G.R. No.

137329

August 9, 2000

ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M.

SERIO, petitioners,
vs.
COMMISSION ON ELECTIONS and VICENTE Y. EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for seeking and holding
elective public office, in order to give candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office seekers' qualifications
and fitness for the job they aspire for. Inasmuch as Vicente Y. Emano has proven that he,
together with his family, (1) had actually resided in a house he bought in 1973 in Cagayan de
Oro City; (2) had actually held office there during his three terms as provincial governor of
Misamis Oriental, the provincial capitol being located therein; and (3) has registered as voter
in the city during the period required by law, he could not be deemed "a stranger or
newcomer" when he ran for and was overwhelmingly voted as city mayor. Election laws must
be liberally construed to give effect to the popular mandate.

On June 14, 1997, while still the governor of Misamis Oriental, Emano executed a Voter
Registration Record in Cagayan de Oro City (geographically located in the Province of
Misamis Oriental), a highly urbanized city, in which he claimed 20 years of residence. On
March 25, 1998, he filed his Certificate of Candidacy for mayor of the city, stating therein that
his residence for the preceding two years and five months was at 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano, was Erasmo
B. Damasing, counsel of herein petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno
Sr., Generoso Q. Eligan and Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a
Petition before the Comelec, docketed as SPA No. 98-298, in which they sought the
disqualification of Emano as mayoral candidate, on the ground that he had allegedly failed to
meet the one-year residence requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor. Thus, on May 29, 1998,
petitioners filed another Petition before the Comelec, this time for quo warranto,3 in which
they sought (1) the annulment of the election of private respondent; and (2) the proclamation
of Erasmo B. Damasing, who had garnered the next highest number of votes, as the duly
elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied the Petition for
Disqualification. Upon petitioners' Motion for Reconsideration and Motion for Consolidation,
the two cases were consolidated.4

The Case

Ruling of the Comelec

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to set aside
the January 18, 1999 Resolution1 of the Commission on Elections (Comelec) en banc in SPA
No. 98-298, which upheld the July 14, 1998 Resolution 2 of the Comelec First Division. The
assailed Resolutions ruled that Private Respondent Vicente Y. Emano possessed the minimum
period of residence to be eligible to vote in Cagayan de Oro City, as well as be voted mayor
thereof.

As earlier stated, the Comelec en banc upheld the findings and conclusions of the First
Division, holding that "[t]he records clearly show that the respondent is an actual resident of
Cagayan de Oro City for such a period of time necessary to qualify him to run for mayor
therein. This fact is clearly established by the respondent having a house in the city which has
been existing therein since 1973 and where his family has been living since then."

The Facts
The pertinent facts of the case, as culled from the records, are as follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed provincial
governor of Misamis Oriental. It was his third consecutive term as governor of the province.
In his Certificate of Candidacy dated March 12, 1995, his residence was declared to be in
Tagoloan, Misamis Oriental.

Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official from residing and/or
registering as a voter in a highly urbanized city whose residents are not given the right to vote
for and be elected to a position in the province embracing such highly urbanized city as long
as he has complied with the requirements prescribed by law in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the petitioners showing that the
respondent was a registered voter as of March 13, 1995 in Precinct No. 12, Barangay
Poblacion, Tagoloan, Misamis Oriental bolster the petitioner's argument that the respondent is

not a resident [or a] registered voter in Cagayan de Oro City since registration in said Precinct
No. 12 does not preclude the respondent from registering anew in another place."
Hence, this recourse5 before this Court.
Issues
In their Memorandum,6 petitioners submit that the main issue is whether the "Comelec gravely
abused its discretion amounting to lack of jurisdiction in issuing the questioned Resolutions."
Allegedly, the resolution of this issue would depend on the following: 7
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his certificate
of candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the
May 11, 1998 election;
(b) asserting under oath [that he was] qualified to act as governor of said
province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of Misamis
Oriental,
precluded him from acquiring a bona fide domicile of choice for at least one (1) year
in Cagayan de Oro City prior to the May 11, 1998 elections, as to disqualify him for
being a candidate for city mayor of said City.

