: subject to the
approval of the Joint Congressional Oversight
Committee;
b) The portion of the last paragraph of Section 17.1,
to wit: only upon review and approval of the Joint
Congressional Oversight Committee;
c) The second sentence of the first paragraph of
Section 19, to wit: The Implementing Rules and
Regulations shall be submitted to the Joint
Congressional Oversight Committee created by
virtue of this Act for prior approval; and
for being repugnant to Section 1, Article IX-A of the

Constitution mandating the independence of constitutional
commission, such as COMELEC.
The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the
provisions of said law continues to be in full force and effect.
SO ORDERED.
ROMUALDEZ - MARCOS VS COMELEC 248 SCRA

300
FACTS: Imelda Romualdez-Marcos filed her Certificate of
Candidacy (COC) for the position of Representative of the
First District of Leyte, stating that she is 7-months resident in
the said district. Montejo, incumbent Representative and a
candidate for the same position, filed a Petition for
Cancellation and Disqualification, alleging that Imelda did not
meet the constitutional one-year residency requirement.
Imelda thus amended her COC, changing seven months to
since childhood. The provincial election supervisor refused
to admit the amended COC for the reason that it was filed out
of time. Imelda, thus, filed her amended COC with Comelec's
head office in Manila.
On April 24, 1995, the Comelec Second Division declared
Imelda not qualified to run and struck off the amended as well
as original COCs. The Comelec in division found that when
Imelda chose to stay in Ilocos and later on in Manila, coupled
with her intention to stay there by registering as a voter there
and expressly declaring that she is a resident of that place, she
is deemed to have abandoned Tacloban City, where she spent
her childhood and school days, as her place of domicile. The
Comelec en banc affirmed this ruling.
During the pendency of the disqualification case, Imelda won
in the election. But the Comelec suspended her proclamation.
Imelda thus appealed to the Supreme Court.
Imelda invoked Section 78 of B.P. 881 which provides that a
petition seeking to deny due course or to cancel a certificate of
candidacy must be decided, after due notice and hearing, not
later than 15 days before the election. Since the Comelec
rendered the resolution on on April 24, 1995, fourteen (14)
days before the election, Comelec already lose jurisdiction
over her case. She contended that it is the House of
Representatives Electoral Tribunal and not the Comelec which

Page 28
has jurisdiction over the election of members of the House of

Representatives.
ISSUE/S: Was Imelda a resident, for election purposes, of the
First District of Leyte for a period of one year at the time of
the May 9, 1995 elections. Does the Comelec lose jurisdiction
to hear and decide a pending disqualification case after the
elections? Does the House of Representatives Electoral
Tribunal assumed exclusive jurisdiction over the question of
Imelda's qualifications after the May 8, 1995 elections?
HELD: 1. Imelda was a resident of the First District of Leyte
for election purposes, and therefore possessed the necessary
residence qualifications to run in Leyte as a candidate for a
seat in the House of Representatives for the following reasons:
a. Minor follows the domicile of his parents. As domicile,
once acquired is retained until a new one is gained, it follows
that in spite of the fact of petitioner's being born in Manila,
Tacloban, Leyte was her domicile of origin by operation of
law. This domicile was established when her father brought
his family back to Leyte.
b. Domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate:
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of
residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these
criteria, the residence of origin should be deemed to continue.
Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence
be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal
residences at the same time. Petitioner held various residences
for different purposes during the last four decades. None of
these purposes unequivocally point to an intention to abandon
her domicile of origin in Tacloban, Leyte.
c. It cannot be correctly argued that petitioner lost her
domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. A
wife does not automatically gain the husbands domicile.
What petitioner gained upon marriage was actual residence.
She did not lose her domicile of origin. The term residence
may mean one thing in civil law (or under the Civil Code) and
quite another thing in political law. What stands clear is that
insofar as the Civil Code is concerned-affecting the rights and
obligations of husband and wife the term residence should
only be interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous civil
law delineation therefore, is that when petitioner married the
former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.
d. Even assuming for the sake of argument that petitioner
gained a new "domicile" after her marriage and only acquired
a right to choose a new one after her husband died, petitioner's
acts following her return to the country clearly indicate that
she not only impliedly but expressly chose her domicile of

origin (assuming this was lost by operation of law) as her
domicile. This "choice" was unequivocally expressed in her
letters to the Chairman of the PCGG when petitioner sought
the PCGG's permission to "rehabilitate (our) ancestral house in
Tacloban and Farm in Olot, Leyte ... to make them livable for
the Marcos family to have a home in our homeland."
Furthermore, petitioner obtained her residence certificate in
1992 in Tacloban, Leyte, while living in her brother's house,
an act which supports the domiciliary intention clearly
manifested in her letters to the PCGG Chairman.
2. With the enactment of Sections 6 and 7 of R.A. 6646 in
relation to Section 78 of B.P. 881, it is evident that the
Comelec does not lose jurisdiction to hear and decide a
pending disqualification case under Section 78 of B.P. 881
even after the elections.
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.
Moreover, it is a settled doctrine that a statute requiring
rendition of judgment within a specified time is generally
construed to be merely directory, "so that non-compliance
with them does not invalidate the judgment on the theory that
if the statute had intended such result it would have clearly
indicated it.
3. HRET's jurisdiction as the sole judge of all contests relating
to the elections, returns and qualifications of members of
Congress begins only after a candidate has become a member
of the House of Representatives. Imelda, not being a member
of the House of Representatives, it is obvious that the HRET
at this point has no jurisdiction over the question.
(Romualdez-Marcos vs Comelec, G.R. No. 119976,
September 18, 1995)
AQUINO VS. COMMISSION ON ELECTIONS G.R. NO.

120265. SEPTEMBER 18, 1995
FACTS: On March 20, 1995, petitioner Agapito A. Aquino
filed his Certificate of Candidacy for the position of
Representative for the new Second Legislative District of
Makati City. Among others, Aquino provided the following
information in his certificate of candidacy, viz:
RESIDENCE (Complete Address): 284 AMAPOLA COR.
ADALLA STS., PALM VILLAGE, MAKATI. x x x
(8) RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK
TO BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_ _ _ _ _ Years and 10 Months
On April 24, 1995, Move Makati, a duly registered political
party,
and
Mateo
Bedon,
Chairman
of
the