voters prior to the May 11, 1998 election as to attain notoriety, notwithstanding
which they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1) whether private
respondent had duly established his residence in Cagayan de Oro City at least one year prior to
the May 11, 1998 elections to qualify him to run for the mayorship thereof; and (2) if not,
whether Erasmo Damasing, the candidate who had received the second highest number of
votes, should be proclaimed mayor of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners was deliberated upon
by the Court. We note that petitioners pray, among others, for judgment "declaring Atty.
Erasmo B. Damasing as entitled to be proclaimed winner as mayor in the May 11, 1998
elections in Cagayan de Oro City."8 And yet, Damasing is not a party to the instant "Petition
for Certiorari pursuant to Rule[s] 64 and 65" brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor general or
(2) a public prosecutor or (3) a person claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another.9 A reading of the Rules shows that
petitioners, none of whom qualify under any of the above three categories, are without legal
standing to bring this suit.

2. Differently stated, whether or not Emano's securing a residence certificate in

Cagayan de Oro City, holding offices as governor of Misamis Oriental in the Capitol
Building located in Cagayan de Oro City and having a house therein where [he had]
stay[ed] during his tenure as governor, and registering as a voter in said City in June
1997, would be legally sufficient, as against the undisputed facts above enumerated,
to constitute a change of his domicile of birth in Tagoloan, Misamis Oriental in favor
of a new domicile of choice in Cagayan de Oro City for at least one (1) year for
purposes of qualifying him to run for city mayor in the May 11, 1998 elections.

However, the present Petition finds its root in two separate cases filed before the Comelec: (1)
SPC 98-298 for disqualification and (2) EPC 98-62 for quo warranto. Under our election laws
and the Comelec Rules of Procedure, any voter may file a petition to disqualify a candidate on
grounds provided by law,10 or to contest the election of a city officer on the ground of
ineligibility or disloyalty to the Republic. 11 The petitioners herein, being "duly-registered
voters" of Cagayan de Oro City, therefore satisfy the requirement of said laws and rules. 12

3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de Oro
City in the May 11, 1998 elections, who received the second highest number of
votes, can be declared winner, considering that respondent Emano was disqualified
to run for and hold said office and considering that his disqualification or
ineligibility had been extensively brought to the attention and consciousness of the

Petitioners argue that private respondent maintains his domicile in Tagoloan, Misamis
Oriental, not in Cagayan de Oro City, as allegedly shown by the following facts: (1) he had
run and won as governor of the province of Misamis Oriental for three consecutive terms
immediately preceding the 1998 elections; (2) in the pleadings he filed in connection with an
election protest against him relating to the 1995 election, he had stated that he was a resident

Main Issue: Residence Qualification for Candidacy

of Tagoloan, Misamis Oriental; (3) he had fully exercised the powers and prerogatives of
governor until he filed his Certificate of Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial governor, private respondent
remained a resident of the province. They aver that residence is a continuing qualification that
an elective official must possess throughout his term. Thus, private respondent could not have
changed his residence to Cagayan de Oro City while he was still governor of Misamis
Oriental.
Petitioners further contend that the following were not sufficient to constitute a change of
domicile: having a house in Cagayan de Oro City, residing therein while exercising one's
office as governor (the city being the seat of government of the province), securing a residence
certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and physically resided in
Cagayan de Oro City while serving as provincial governor for three consecutive terms, since
the seat of the provincial government was located at the heart of that city. 13 He also avers that
one's choice of domicile is a matter of intention, and it is the person concerned who would be
in the best position to make a choice. In this case, Emano decided to adopt Cagayan de Oro
City as his place of residence after the May 1995 elections. In fact, in January 1997, he
secured his Community Tax Certificate at the City Treasurer's Office, stating therein that he
was a resident of 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City.
During the general registration of voters in June 1997, he registered in one of the precincts of
Gusa, Cagayan de Oro City. This meant that, at the time, Emano had been a voter of the city
for the minimum period required by law. No one has ever challenged this fact before any
tribunal.
Private respondent contends further that his transfer of legal residence did not ipso facto divest
him of his position as provincial governor. First, there is no law that prevents an elected
official from transferring residence while in office. Second, an elective official's transfer of
residence does not prevent the performance of that official's duties, especially in private
respondent's case in which the seat of government became his adopted place of residence.
Third, as ruled in Frivaldo v. Comelec, 14 the loss of any of the required qualifications for
election merely renders the official's title or right to office open to challenge. In Emano's case,
no one challenged his right to the Office of Provincial Governor when he transferred his
residence to Cagayan de Oro City. Naturally, he continued to discharge his functions as such,
until he filed his candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed in the election result,
must be respected. He is not, after all, a stranger to the city, much less to its voters. During his
three terms as governor of Misamis Oriental, his life and actuations have been closely
interwoven with the pulse and beat of Cagayan de Oro City.