Page 29
LAKASNUCDUMDP of Barangay Cembo, Makati City, filed

a petition to disqualify Agapito A. Aquino on the ground that
the latter lacked the residence qualification as a candidate for
congressman which should be for a period not less than one
(1) year immediately preceding the May 8, 1995 elections. On
April 25, 1995, a day after said petition for disqualification
was filed, petitioner filed another certificate of candidacy
amending the certificate dated March 20, 1995. This time,
petitioner stated in Item 8 of his certificate that he had resided
in the constituency where he sought to be elected for one (1)
year and thirteen (13) days.
On May 2, 1995, petitioner filed his Answer dated April 29,
1995 praying for the dismissal of the disqualification case. On
the same day, May 2, 1995, a hearing was conducted by the
COMELEC wherein petitioner testified and presented in
evidence, among others, his Affidavit dated May 2, 1995,
lease contract between petitioner and Leonor Feliciano dated
April 1, 1994, Affidavit of Leonor Feliciano dated April 28,
19957 and Affidavit of Daniel Galamay dated April 28, 1995.
After hearing of the petition for disqualification, the Second
Division of the COMELEC promulgated a Resolution dated
May 6, 1995 RESOLVES to DISMISS the instant petition for
Disqualification against respondent AGAPITO AQUINO and
declares him ELIGIBLE to run for the Office of
Representative in the Second Legislative District of Makati
City. On May 7, 1995, Move Makati and Mateo Bedon filed a
Motion for Reconsideration of the May 6, 1995 resolution
with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati
City where three (3) candidates vied for the congressional seat
in the Second District, petitioner garnered thirty eight
thousand five hundred forty seven (38,547) votes as against
another candidate, Agusto Syjuco, who obtained thirty five
thousand nine hundred ten (35,910) votes.
ISSUE: WON Agapito A. Aquino lacked the residence
qualification as a candidate for congressman.
HELD: Yes.
In order that petitioner could qualify as a candidate for
Representative of the Second District of Makati City the latter
must prove that he has established not just residence but
domicile of choice. The Constitution requires that a person
seeking election to the House of Representatives should be a
resident of the district in which he seeks election for a period
of not less than one (1) year prior to the elections. Residence,
for election law purposes, has a settled meaning in our
jurisdiction. In Co v. Electoral Tribunal of the House of
Representatives this Court held that the term residence has
always been understood as synonymous with domicile not
only under the previous Constitutions but also under the 1987
Constitution.
The deliberations of the Constitutional Commission reveal that
the meaning of residence vis--vis the qualifications of a
candidate for Congress continues to remain the same as that of
domicile, to wit: The framers of the Constitution adhered to
the earlier definition given to the word residence which
regarded it as having the same meaning as domicile.
Clearly, the place where a party actually or constructively has

his permanent home, where he, no matter where he may be
found at any given time, eventually intends to return and
remain, i.e., his domicile, is that to which the Constitution
refers when it speaks of residence for the purposes of election
law.
As found by the COMELEC en banc petitioner in his
Certificate of Candidacy for the May 11, 1992 elections,
indicated not only that he was a resident of San Jose,
Concepcion, Tarlac in 1992 but that he was a resident of the
same for 52 years immediately preceding that election. At the
time, his certificate indicated that he was also a registered
voter of the same district. His birth certificate places
Concepcion, Tarlac as the birthplace of both of his parents
Benigno and Aurora. Thus, from data furnished by petitioner
himself to the COMELEC at various times during his political
career, what stands consistently clear and unassailable is that
his domicile of origin of record up to the time of filing of his
most recent certificate of candidacy for the 1995 elections was
Concepcion, Tarlac. The intention not to establish a permanent
home in Makati City is evident in his leasing a condominium
unit instead of buying one.
While a lease contract may be indicative of respondents
intention to reside in Makati City it does not engender the kind
of permanency required to prove abandonment of ones
original domicile especially since, by its terms, it is only for a
period of two (2) years, and respondent Aquino himself
testified that his intention was really for only one (1) year,
because he has other residences in Manila or
Quezon City.
Finally, petitioners submission that it would be legally
impossible to impose the one year residency requirement in a
newly created political district is specious and lacks basis in
logic. A new political district is not created out of thin air. It is
carved out from part of a real and existing geographic area, in
this case the old Municipality of Makati. That people actually
lived or were domiciled in the area encompassed by the new
Second District cannot be denied.
Modern day Carpet baggers cannot be allowed to take
advantage of the creation of new political districts by suddenly
transplanting themselves in such new districts, prejudicing
their genuine residents in the process of taking advantage of
existing conditions in these areas.
ROMUALDEZ VS. RTC BR. 7 TACLOBAN CITY G.R.
NO. 104960, SEPTEMBER 14, 1993
FACTS: Petitioner is Philip Romualdez, a natural born citizen
of the Philippines, the son of the former Governor of Leyte
Benjamin Romualdez and nephew of the then First Lady
Imelda Marcos. Petitioner established his legal residence at
barangay Malbog, Tolosa, Leyte, caused the construction of
his residential house therein. When the eventful days from 21st
to the 24th of February 1986, came or were about to come to a
close, some relatives and associates of the deposed President,
fearing for their personal safety, whether founded or not, fled
the country. Petitioner Romualdez, for one, together with his

Page 30
immediate family, left the Philippines and sought asylum in

the United States which the U.S government granted. In the
early part of 1987, Romualdez attempted to come back to the
Philippines to run for a congressional seat in Leyte. When
Romualdez arrived in the Philippines and during the
Registration of voters conducted by the COMELEC, petitioner
regiteres himself as a voter of Malbog, Tolosa Leyte.
Romualdezs registration, however, was not to be
unquestioned. Private respondent advincula filed a petition
with the MTC, praying that Romualdez be excluded from the
list of voters. Advincula alleged that Romualdez was a
resident of Massachusetts, U.S.A.; that he had just recently
arrived in the Philippines and that he did not have the required
one-year residence in the Philippnes and the six month
residence in Tolosa to qualify him to register as a voter in
Barangay Malbog, Tolosa, Leyte. The MTC denied the
petition. Advincula appealed the case to the respondent court.
The respondent court reverse the decision of the lower court
on toto.
IN THE MATTER OF THE TESTATE ESTATE OF

EDWARD E. CHRISTENSEN, DECEASED. ADOLFO
C. AZNAR, EXECUTOR AND LUCY CHRISTENSEN,
HEIR OF THE DECEASED, EXECUTOR AND HEIRAPPELLEES,
VS.
HELEN
CHRISTENSEN
GARCIA, OPPOSITOR-APPELLANT. G.R. NO. L16749 JANUARY 31, 1963
ISSUE: WON the respondent court erred in finding the

petitioner to have voluntarily left the country and abandoned
his residence in Malbog, Tolosa, Leyte.
7. I give, devise and bequeath unto MARIA HELEN

CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to
me, nor has she been at any time adopted by me, and who,
from all information I have now resides in Egpit, Digos,
Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the
same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have
accrued thereon, is exhausted..
HELD: In election cases, the Court treats domicile and

residence as synonymous terms, thus: "(t)he term "residence"
as used in the election law is synonymous with "domicile",
which imports not only an intention to reside in a fixed place
but also personal presence in that place, coupled with conduct
indicative of such intention." 19 "Domicile" denotes a fixed
permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. 20 That
residence, in the case of the petitioner, was established during
the early 1980's to be at Barangay Malbog, Tolosa, Leyte.
Residence thus acquired, however, may be lost by adopting
another choice of domicile. In order, in turn, to acquire a new
domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there,
and (3) an intention to abandon the old domicile. 21 In other
words, there must basically be animus manendicoupled
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. 22
The political situation brought about by the "People's Power
Revolution" must have truly caused great apprehension to the
Romualdezes, as well as a serious concern over the safety and
welfare of the members of their families. Their going into selfexile until conditions favorable to them would have somehow
stabilized is understandable. Certainly, their sudden departure
from the country cannot be described as "voluntary," or as
"abandonment of residence" at least in the context that these
terms are used in applying the concept of "domicile by
choice."
We have closely examined the records, and we find not that
much to convince us that the petitioner had, in fact, abandoned
his residence in the Philippines and established his domicile
elsewhere.
FACTS: Edward E. Christensen died with a will

containing the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (now Mrs. Bernard Daney), who
was born in the Philippines about twenty-eight years ago, and
who is now residing at No. 665 Rodger Young Village, Los
Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and
no descendants except my above named daughter, MARIA
LUCY CHRISTENSEN DANEY
12. I hereby give, devise and bequeath, unto my well-beloved

daughter, the said MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all
the income from the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of
which I may be possessed at my death and which may have
come to me from any source whatsoever, during her lifetime:
....
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified
the payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was
filed by Helen Christensen Garcia, insofar as it deprives her
(Helen) of her legitime as an acknowledged natural child, she
having been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E.
Christensen
The legal grounds of opposition are:
(a) that the distribution should be governed by the laws
of the Philippines, and;