Public Respondent Comelec relies essentially on Romualdez-Marcos v. Comelec15 in its

Memorandum16 which supports the assailed Resolutions, and which has been filed in view of
the solicitor general's Manifestation and Motion in Lieu of Comment. 17 Thus, the poll body
argues that "x x x the fact of residence x x x ought to be decisive in determining whether or
not an individual has satisfied the Constitution's residency qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the Local Government Code
(LGC) of 1991,18 which provides for the qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province x x x where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of residence in the area in which
they seek to be elected, the Constitution or the law intends to prevent the possibility of a
"stranger or newcomer unacquainted with the conditions and needs of a community and not
identified with the latter from [seeking] an elective office to serve that community." 19 Such
provision is aimed at excluding outsiders "from taking advantage of favorable circumstances
existing in that community for electoral gain." 20 Establishing residence in a community merely
to meet an election law requirement defeats the purpose of representation: to elect through the
assent of voters those most cognizant and sensitive to the needs of the community. This
purpose is "best met by individuals who have either had actual residence in the area for a
given period or who have been domiciled in the same area either by origin or by choice." 21
Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,22 this Court ruled that private respondent
therein, now Representative Rodolfo E. Aguinaldo of the Third District of Cagayan, had duly
proven his change of residence from Gattaran, Cagayan (part of the First District) to
Tuguegarao, Cagayan (part of the Third District in which he sought election as congressman).
He proved it with the following facts: (1) in July 1990, he leased and lived in a residential
apartment in Magallanes Street, Tuguegarao, Cagayan; (2) in July 1995, he leased another
residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan; (3) the January 18, 1998
Certificate of Marriage between Aguinaldo and his second wife, Lerma Dumaguit; (4) the
Certificate of Live Birth of his second daughter; and (5) various letters addressed to him and
his family showed that he had been a resident of Tuguegarao for at least one year immediately
preceding the May 1998 elections. The Court also stated that it was not "of much importance
that in his [Aguinaldo's] certificates of candidacy for provincial governor in the elections of
1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran." 23

In the case at bar, the Comelec found that private respondent and his family had actually been
residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in
1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis
Oriental, he physically lived in that city, where the seat of the provincial government was
located. In June 1997, he also registered as voter of the same city. Based on our ruling in
Mamba-Perez, these facts indubitably prove that Vicente Y. Emano was a resident of Cagayan
de Oro City for a period of time sufficient to qualify him to run for public office therein.
Moreover, the Comelec did not find any bad faith on the part of Emano in his choice of
residence.

To petitioners' argument that Emano could not have continued to qualify as provincial
governor if he was indeed a resident of Cagayan de Oro City, we respond that the issue before
this Court is whether Emano's residence in the city qualifies him to run for and be elected as
mayor, not whether he could have continued sitting as governor of the province. There was no
challenge to his eligibility to continue running the province; hence, this Court cannot make
any pronouncement on such issue. Considerations of due process prevent us from adjudging
matters not properly brought to us. On the basis, however, of the facts proven before the
Comelec, we hold that he has satisfied the residence qualification required by law for the
mayorship of the city.

Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city
whose voters cannot participate in the provincial elections. Such political subdivisions and
voting restrictions, however, are simply for the purpose of parity in representation. The
classification of an area as a highly urbanized or independent component city, for that matter,
does not completely isolate its residents, politics, commerce and other businesses from the
entire province -- and vice versa -- especially when the city is located at the very heart of the
province itself, as in this case.

We stress that the residence requirement is rooted in the desire that officials of districts or
localities be acquainted not only with the metes and bounds of their constituencies but, more
important, with the constituents themselves -- their needs, difficulties, aspirations, potentials
for growth and development, and all matters vital to their common welfare. The requisite
period would give candidates the opportunity to be familiar with their desired constituencies,
and likewise for the electorate to evaluate the former's qualifications and fitness for the offices
they seek.

Undeniably, Cagayan de Oro City was once an integral part of Misamis Oriental and remains a
geographical part of the province. Not only is it at the center of the province; more important,
it is itself the seat of the provincial government. As a consequence, the provincial officials who
carry out their functions in the city cannot avoid residing therein; much less, getting
acquainted with its concerns and interests. Vicente Y. Emano, having been the governor of
Misamis Oriental for three terms and consequently residing in Cagayan de Oro City within
that period, could not be said to be a stranger or newcomer to the city in the last year of his
third term, when he decided to adopt it as his permanent place of residence.

In other words, the actual, physical and personal presence of herein private respondent in
Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor
and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic,
academic and technical approach to the residence requirement does not satisfy this simple,
practical and common-sense rationale for the residence requirement.

Significantly, the Court also declared in Mamba-Perez that "although private respondent
declared in his certificates of candidacy prior to the May 11, 1998 elections that he was a
resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District
not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years
since July 1990. His claim that he ha[s] been a resident of Tuguegarao since July 1990 is
credible considering that he was governor from 1988 to 1998 and, therefore, it would be
convenient for him to maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan."
Similarly in the instant case, private respondent was actually and physically residing in
Cagayan de Oro City while discharging his duties as governor of Misamis Oriental. He owned
a house in the city and resided there together with his family. He even paid his 1998
community tax and registered as a voter therein. To all intents and purposes of the Constitution
and the law, he is a resident of Cagayan de Oro City and eligible to run for mayor thereof.

Interpretation to Favor Popular Mandate

There is no question that private respondent was the overwhelming choice of the people of
Cagayan de Oro City.1wphi1 He won by a margin of about 30,000 votes. 24 Thus, we find it
apt to reiterate the principle that the manifest will of the people as expressed through the ballot
must be given fullest effect. In case of doubt, political laws must be interpreted to give life and
spirit to the popular mandate.25 Verily, in Frivaldo v. Comelec,26 the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving effect to the sovereign
will in order to ensure the survival of our democracy. In any action involving the possibility of
a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the
issues in a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the majority.
To successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote."

In the same vein, we stated in Alberto v. Comelec27 that "election cases involve public interest;
thus, laws governing election contests must be liberally construed to the end that the will of
the people in the choice of public officials may not be defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular sovereignty than to be right in
complex but little understood legalisms."28
In sum, we hold that Respondent Comelec cannot be faulted with abuse, much less grave
abuse, of discretion in upholding private respondent's election.
Corollary Issue: Effect of Disqualification of Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that the second one posited by
petitioners has become academic and need not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec Resolutions
AFFIRMED. Costs against petitioners.

Issue: Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on 22 April
2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI
of the Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one
seat constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the partylist elections? If not, can the major political parties be barred from participating in the partylist elections?

Held: WHEREFORE we PARTIALLY GRANT the petition. We SET ASIDE the

Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the
Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent
threshold in the distribution of additional party-list seats.

SO ORDERED.

BANAT v COMELEC G.R. No. 179271 April 21, 2009

Facts: On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the
NBC. BANAT filed its petition because "the Chairman and the Members of the COMELEC
have recently been quoted in the national papers that the COMELEC is duty bound to and
shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating
party-list seats."
BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution
No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC,
to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 0760 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941
(R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the
proceedings of the NBC.