Page 31
(b) that said order of distribution is contrary thereto

insofar as it denies to Helen Christensen, one of two
acknowledged natural children, one-half of the estate in
full ownership. In amplification of the above grounds it
was alleged that the law that should govern the estate of
the deceased Christensen should not be the internal law
of California alone, but the entire law thereof because
several foreign elements are involved, that the forum is
the Philippines and even if the case were decided in
California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should
apply, should be applicable. It was also alleged that
Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her
birth.
The lower court ruled that as Edward E. Christensen was
a citizen of the United States and of the State of
California at the time of his death, the successional rights
and intrinsic validity of the provisions in his will are to be
governed by the law of California, in accordance with which
a testator has the right to dispose of his property in the way
he desires, because the right of absolute dominion over his
property is sacred and inviolable (In re McDaniel's Estate, 77
Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117
Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal).
Oppositor Maria Helen Christensen,
ISSUE:
HELD: There is no question that Edward E. Christensen was
a citizen of the United States and of the State of California at
the time of his death. But there is also no question that at the
time of his death he was domiciled in the Philippines
In arriving at the conclusion that the domicile of the deceased
is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there
for nine years, and since he came to the Philippines in 1913
he returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never
to have owned or acquired a home or properties in that state,
which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich
on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship
that he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in
the Philippines, for the latter was a territory of the United
States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact
that when he executed his will in 1951 he declared that he
was a citizen of that State; so that he appears never to have
intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to

mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has
never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he
divides his time, certainly resides in each one, while living in
it. But if he went on business which would require his
presence for several weeks or months, he might properly be
said to have sufficient connection with the place to be called
a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in
hand, not giving up his former "home," he could not be a
domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical
presence. "Residence simply requires bodily presence of an
inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it one's
domicile." Residence, however, is a term used with many
shades of meaning, from the merest temporary presence to
the most permanent abode, and it is not safe to insist that any
one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of
the Philippines, which is as follows:
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country where said
property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law" is
used therein.
There is no single American law governing the validity of
testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens
only and in force only within the state. The "national law"
indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law
of the State of California.
The next question is: What is the law in California governing
the disposition of personal property? The decision of the
court below, sustains the contention of the executor-appellee
that under the California Probate Code, a testator may
dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal.
Appl. 2d 877, 176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code of California,
which is as follows:
If there is no law to the contrary, in the place where
personal property is situated, it is deemed to follow the
person of its owner, and is governed by the law of his
domicile.

Page 32
The theory of doctrine of renvoi has been defined by

various authors, thus:
The problem has been stated in this way: "When the
Conflict of Laws rule of the forum refers a jural matter to a
foreign law for decision, is the reference to the purely
internal rules of law of the foreign system; i.e., to the
totality of the foreign law minus its Conflict of Laws
rules?"
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity
of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile
of the parties in the divorce case, is applied by the forum, but
any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
The scope of the theory of renvoi has also been defined and
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27,
1917-1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
the recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well.
According to this theory 'the law of a country' means the
whole of its law.
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as regards
the application of foreign laws.
(Example)
(2) Provided that no express provision to the contrary exists,

the court shall respect:
X, a citizen of Massachusetts, dies intestate, domiciled in

France, leaving movable property in Massachusetts, England,
and France. The question arises as to how this property is to
be distributed among X's next of kin.
(a) The provisions of a foreign law which disclaims the right

to bind its nationals abroad as regards their personal statute,
and desires that said personal statute shall be determined by
the law of the domicile, or even by the law of the place where
the act in question occurred.
Assume (1) that this question arises in a Massachusetts court.

There the rule of the conflict of laws as to intestate
succession to movables calls for an application of the law of
the deceased's last domicile. Since by hypothesis X's last
domicile was France, the natural thing for the Massachusetts
court to do would be to turn to French statute of distributions,
or whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called upon
to determine how this property should be distributed, it
would refer the distribution to the national law of the
deceased, thus applying the Massachusetts statute of
distributions. So on the surface of things the Massachusetts
court has open to it alternative course of action: (a) either to
apply the French law is to intestate succession, or (b) to
resolve itself into a French court and apply the Massachusetts
statute of distributions, on the assumption that this is what a
French court would do. If it accepts the socalled renvoidoctrine, it will follow the latter course, thus
applying its own law.
This is one type of renvoi. A jural matter is presented which
the conflict-of-laws rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn, refers the matter
back again to the law of the forum. This is renvoi in the
narrower sense..
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoiis that the
court of the forum, in determining the question before it,
must take into account the whole law of the other
jurisdiction, but also its rules as to conflict of laws, and then
apply the law to the actual question which the rules of the
other jurisdiction prescribe. This may be the law of the
forum. The doctrine of therenvoi has generally been
repudiated by the American authorities.
(b) The decision of two or more foreign systems of law,

provided it be certain that one of them is necessarily
competent, which agree in attributing the determination of a
question to the same system of law.
We note that Article 946 of the California Civil Code is its
conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on succession
and the conflict of laws rules of California are to be enforced
jointly, each in its own intended and appropriate sphere, the
principle cited In re Kaufman should apply to citizens living
in the State, but Article 946 should apply to such of its
citizens as are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law of the
domicile in the determination of matters with foreign element
involved is in accord with the general principle of American
law that the domiciliary law should govern in most matters or
rights which follow the person of the owner.
When a man dies leaving personal property in one or more
states, and leaves a will directing the manner of distribution of
the property, the law of the state where he was domiciled at
the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is
logical that, since the domiciliary rules control devolution of
the personal estate in case of intestate succession, the same
rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not
that the domiciliary has effect beyond the borders of the
domiciliary state. The rules of the domicile are recognized as
controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle

Page 33
that a dispostiton of a personal property, valid at the domicile

of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity which
was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property
take but little notice of boundary lines, the practical wisdom
and justice of the rule is more apparent than ever.
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law
of California. But as above explained the laws of California
have prescribed two sets of laws for its citizens, one for
residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the
California internal law prescribed for its citizens residing
therein, and enforce the conflict of laws rules for the citizens
domiciled abroad. If we must enforce the law of California as
in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above
explained, i.e., apply the internal law for residents therein,
and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no
law to the contrary in the place where the property is
situated" in Sec. 946 of the California Civil Code refers to
Article 16 of the Civil Code of the Philippines and that the
law to the contrary in the Philippines is the provision in said
Article 16 that the national law of the deceased should
govern. This contention can not be sustained. As explained in
the various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law on
conflict of laws in the California Civil Code, i.e., Article 946,
which authorizes the reference or return of the question to the
law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the
case, when a decedent is not domiciled in California, to the
law of his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer the case
back to California; such action would leave the issue
incapable of determination because the case will then be like
a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and
the country of his domicile. The Philippine court must apply
its own law as directed in the conflict of laws rule of the state
of the decedent, if the question has to be decided, especially
as the application of the internal law of California provides
no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent
recognizing them.
WHEREFORE, the decision appealed from is hereby
reversed and the case returned to the lower court with
instructions that the partition be made as the Philippine law
on succession provides. Judgment reversed, with costs
against appellees.
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK & TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, vs. EDWARD A. BELLIS, ET AL., heirs
SYLLABUS: Wills Succession Conflict of laws Renvoi