Ratio: Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire
20% allocation of party-list representatives found in the Constitution. However, we cannot
allow the continued existence of a provision in the law which will systematically prevent the
constitutionally allocated 20% party-list representatives from being filled. The three-seat cap,
as a limitation to the number of seats that a qualified party-list organization may occupy,
remains a valid statutory device that prevents any party from dominating the party-list
elections.
We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two
percent threshold makes it mathematically impossible to achieve the maximum number
of available party list seats when the number of available party list seats exceeds 50. The
continued operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling.
In declaring the two percent threshold unconstitutional, we do not limit our allocation
of additional seats to the two-percenters. The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900,
the total number of votes cast for party-list candidates. There are two steps in the second round
of seat allocation. First, the percentage is multiplied by the remaining available seats, 38,
which is the difference between the 55 maximum seats reserved under the Party-List System

and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the
percentage and of the remaining available seats corresponds to a partys share in the remaining
available seats. Second, we assign one party-list seat to each of the parties next in rank until all
available seats are completely distributed. We distributed all of the remaining 38 seats in the
second round of seat allocation. Finally, we apply the three-seat cap to determine the number
of seats each qualified party-list candidate is entitled.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution
clearly intended the major political parties to participate in party-list elections through their
sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any
permanent sectoral seats, and in the alternative the reservation of the party-list system to the
sectoral groups. In defining a "party" that participates in party-list elections as either "a
political party or a sectoral party," R.A. No. 7941 also clearly intended that major political
parties will participate in the party-list elections. Excluding the major political parties in partylist elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from the party-list elections in
patent violation of the Constitution and the law.

In view of the inclusion of major political parties (according to Puno, J.)

The Court today effectively reversed the ruling in Ang Bagong Bayani v. COMELEC with
regard to the computation of seat allotments and the participation of major political parties in
the party-list system. I vote for the formula propounded by the majority as it benefits the
party-list system but I regret that my interpretation of Article VI, Section 5 of the Constitution
with respect to the participation of the major political parties in the election of party-list
representatives is not in direct congruence with theirs, hence
There is no gainsaying the fact that the party-list parties are no match to our traditional
political parties in the political arena. This is borne out in the party-list elections held in 2001
where major political parties were initially allowed to campaign and be voted for. The results
confirmed the fear expressed by some commissioners in the Constitutional Commission that
major political parties would figure in the disproportionate distribution of votes: of the 162
parties which participated, the seven major political parties made it to the top 50. These
seven parties garnered an accumulated 9.54% of the total number of votes counted, yielding an
average of 1.36% each, while the remaining 155 parties (including those whose qualifications
were contested) only obtained 90.45% or an average of 0.58% each. Of these seven, three
parties or 42.8% of the total number of the major parties garnered more than 2% of the total
number of votes each, a feat that would have entitled them to seat their members as party-list
representatives. In contrast, only about 4% of the total number of the remaining parties, or
only 8 out of the 155 parties garnered more than 2%.

In sum, the evils that faced our marginalized and underrepresented people at the time of the
framing of the 1987 Constitution still haunt them today. It is through the party-list system that
the Constitution sought to address this systemic dilemma. In ratifying the Constitution, our
people recognized how the interests of our poor and powerless sectoral groups can be
frustrated by the traditional political parties who have the machinery and chicanery to
dominate our political institutions. If we allow major political parties to participate in the
party-list system electoral process, we will surely suffocate the voice of the marginalized,
frustrate their sovereignty and betray the democratic spirit of the Constitution. That
opinion will serve as the graveyard of the party-list system.
IN VIEW WHEREOF, I dissent on the ruling allowing the entry of major political
parties into the party-list system.

In view of 2% being unconstitutional (according to Nachura, J.)

However, I wish to add a few words to support the proposition that the inflexible 2%
threshold vote required for entitlement by a party-list group to a seat in the House of
Representatives in Republic Act (R.A.) No. 7941 is unconstitutional. This minimum vote
requirement fixed at 2% of the total number of votes cast for the party list system presents
an unwarranted obstacle to the full implementation of Section 5 (2), Article VI, of the
Philippine Constitution. As such, it effectively defeats the declared constitutional policy, as
well as the legislative objective expressed in the enabling law, to allow the peoples broadest
representation in Congress,the raison detre for the adoption of the party-list system.
Today, a little over eight (8) years after this Courts decision in Veterans Federation Party,
we see that in the 14th Congress, 55 seats are allocated to party-list representatives, using the
Veterans formula. But that figure (of 55) can never be realized, because the 2% threshold vote
requirement makes it mathematically impossible to have more than 50 seats. After all, the total
number of votes cast for the party-list system can never exceed 100%.
Lest I be misunderstood, I do not advocate doing away completely with a threshold vote
requirement. The need for such a minimum vote requirement was explained in careful and
elaborate detail by Chief Justice Puno in his separate concurring opinion in Veterans
Federation Party. I fully agree with him that a minimum vote requirement is needed -1. to avoid a situation where the candidate will just use the party-list system as a fallback
position;
2. to discourage nuisance candidates or parties, who are not ready and whose chances are very
low, from participating in the elections;
3. to avoid the reserve seat system by opening up the system;

DECISION
4. to encourage the marginalized sectors to organize, work hard, and earn their seats within the
system;
5. to enable sectoral representatives to rise to the same majesty as that of the elected
representatives in the legislative body, rather than owing to some degree their seats in the
legislative body either to an outright constitutional gift or to an appointment by the President
of the Philippines;
6. if no threshold is imposed, this will actually proliferate political party groups and those who
have not really been given by the people sufficient basis for them to represent their
constituents and, in turn, they will be able to get to the Parliament through the backdoor under
the name of the party-list system; and
7. to ensure that only those with a more or less substantial following can be represented.9
However, with the burgeoning of the population, the steady increase in the party-list seat
allotment as it keeps pace with the creation of additional legislative districts, and the
foreseeable growth of party-list groups, the fixed 2% vote requirement is no longer viable. It
does not adequately respond to the inevitable changes that come with time; and it is, in fact,
inconsistent with the Constitution, because it prevents the fundamental law from ever being
fully operative.
It is correct to say, and I completely agree with Veterans Federation Party, that Section 5
(2), Article VI of the Constitution, is not mandatory, that it merely provides a ceiling for the
number of party-list seats in Congress. But when the enabling law, R.A. 7941, enacted by
Congress for the precise purpose of implementing the constitutional provision, contains a
condition that places the constitutional ceiling completely beyond reach, totally impossible of
realization, then we must strike down the offending condition as an affront to the fundamental
law. This is not simply an inquiry into the wisdom of the legislative measure; rather it involves
the duty of this Court to ensure that constitutional provisions remain effective at all times. No
rule of statutory construction can save a particular legislative enactment that renders a
constitutional provision inoperative and ineffectual.

G.R. No. 190582

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO,
Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the
heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is that others may
make different choices choices we would not make for ourselves, choices we may
disapprove of, even choices that may shock or offend or anger us. However, choices are not to
be legally prohibited merely because they are different, and the right to disagree and debate
about important questions of public policy is a core value protected by our Bill of Rights.
Indeed, our democracy is built on genuine recognition of, and respect for, diversity and
difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and
demands of morality. In many cases, where moral convictions are concerned, harmony among
those theoretically opposed is an insurmountable goal. Yet herein lies the paradox
philosophical justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that practical solutions are
preferable to ideological stalemates; accommodation is better than intransigence; reason more
worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a
writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad)
against the Resolutions of the Commission on Elections (COMELEC) dated November 11,
20092 (the First Assailed Resolution) and December 16, 2009 3 (the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its
roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under
Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. 4
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006. The application for

accreditation was denied on the ground that the organization had no substantial membership
base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
under-represented sector that is particularly disadvantaged because of their sexual orientation
and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that
because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections. 6 Ang Ladlad laid out its
national membership base consisting of individual members and organizational supporters,
and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian,
Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to,
and intimate and sexual relations with, individuals of a different gender, of the same gender, or
more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality
which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the
natural use into that which is against nature: And likewise also the men, leaving the natural use
of the woman, burned in their lust one toward another; men with men working that which is
unseemly, and receiving in themselves that recompense of their error which was meet.