doctrine.The doctrine of renvoi is usually pertinent where
the decedent is a national of one country and is domiciled in
another. It does not apply to a case where the decedent was a
citizen of Texas and was domiciled therein at the time of his
death. So that, even assuming that Texas has a conflicts rule
providing that the domiciliary law should govern successional
rights, the same would not result in a reference back (renvoi)
to Philippine law, but it would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule, adopting the rule of
lex rei sitae, which calls for the application of the law of the
place where the properties are situated, renvoi would arise,
where the properties involved are found in the Philippines.
Same Foreign laws.In the absence of proof as to the
conflicts rule of Texas, it would be presumed to be the same as
our local conflicts rule.
FACTS: Amos G. Bellis, born in Texas, was "a citizen of the
State of Texas and of the United States." By his first wife,
Mary E. Mallen, whom he divorced, he had five legitimate
children: Edward A. Bellis, George Bellis (who predeceased
him in infancy), Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman; by his second wife, Violet Kennedy,
who survived him, he had three legitimate children: Edwin G.
Bellis. Walter S. Bellis and Dorothy Bellis; and finally, he had
three illegitimate children: Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in
the Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided in trust.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a
resident of San Antonio, Texas, U.S.A. His will was admitted
to probate in the Court of First Instance of Manila on
September 15, 1958.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice
to him, proof of service of which is evidenced by the registry
receipt submitted on April 27, 1964 by the executor.
CFI: The lower court, on April 30, 1964, issued an order
overruling the oppositions and approving the executor's final
account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national
law of the decedent, which in this case is Texas law, which did
not provide for legitimes.
ISSUE: WON Texas should apply.
HELD: YES. In this regard, the parties do not submit the case
on, nor even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L16749, January 31,
1963. Said doctrine is usually pertinent where the decedent
is a national of one country, and a domicile of another. In

Page 34
the present case, it is not disputed that the decedent was both a
national of Texas and a domicile thereof at the time of his
death. So that even assuming Texas has a conflict of law rule
providing that the domiciliary system (law of the domicile)
should govern, the same would not result in a reference back
(renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs
theory where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines.
In the absence, however, of proof as to the conflict of law rule
of Texas, it should not be presumed different from ours.
Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in
their arguments. Rather, they argue that their case falls under
the circumstances mentioned in the third paragraph of Article
17 in relation to Article 16 of the Civil Code.
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So ordered.
Plaintiff consented to defendants trip to the United States in

1974. She [defendant] wanted to earn money there because
she wanted to help her husband build a big house at the
Beverly Hills, Cebu City. Defendants testimony was
corroborated by Paulina Martinez, a former househelp of the
Zamoras.She always wanted to live in the Philippines before
her husband committed infidelity.
One reason why defendant seldom saw her husband while she
was in the Philippines was because of the infidelity committed
by her husband. No less than plaintiff himself admitted that he
has a child with a certain [x x x]. The court is also convinced
that he has two children with a certain [y y y]. The infidelity
on the part of the plaintiff was one of the contributing factors
which led to the estranged relationship between him and
defendant.
Petitioner appealed to the CA which affirmed the ruling of the
trial court.
ZAMORA VS CA GR. NO. 141917, FEB. 7, 2007

ISSUE:
FACTS: Petitioner and private respondent were married on
June 4, 1970 in Cebu City. After their marriage, they lived
together at No. 50-A Gorordo Avenue, Cebu City. The union
did not produce any child. In 1972, private respondent left for
the United States to work as a nurse. She returned to the
Philippines for a few months, then left again in 1974.
Thereafter, she made periodic visits to Cebu City until 1989,
when she was already a U.S. citizen.
Petitioner filed a complaint for declaration of nullity of
marriage anchored on the alleged "psychological incapacity"
of private respondent, as provided for under Article 36 of the
Family Code. To support his position, he alleged that his wife
was "horrified" by the mere thought of having children as
evidenced by the fact that she had not borne petitioner a child.
Furthermore, he also alleged that private respondent
abandoned him by living in the United States and had in fact
become an American citizen; and that throughout their
marriage they lived together for not more than three years.
On the other hand, private respondent denied that she refused
to have a child. She portrayed herself as one who loves
children as she is a nurse by profession and that she would
from time to time borrow her husbands niece and nephews to
care for them. She also faulted her husband for the breakup of
their marriage, alleging that he had been unfaithful to her. He
allegedly had two affairs with different women, and he begot
at least three children with them.
On June 22, 1995, the trial court dismissed the complaint for
[N]othing in the evidence of plaintiff show[s] that the
defendant suffered from any psychological incapacity or that
she failed to comply with her essential marital obligations.
There is no evidence of psychological incapacity on the part of
defendant so that she could not carry out the ordinary duties
required in married life. Neither has it been shown that there
was an incurable defect on the part of defendant.. . .
whether there can be a declaration of nullity of the marriage

between petitioner and private respondent on the ground of
psychological incapacity.
Petitioner argues as follows:
First, there is nothing in Santos v. CA, 7 upon which private
respondent relies, that requires as a conditio sine qua non the
presentation of expert opinion of psychologists and
psychiatrists in every petition filed under Article 36 of the
Family Code. This Court merely said in that case that "[t]he
well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be
helpful or even desirable." However, no expert opinion is
helpful or even desirable to determine whether private
respondent has been living abroad and away from her husband
for many years; whether she has a child; and whether she has
made her residence abroad permanent by acquiring U.S.
citizenship; and
Second, Article 36 of the Family Code provides that a
marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with
the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its
solemnization. Among the essential marital obligations
embraced by Articles 68 to 71 of the same Code is to
procreate children through sexual cooperation which is the
basic end of marriage. To live together under one roof for
togetherness spells the unity in marriage. The marriage had
been existing for twenty four years when private respondent
filed a legal separation case against petitioner. Throughout this
period, private respondent deliberately and obstinately refused
to comply with the essential marital obligation to live and
cohabit with her husband.
This Court rules as follows:

Page 35
It is true, as petitioner noted, that the case of Santos v. CA8 did

not specifically mention that the presentation of expert opinion
is a vital and mandatory requirement in filing a petition for the
declaration of nullity of marriage grounded on psychological
incapacity referred to under Article 36 of the Family Code.
Even in the subsequent case of Republic v. Court of
Appeals 9 (also known as the Molina case10 ), wherein the
Court laid down the guidelines11 in the interpretation and
application of the aforementioned article, examination of the
person by a physician in order for the former to be declared
psychologically incapacitated was likewise not considered a
requirement.12 What is important, however, as stated
in Marcos v. Marcos,13 is the presence of evidence that can
adequately establish the partys psychological condition. If the
totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of
the person concerned need not be resorted to.
Likewise, Section 2(d) of A.M. No. 02-11-10-SC or the Rule
on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, which took effect on
March 15, 2003, states:
(d) What to allege. A petition under Article 36 of the
Family Code shall specifically allege the complete facts
showing that either or both parties were psychologically
incapacitated from complying with the essential marital
obligations of marriage at the time of the celebration of
marriage even if such incapacity becomes manifest only after
its celebration.
The complete facts should allege the physical manifestations,
if any, as are indicative of psychological incapacity at the time
of the celebration of the marriage but expert opinion need not
be alleged.14
The rule is that the facts alleged in the petition and the
evidence presented, considered in totality, should be sufficient
to convince the court of the psychological incapacity of the
party concerned. Petitioner, however, failed to substantiate his
allegation that private respondent is psychologically
incapacitated. His allegations relating to her refusal to cohabit
with him and to bear a child was strongly disputed, as the
records undeniably bear out. Furthermore, the acts and
behavior of private respondent that petitioner cited occurred
during the marriage, and there is no proof that the former
exhibited a similar predilection even before or at the inception
of the marriage.
Thus, based on the foregoing, the Court finds no reason to
disturb the findings and conclusions reached by the trial court
and the CA.
WHEREFORE, the petition is DENIED.
SANTOS VS. COURT OF APPEALS PHIL 21 1995
FACTS: It was in Iloilo City where Leouel, who then held the
rank of First Lieutenant in the Philippine Army, first met Julia.
The meeting proved to be an eventful day for Leouel and
Julia. Later, the two exchanged vows before Municipal Trial

Court Judge Cornelio G. Lazaro of Iloilo City, followed,
shortly thereafter, by a church wedding. Leouel and Julia lived
with the latters parents at the J. Bedia Compound, La Paz,
Iloilo City, On 18 July 18 July 1987, Julia gave birth to a baby
boy, and he was christened Leouel Santos, Jr. The ecstasy,
however, did not last long. It was bound to happen, Leouel
averred, because of the frequent interference by Julias parents
into the young spouses family affairs. Occasionally, the
couple would also start a quarrel over a number of other
things, like when and where the couple should start living
independently from Julias parents or whenever Julia would
express resentment on Leouels spending a few days with his
own parents. Julia finally left for the United States of America
to work as a nurse despite Leouels pleas to so dissuade her,
Seven months after her departure, Julia called up Leouel for
the first time by long distance telephone. She promised to
return home upon the expiration of her contract in July 1989.
She never did. When Leouel got a chance to visit the United
States, where he underwent a training program under the
auspices of the Armed Forces of the Philippines from 10 April
up to 25 August 1990, he desperately tried to locate, or to
somehow get in touch with, Julia but all his efforts were of no
avail, Having failed to get Julia to somehow come home,
Leouel filed with the Regional Trial Court of Negros Oriental,
Branch 30, a complaint for Voiding of Marriage Under
Article 36 of the Family Code. Summons was served by
publication in a newspaper of general circulation in Negros
Oriental. Respondent Julia, in her answer (through counsel),
opposed the complaint and denied its allegations, claiming, in
main, that it was the petitioner who had, in fact, been
irresponsible and incompetent. After pretrial conferences had
repeatedly been set, albeit unsuccessfully, by the court, Julia
ultimately filed a manifestation, stating that she would neither
appear nor submit evidence. The court a quo finally dismissed
the complaint for lack of merit. Leouel appealed to the Court
of Appeals. The latter affirmed the decision of the trial court.
Leouel argues that the failure of Julia to return home, or at the
very least to communicate with him, for more than five years
are circumstances that clearly show her being psychologically
incapacitated to enter into married life.
ISSUE: WON psychological incapacitated is a valid ground to
terminate their marriage.
HELD: The Family Code did not define the term
psychological incapacity. Judge (Alicia Sempio) Diy
remarked that lack of judgment is more serious than
insufficient use of judgment and yet the latter would make the
marriage null and void and the former only voidable. Justice
Alicia V. SempioDiy, a member of the Code Committee, has
been quoted by Mr. Justice Josue N. Bellosillo in Salita vs.
Hon. Magtolis (G.R. No. 106429, 13 June 1984); thus: The
Committee did not give any examples of psychological
incapacity for fear that the giving of examples would limit the
applicability of the provision under the principle of ejusdem
generis. Rather, the Committee would like the judge to
interpret the provision on a casetocase basis, guided by
experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals
which, although not binding on the civil courts, may be given
persuasive effect since the provision was taken from Canon

Page 36
Law. Justice SempioDiy cites with approval the work of Dr.

Gerardo Veloso. a former Presiding Judge of the Metropolitan
Marriage Tribunal of the Catholic Archdiocese of Manila
(Branch I), who opines that psychological incapacity must be
characterized by (a) gravity (b) juridical antecedence, and (c)
incurability. The incapacity must be grave or serious such that
the party would be incapable of carrying out the ordinary
duties required in marriage; it must be rooted in the history of
the party antedating the marriage. although the overt
manifestations may emerge only after the marriage; and it
must be incurable or, even if it were otherwise, the cure would
be beyond the means of the party involved. There is hardly
any doubt that the intendment of the law has been to confine
the meaning of psychological incapacity to the most serious
cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to
the marriage. This psychologic condition must exist at the
time the marriage is celebrated. The law does not evidently
envision, upon the other hand, an inability of the spouse to
have sexual relations with the other. The factual settings in the
case at bench, in no measure at all, can come close to the
standards required to decree a nullity of marriage. Undeniably
and understandably, Leouel stands aggrieved, even desperate,
in his present situation. Regrettably, neither law nor society
itself can always provide all the specific answers to every
individual problem. WHEREFORE, the petition is DENIED.
SO ORDERED.
Dissenting opinion: Justice Padilla To my mind, it is clear that
private respondent has been shown to be psychologically
incapacitated to comply with at least one essential marital
obligation, i.e., that of living and cohabiting with her husband,
herein petitioner. On the other hand, it has not been shown that
petitioner does not deserve to live and cohabit with his wife,
herein private respondent. A spouses obligation to live and
cohabit with his/her partner in marriage is a basic ground rule
in marriage, unless there are overpowering compelling reasons
such as, for instance, an incurable contagious disease on the
part of a spouse or cruelty of one partner, bordering on
insanity. There may also be instances when, for economic and
practical reasons, husband and wife have to live separately,
but the marital bond between the spouses always remains.
breadwinner of the family; that in October 1986 the couple

had a very intense quarrel, as a result of which their
relationship was estranged; that in March 1987, Roridel
resigned from her job in Manila and went to live with her
parents in Baguio City; that a few weeks later, Reynaldo left
Roridel and their child, and had since then abandoned them;
that Reynaldo had thus shown that he was psychologically
incapable of complying with essential marital obligations and
was a highly immature and habitually quarrelsome individual
who thought of himself as a king to be served; and that it
would be to the couples best interest to have their marriage
declared null and void in order to free them from what
appeared to be an incompatible marriage from the start.
ISSUE: WON opposing and conflicting personalities is
equivalent to psychological incapacity
HELD: No.
In the present case, there is no clear showing to us that the
psychological defect spoken of is an incapacity. It appears to
us to be more of a difficulty, if not outright refusal or
neglect in the performance of some marital obligations.
Mere showing of irreconcilable differences and conflicting
personalities in no wise constitutes psychological incapacity.
The following are the guidelines as to the grounds of
psychological incapacity laid set forth in this case:
REPUBLIC VS. COURT OF APPEALS & MOLINA G.R.

NO. 108763. FEBRUARY 13, 1997
FACTS: This case was commenced on August 16, 1990 with
the filing by respondent Roridel O. Molina of a verified
petition for declaration of nullity of her marriage to Reynaldo
Molina.
Essentially, the petition alleged that Roridel and Reynaldo
were married on April 14, 1985 at the San Agustin Church in
Manila; that a son, Andre O. Molina was born; that after a
year of marriage, Reynaldo showed signs of immaturity and
irresponsibility as a husband and a father since he preferred
to spend more time with his peers and friends on whom he
squandered his money; that he depended on his parents for aid
and assistance, and was never honest with his wife in regard to
their finances, resulting in frequent quarrels between them;
that sometime in February 1986, Reynaldo was relieved of his
job in Manila, and since then Roridel had been the sole
burden of proof to show nullity belongs to the

plaintiff
root causes of the incapacity must be medically and
clinically inclined, alleged in
the complaint, sufficiently proven by experts and
clearly explained in the decision
such incapacity should be in existence at the time of
the marriage
such incapacity must be grave so as to disable the
person in complying with the essentials of marital
obligations of marriage
such incapacity must be embraced in Art. 68-71 as
well as Art 220, 221 and 225 of the Family Code
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts.
court shall order the prosecuting attorney and the
fiscal assigned to it to act on behalf of the state.
GRACE
J.
GARCIA,
A.K.A.
GRACE
J.
GARCIA-RECIO, PETITIONER, VS. REDERICK A.
RECIO, RESPONDENT. G.R. NO. 138322. OCTOBER 2,
2001.
Marriages; Husband and Wife; Divorce; Conflict of Laws;
Philippine law does not provide for absolute divorce,
hence, our courts cannot grant it, and a marriage between
two Filipinos cannot be dissolved even by a divorce
obtained abroad.At the outset, we lay the following
basic legal principles as the take-off points for our