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par.
6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It
is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is
the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation.
Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of
the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any
act, omission, establishment, business, condition of property, or anything else which x x x (3)
shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the
Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent
shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;
2. (a) The authors of obscene literature, published with their knowledge in any form;
the editors publishing such literature; and the owners/operators of the establishment
selling the same;

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone):
Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my
Lord! Help Thou me against people who do mischief" (29:30).

(b) Those who, in theaters, fairs, cinematographs or any other place,

exhibit indecent or immoral plays, scenes, acts or shows, it being
understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by
virtue hereof, shall include those which: (1) glorify criminals or condone

crimes; (2) serve no other purpose but to satisfy the market for violence,
lust or pornography; (3) offend any race or religion; (4) tend to abet traffic
in and use of prohibited drugs; and (5) are contrary to law, public order,
morals, good customs, established policies, lawful orders, decrees and
edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines
but likewise for not being truthful when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations relating to
the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous
bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are
a threat to the youth." As an agency of the government, ours too is the States avowed duty
under Section 13, Article II of the Constitution to protect our youth from moral and spiritual
degradation.8

If entry into the party-list system would depend only on the ability of an organization to
represent its constituencies, then all representative organizations would have found themselves
into the party-list race. But that is not the intention of the framers of the law. The party-list
system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups
of persons. Rather, the party-list system is a tool for the realization of aspirations of
marginalized individuals whose interests are also the nations only that their interests have
not been brought to the attention of the nation because of their under representation. Until the
time comes when Ladlad is able to justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its application for accreditation under the
party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence,
courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special
class" of individuals. x x x Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that "nothing in the U.S. Constitution
discloses a comparable intent to protect or promote the social or legal equality of homosexual
relations," as in the case of race or religion or belief.
xxxx

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First
Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and
Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his
Separate Opinion, upheld the First Assailed Resolution, stating that:

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there
can be no denying that Ladlad constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that applies to all citizens alike.
xxxx

I. The Spirit of Republic Act No. 7941

IV. Public Morals

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming
that it has properly proven its under-representation and marginalization, it cannot be said that
Ladlads expressed sexual orientations per se would benefit the nation as a whole.

x x x There is no question about not imposing on Ladlad Christian or Muslim religious

practices. Neither is there any attempt to any particular religious groups moral rules on
Ladlad. Rather, what are being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a society, the Philippines
cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and these are not
publicly accepted moral norms.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized
and under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives.

V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article
201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall

publicly expound or proclaim doctrines openly contrary to public morals." It penalizes

"immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad"
apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F:
"Consensual partnerships or relationships by gays and lesbians who are already of age It is
further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having
Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694
of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x." These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation.
Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against
the COMELEC, which had previously announced that it would begin printing the final ballots
for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment
on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11 Instead of filing a
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioners application.13 Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment. 14 The COMELEC, through its
Law Department, filed its Comment on February 2, 2010. 15
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on
January 12, 2010, effective immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. 17 The
CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards
and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and
the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we
granted the CHRs motion to intervene.

privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted
violations of the Philippines international obligations against discrimination based on sexual
orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in
denying petitioners application for registration since there was no basis for COMELECs
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate classification.
However, insofar as the purported violations of petitioners freedom of speech, expression,
and assembly were concerned, the OSG maintained that there had been no restrictions on these
rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT
sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or
related to any of the sectors in the enumeration.

The Parties Arguments

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals) may be registered under the
party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and under-represented sectors is
not exclusive". The crucial element is not whether a sector is specifically enumerated, but
whether a particular organization complies with the requirements of the Constitution and RA
7941.