Page 37
discussion. Philippine law does not provide for absolute

divorce; hence, our courts cannot grant it. A marriage
between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 15 and 17 of the
Civil Code. In mixed marriages involving a Filipino and a
foreigner, Article 26 of the Family Code allows the former
to contract a subsequent marriage in case the divorce is
validly obtained abroad by the alien spouse capacitating him
or her to remarry. A divorce obtained abroad by a couple,
who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.
FACTS: Rederick A. Recio, a Filipino, was married to Editha

Samson, an Australian citizen, in Malabon, Rizal. They lived
together as husband and wife in Australia. On May 18,
1989, a decree of divorce, purportedly dissolving the
marriage, was issued by an Australian family court.
respondent became an Australian citizen, as shown by a
"Certificate of Australian Citizenship" issued by the
Australian government. Petitioner a Filipina and respondent
were married on January 12, 1994 in Our Lady of Perpetual
Help Church in Cabanatuan City. In their application for a
marriage license, respondent was declared as "single" and
"Filipino."
On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage in the court a quo, on the
ground of bigamy respondent allegedly had a prior
subsisting marriage at the time he married her on January 12,
1994. She claimed that she learned of respondent's marriage to
Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he
had revealed to petitioner his prior marriage and its subsequent
dissolution. He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce
decree obtained in Australian in 1989; thus, he was legally
capacitated to marry petitioner in 1994
On July 7, 1998 or about five years after the couple's
wedding and while the suit for the declaration of nullity was
pending respondent was able to secure a divorce decree from
a family court in Sydney, Australia because the "marriage
ha[d] irretrievably broken down."
The trial court declared the marriage dissolved on the ground
that the divorce issued in Australia was valid and recognized
in the Philippines. It deemed the marriage ended, but not on
the basis of any defect in an essential element of the marriage;
that is, respondent's alleged lack of legal capacity to remarry.
Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage;
thus, there was no more martial union to nullify or annual
ISSUE: WON the divorce decree obtained abroad may be
recognized in the Philippines
HELD: Philippine law does not provide for absolute divorce;
hence, our courts cannot grant it. A marriage between two
Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 15 and 17 of the Civil Code. In

mixed marriages involving a Filipino and a foreigner, Article
26 of the Family Code allows the former to contract a
subsequent marriage in case the divorce is "validly obtained
abroad by the alien spouse capacitating him or her to
remarry." A divorce obtained abroad by a couple, who are
both aliens, may be recognized in the Philippines, provided it
is consistent with their respective national laws.
A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van Dorn v.
Romillo Jr. decrees that "aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they
are valid according to their national law." Therefore, before
a foreign divorce decree can be recognized by our courts, the
party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing
it. Presentation solely of the divorce decree is insufficient.
Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in
evidence. A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the
judgment itself. The decree purports to be a written act or
record of an act of an officially body or tribunal of a foreign
country
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official
record of a foreign country by either:
(1) an official publication or;
(2) a copy thereof attested by the officer having legal custody
of the document. If the record is not kept in the Philippines,
such copy must be:
(a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept
and;
(b) authenticated by the seal of his office.
The divorce decree between respondent and Editha
Samson appears to be an authentic one issued by an
Australian family court. However, appearance is not
sufficient; compliance with the aforemetioned rules on
evidence must be demonstrated.
. Petitioner insists that before a divorce decree can be admitted
in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code.
These articles read as follows:
"ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall
specify the following:

Page 38
"(5) If previously married, how, when and where the previous

marriage was dissolved or annulled;
"ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse
or the judicial decree of annulment or declaration of nullity of
his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity
of the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their
persons."
Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired
Australian citizenship in 1992. Naturalization is the legal act
of adopting an alien and clothing him with the political and
civil rights belonging to a citizen. Naturalized citizens, freed
from the protective cloak of their former states, don the attires
of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal
laws.
Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree, which
was validly admitted in evidence, adequately established his
legal capacity to marry under Australian law
Respondent's contention is untenable. Respondent presented
a decree nisi or an interlocutory decree a conditional or
provisional judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute divorce
may follow after the lapse of the prescribed period during
which no reconciliation is affected.
Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict remarriage.
Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted
on the ground of adultery may be prohibited from remarrying
again. The court may allow a remarriage only after proof of
good behaviour.
On its face, the herein Australian divorce decree contains a
restriction that reads:
"1. A party to a marriage who marries again before this
decree becomes absolute (unless the other party has died)
commits the offence of bigamy."
This quotation bolsters our contention that the divorce

obtained by respondent may have been restricted. It did
not absolutely establish his legal capacity to remarry
according to his national law. Hence, we find no basis for
the ruling of the trial court, which erroneously assumed that
the Australian divorce ipso facto restored respondent's
capacity to remarry despite the paucity of evidence on this
matter.
We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to
his civil status based on Section 48, Rule 39 of the Rules of
Court, for the simple reason that no proof has been presented
on the legal effects of the divorce decree obtained under
Australian laws.
Petitioner argues that the certificate of legal capacity required
by Article 21 of the Family Code was not submitted together
with the application for a marriage license. According to her,
its absence is proof that respondent did not have legal capacity
to remarry.
We clarify. To repeat, the legal capacity to contract
marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the
Family Code would have been sufficient to establish the legal
capacity of respondent, had he duly presented it in court. A
duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien
applicant for a marriage license
Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioner's contention that the court a
quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the
Australian personal law governing his status; or at the very
least, to prove his legal capacity to contract the second
marriage.
Neither can we grant petitioner's prayer to declare her
marriage to respondent null and void on the ground of bigamy.
After all, it may turn out that under Australian law, he was
really capacitated to marry petitioner as a direct result of the
divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive
evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may
declare a nullity of the parties' marriage on the ground of
bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one
in Malabon, Metro Manila dated March 1, 1987 and the other,
in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a
quo for the purpose of receiving evidence which conclusively
show respondent's legal capacity to marry petitioner; and
failing in that, of declaring the parties' marriage void on the

Page 39
ground of bigamy, as above discussed. No costs. SO

ORDERED.
PEREZ vs. CA GR NO. 162580, JAN. 27, 2006
Parties herein would have this Court duplicate the
feat of King Solomon who was hailed in Biblical times for his
sagacious, if, at times unorthodox, manner of resolving
conflicts, the most celebrated case being that when his
authority was invoked to determine the identity of the real
mother as between two women claiming the same
infant. Since there could only be one mother, the daunting task
that confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of
deciding, as between father and mother, who should have
rightful custody of a child who bears in his person both their
genes.
While there is a provision of law squarely in point, the two
courts whose authority have been invoked to render a decision
have arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the
trial court, on the one hand, and the appellate, on the other.
Ray Perez, private respondent, is a doctor of medicine
practicing in Cebu while Nerissa, his wife who is petitioner
herein, is a registered nurse. They were married
in Cebu on December 6, 1986. After six miscarriages, two
operations and a high-risk pregnancy, petitioner finally gave
birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October
1988, used part of her earnings to build a modest house
in Mandaue City, Cebu. She also sought medical attention for
her successive miscarriages in New York. She became a
resident alien in February 1992. Private respondent stayed
with her in the U.S. twice and took care of her when she
became pregnant. Unlike his wife, however, he had only a
tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived
in Cebu. After a few weeks, only Nerissa returned to
the U.S. She alleged that they came home only for a five-week
vacation and that they all had round-trip tickets. However, her
husband stayed behind to take care of his sick mother and
promised to follow her with the baby. According to Ray, they
had agreed to reside permanently in the Philippines but once
Nerissa was in New York, she changed her mind and
continued working. She was supposed to come back
immediately after winding up her affairs there.
hen Nerissa came home a few days before Ray IIs first
birthday, the couple was no longer on good terms. That their
love for each other was fading became apparent from their
serious quarrels. Petitioner did not want to live near her inlaws and rely solely on her husbands meager income of
P5,000.00.1 She longed to be with her only child but he was
being kept away from her by her husband. Thus, she did not
want to leave RJ (Ray Junior) with her husband and inlaws. She wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he
could raise his son even as he practiced his profession. He
maintained that it would not be difficult to live here since they
have their own home and a car. They could live comfortably
on his P 15,000.00 monthly income2 as they were not
burdened with having to pay any debts.
Petitioner was forced to move to her parents home
on Guizo Street in Mandaue. Despite mediation by the priest
who solemnized their marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for
habeas corpus3 asking respondent Ray C. Perez to surrender
the custody of their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order
awarding custody of the one-year old child to his mother,
Nerissa Perez, citing the second paragraph of Article 213 of
the Family Code which provides that no child under seven
years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise
Upon appeal by Ray Perez, the Court of Appeals, on
September 27, 1994, reversed the trial courts order and
awarded custody of the boy to his father. Petitioners motion
for reconsideration having been denied, she filed the instant
petition for review where the sole issue is the custody of Ray
Perez II, now three years old.
Respondent court differed in opinion from the trial court and
ruled that there were enough reasons to deny Nerissa Perez
custody over Ray II even if the child is under seven years
old. It held that granting custody to the boys father would be
for the childs best interest and welfare.
The wisdom and necessity for the exercise of joint
parental authority need not be belabored. The father and the
mother complement each other in giving nurture and
providing that holistic care which takes into account the
physical, emotional, psychological, mental, social and spiritual
needs of the child. By precept and example, they mold his
character during his crucial formative years.
However, the Courts intervention is sought in order that
a decision may be made as to which parent shall be given
custody over the young boy. The Courts duty is to determine
whether Ray Perez II will be better off with petitioner or with
private respondent. We are not called upon to declare which
party committed the greater fault in their domestic quarrel.
Article 213 of the Family Code is the applicable law. It
provides:
ART. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.

Page 40
No child under seven years of age shall be separated from the

mother, unless the court finds compelling reasons to order
otherwise.
Since the Code does not qualify the word separation to
mean legal separation decreed by a court, couples who are
separated in fact, such as petitioner and private respondent, are
covered within its terms.8
The Revised Rules of Court also contains a similar
provision. Rule 99, Section 6 (Adoption and Custody of
Minors) provides:
SEC. 6. Proceedings as to child whose parents are separated.
Appeal. - When husband and wife are divorced or living
separately and apart from each other, and the questions as to
the care, custody, and control of a child or children of their
marriage is brought before a Court of First Instance by petition
or as an incident to any other proceeding, the court, upon
hearing the testimony as may be pertinent, shall award the
care, custody, and control of each such child as will be for its
best interest, permitting the child to choose which parent it
prefers to live with if it be over ten years of age, unless the
parent chosen be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness, incapacity, or poverty
x x x. No child under seven years of age shall be separated
from its mother, unless the court finds there are compelling
reasons therefor.
The rationale for awarding the custody of children
younger than seven years of age to their mother was explained
by the Code Commission:
The general rule is recommended in order to avoid many a
tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by
the rule has to be for compelling reasons for the good of the
child; those cases must indeed be rare, if the mothers heart is
not to be unduly hurt. If she has erred, as in cases of adultery,
the penalty of imprisonment and the divorce decree (relative
divorce) will ordinarily be sufficient punishment for
her. Moreover, moral dereliction will not have any effect upon
the baby who is as yet unable to understand her situation.
(Report of the Code Commission, p. 12)
The Family Code, in reverting to the provision of the Civil
Code that a child below seven years old should not be
separated from the mother (Article 363), has expressly
repealed the earlier Article 17, paragraph three of the Child
and Youth Welfare Code (Presidential Decree No. 603) which
reduced the childs age to five years.
The general rule that a child under seven years of age shall not
be separated from his mother finds its raison detre in the basic
need of a child for his mothers loving care. 14 Only the most
compelling of reasons shall justify the courts awarding the
custody of such a child to someone other than his mother, such
as her unfitness to exercise sole parental authority. In the past
the following grounds have been considered ample
justification to deprive a mother of custody and parental
authority: neglect, abandonment, 15 unemployment and

immorality,
habitual
drunkenness
drug
addiction,
maltreatment of the child, insanity and being sick with a
communicable disease.
In the case at bench, financial capacity is not a determinative
factor inasmuch as both parties have demonstrated that they
have ample means. Respondent court stated that petitioner has
no permanent place of work in the U.S.A. and has taken this
point against her. The records, however, show that she is
employed in a New York hospital22 and was, at the time the
petition was filed, still abroad. 23 She testified that she intends
to apply for a job elsewhere, presumably to improve her work
environment and augment her income, as well as for
convenience.24 The Court takes judicial notice of the fact that
a registered nurse, such as petitioner, is still very much in
demand in the United States. Unlike private respondent, a
doctor who by his own admission could not find employment
there, petitioner immediately got a job in New
York. Considering her skill and experience, petitioner should
find no difficulty in obtaining work elsewhere, should she
desire to do so.
The decision under review casts doubt on petitioners
capability to take care of the child, particularly since she
works on twelve-hour shifts thrice weekly, at times, even at
night. There being no one to help her look after the child, it is
alleged that she cannot properly attend to him. This conclusion
is as unwarranted as it is unreasonable. First, her present work
schedule is not so unmanageable as to deprive her of quality
time for Ray II. Quite a number of working mothers who are
away from home for longer periods of time are still able to
raise a family well, applying time management principles
judiciously. Second, many a mother, finding herself in such a
position, has invited her own mother or relative to join her
abroad, providing the latter with plane tickets and liberal
allowances, to look after the child until he is able to take care
of himself. Others go on leave from work until such time as
the child can be entrusted to day-care centers. Delegating child
care temporarily to qualified persons who run day-care centers
does not detract from being a good mother, as long as the
latter exercises supervision, for even in our culture, children
are often brought up by housemaids or yayas under the eagle
eyes of the mother. Third, private respondents work schedule
was not presented in evidence at the trial. Although he is a
general practitioner, the records merely show that he maintains
a clinic, works for several companies on retainer basis and
teaches part-time.25 Hence, respondent courts conclusion that
his work schedule is flexible (and h)e can always find time for
his son26 is not well-founded. Fourth, the fact that private
respondent lives near his parents and sister is not crucial in
this case. Fifth, petitioners work schedule cited in the
respondent
courts
decision
is
not
necessarily
permanent. Hospitals work in shifts and, given a mothers
instinctive desire to lavish upon her child the utmost care,
petitioner may be expected to arrange her schedule in such a
way as to allocate time for him. Finally, it does not follow that
petitioner values her career more than her family simply
because she wants to work in the United States. There are any
number of reasons for a persons seeking a job outside the
country, e.g. to augment her income for the familys benefit
and welfare, and for psychological fulfillment, to name a few.

Page 41
In the instant case, it has been shown that petitioner earned

enough from her job to be able to construct a house for the
family in Mandaue City. The record describes sketchily the
relations between Ray and Nerissa Perez. The transcripts of
the three hearings are inadequate to show that petitioner did
not exert earnest efforts and make sacrifices to save her
marriage.
It is not difficult to imagine how heart-rending it is for a
mother whose attempts at having a baby were frustrated
several times over a period of six years to finally bear one,
only for the infant to be snatched from her before he has even
reached his first year. The mothers role in the life of her child,
such as Ray II, is well-nigh irreplaceable. In prose and poetry,
the depth of a mothers love has been immortalized times
without number, finding as it does, its justification, not in
fantasy but in reality.
WHEREFORE, the petition for review is
GRANTED. The decision of the Court of Appeals
dated September 27, 1994 as well as its Resolution
dated January 24, 1995 are hereby REVERSED and SET
ASIDE. The Order of the trial court dated August 27, 1993 is
hereby REINSTATED. Custody over the minor Ray Z. Perez
II is awarded to his mother, herein petitioner Nerissa Z.
Perez. This decision is immediately executory.
VALERIO E. KALAW, petitioner, vs. MA. ELENA
FERNANDEZ, respondent. G.R. No. 166357. January 14,
2015.
FACTS: In the case at bar, petitioner failed to prove that his
wife (respondent) suffers from psychological incapacity. He
presented the testimonies of two supposed expert witnesses
who concluded that respondent is psychologically
incapacitated, but the conclusions of these witnesses were
premised on the alleged acts or behavior of respondent which
had not been sufficiently proven. Petitioners experts heavily
relied on petitioners allegations of respondents constant
mahjong sessions, visits to the beauty parlor, going out with
friends, adultery, and neglect of their children. Petitioners
experts opined that respondents alleged habits, when
performed constantly to the detriment of quality and quantity
of time devoted to her duties as mother and wife, constitute a
psychological incapacity in the form of NPD.
But petitioners allegations, which served as the
bases or underlying premises of the conclusions of his experts,
were not actually proven. In fact, respondent presented
contrary evidence refuting these allegations of the petitioner.
Given the insufficiency of evidence that respondent actually
engaged in the behaviors described as constitutive of NPD,
there is no basis for concluding that she was indeed
psychologically incapacitated. After poring over the records of
the case, the Court finds no factual basis for the conclusion of
psychological incapacity. There is no error in the CAs
reversal of the trial courts ruling that there was psychological
incapacity. The trial courts Decision merely summarized the
allegations, testimonies, and evidence of the respective parties,
but it did not actually assess the veracity of these allegations,
the credibility of the witnesses, and the weight of the
evidence. The trial court did not make factual findings which
can serve as bases for its legal conclusion of psychological

incapacity.
ISSUE: WON the marriage may be declared null and void
under Article 36 of the Family Code.
HELD: Psychological incapacity as a ground for the nullity of
marriage under Article 36 of the Family Code refers to a
serious psychological illness afflicting a party even prior to the
celebration of the marriage that is permanent as to deprive the
party of the awareness of the duties and responsibilities of the
matrimonial bond he or she was about to assume. Although
the Family Code has not defined the term psychological
incapacity, the Court has usually looked up its meaning by
reviewing the deliberations of the sessions of the Family Code
Revision Committee that had drafted the Family Code in order
to gain an insight on the provision. It appeared that the
members of the Family Code Revision Committee were not
unanimous on the meaning, and in the end they decided to
adopt the provision with less specificity than expected in
order to have the law allow some resiliency in its
application. Illustrative of the less specificity than expected
has been the omission by the Family Code Revision
Committee to give any examples of psychological incapacity
that would have limited the applicability of the provision
conformably with the principle of ejusdem generis, because
the Committee desired that the courts should interpret the
provision on a case to case basis, guided by experience, the
findings of experts and researchers in psychological
disciplines, and the decisions of church tribunals that had
persuasive effect by virtue of the provision itself having been
taken from the Canon Law.
Although the petitioner, as the plaintiff, carried the
burden to prove the nullity of the marriage, the respondent, as
the defendant spouse, could establish the psychological
incapacity of her husband because she raised the matter in her
answer. The courts are justified in declaring a marriage null
and void under Article 36 of the Family Code regardless of
whether it is the petitioner or the respondent who imputes the
psychological incapacity to the other as long as the imputation
is fully substantiated with proof. Indeed, psychological
incapacity may exist in one party alone or in both of them, and
if psychological incapacity of either or both is established, the
marriage has to be deemed null and void.
In this case, the marriage never existed from the
beginning because the respondent was afflicted with
psychological incapacity at and prior to the time of the
marriage. Hence, the Court should not hesitate to declare the
nullity of the marriage between the parties. To stress, our
mandate to protect the inviolability of marriage as the basic
foundation of our society does not preclude striking down a
marital union that is illequipped to promote family life.

Page 42

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CONFLICT OF LAWS CASES

Atty. Cecilio Duka

fully in accordance with the laws of the state of Nevada and

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

1925, can be taken judicial notice of by us, without proof of

execution of the will was not established. The only evidence

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

a will and , therefore the will referred to therein cannot be

QUERUBIN VS. QUERUBIN 47 PHIL O.G. 316

her mother, in immoral surroundings, and that the father was

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

provides the grounds for which change of first name may be

ordinarily terminable at his own will, such as his being

1. The petitioner finds the first name or nickname to be

A persons sex is an essential factor in marriage and family

Petitioners basis in praying for the change of his first name

However, marriage, one of the most sacred social institutions,

Before a person can legally change his given name, he must

The changes sought by petitioner will have serious and Wide

REPUBLIC OF THE PHILIPPINES VS JENNIFER

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

for correction of entries in birth certificate filed by Jennifer

Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

Respondent, on the other hand presented twenty-two

Section 52. Powers and functions of the Commission on

c) A certificate of birth of Ronald Allan Poe,

"Each Commission shall decide by a majority vote of all its

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

Supreme Court en banc on 18 April 1992, would support this

The Local Setting - from Spanish

Rule 13. How Initiated. - An election contest is initiated by the

There was no such term as "Philippine citizens" during the

Rule 14. Election Protest. - Only the registered candidate for

Spanish laws on citizenship were traced back to the Novisima

The rules categorically speak of the jurisdiction of the tribunal

The Spanish Constitution of 1876 was never extended to

The Citizenship Issue

(d) Those who, without such papers, may have

The earliest understanding of citizenship was that given by

The year 1898 was another turning point in Philippine

The concept of citizenship had undergone changes over the

The Treaty of Paris was entered into on 10 December 1898

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

"The civil rights and political status of the native inhabitants

(2) Those born in the Philippines Islands of foreign parents

"Provided, That the Philippine Legislature is hereby

(2) Those whose fathers or mothers are citizens of the

Under the Jones Law, a native-born inhabitant of the

For good measure, Section 2 of the same article also

1) A subject of Spain on 11 April 1899,

"A female citizen of the Philippines who marries an alien

2) Residing in the Philippines on said date, and,

(3) Those who elect Philippine citizenship pursuant to the

The 1987 Constitution generally adopted the provisions

Section 1, Article III, 1935 Constitution. The following are

The following are citizens of the Philippines:

//DAN GLORIA//KAT RAMIREZ//NICO DE GUZMAN//CHELLA LOPEZ //

(2) Those whose fathers or mothers are citizens of the

3. Allan F. Poe and Bessie Kelley were married to

(3) Those born before January 17, 1973 of Filipino

4. The father of Allan F. Poe was Lorenzo Poe; and

(4) Those who are naturalized in accordance with law.

Section 2, Article VII, of the 1987 Constitution