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that "save for a

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which motion
was granted on February 2, 2010.19

few isolated places in the country, petitioner does not exist in almost all provinces in the
country."21
This argument that "petitioner made untruthful statements in its petition when it alleged its
national existence" is a new one; previously, the COMELEC claimed that petitioner was "not
being truthful when it said that it or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere
was this ground for denial of petitioners accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the reports of
petitioners alleged non-existence were already available to the COMELEC prior to the
issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a
belated afterthought, a change in respondents theory, and a serious violation of petitioners
right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlads initial petition shows that it never claimed to exist in each province of the
Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members
around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates around the
Philippines composed of the following LGBT networks:"

Gay, Bisexual, & Transgender Youth Association (GABAY)

Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro
Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila

Abra Gay Association

Naga City Gay Association Naga City

Aklan Butterfly Brigade (ABB) Aklan

ONE BACARDI

Albay Gay Association

Order of St. Aelred (OSAe) Metro Manila

Arts Center of Cabanatuan City Nueva Ecija

PUP LAKAN

Boys Legion Metro Manila

RADAR PRIDEWEAR

Cagayan de Oro People Like Us (CDO PLUS)

Rainbow Rights Project (R-Rights), Inc. Metro Manila

Cant Live in the Closet, Inc. (CLIC) Metro Manila

San Jose del Monte Gay Association Bulacan

Cebu Pride Cebu City

Sining Kayumanggi Royal Family Rizal

Circle of Friends

Society of Transexual Women of the Philippines (STRAP) Metro Manila

Dipolog Gay Association Zamboanga del Norte

Soul Jive Antipolo, Rizal

 The Link Davao City

Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT,
it is no surprise that they found that petitioner had no presence in any of these regions. In fact,
if COMELECs findings are to be believed, petitioner does not even exist in Quezon City,
which is registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance
with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection
and the belated allegation of non-existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our nonestablishment clause calls for is "government neutrality in religious matters." 24 Clearly,
"governmental reliance on religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act
for secular purposes and in ways that have primarily secular effects. As we held in Estrada v.
Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by a religious

belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government

based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not
support the policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in
criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in public deliberations
over what actions would be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious opinions and moral codes
with a compelling influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest
roots, but it must have an articulable and discernible secular purpose and justification to pass
scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine constitution's religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state
interests.27
Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual
conduct may be religion-based, it has long been transplanted into generally accepted public
morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group consists of LGBTs
but because of the danger it poses to the people especially the youth. Once it is recognized by
the government, a sector which believes that there is nothing wrong in having sexual relations
with individuals of the same gender is a bad example. It will bring down the standard of
morals we cherish in our civilized society. Any society without a set of moral precepts is in
danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to

imagine the reasons behind this censure religious beliefs, convictions about the preservation
of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and
their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to
criminalize homosexual conduct. Evidently, therefore, these "generally accepted public
morals" have not been convincingly transplanted into the realm of law.29

interest. Respondents blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that
the groups members have committed or are committing immoral acts." 30 The OSG argues:

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall
any person be denied equal protection of the laws," courts have never interpreted the provision
as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same
treatment of similar persons."33 The equal protection clause guarantees that no person or class
of persons shall be deprived of the same protection of laws which is enjoyed by other persons
or other classes in the same place and in like circumstances. 34

x x x A person may be sexually attracted to a person of the same gender, of a different gender,
or more than one gender, but mere attraction does not translate to immoral acts. There is a
great divide between thought and action. Reduction ad absurdum. If immoral thoughts could
be penalized, COMELEC would have its hands full of disqualification cases against both the
"straights" and the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELEC condescended to justify its
position that petitioners admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
wholly without authority to regulate matters concerning morality, sexuality, and sexual
relations, and we recognize that the government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one end of an argument or
another, without bothering to go through the rigors of legal reasoning and explanation. In this,
the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will
not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil laws
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any
act, omission, establishment, condition of property, or anything else which shocks, defies, or
disregards decency or morality," the remedies for which are a prosecution under the Revised
Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. 32
A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of public morals
cannot replace the institution of civil or criminal proceedings and a judicial determination of
liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any substantial public

Equal Protection

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets
a suspect class, we will uphold the classification as long as it bears a rational relationship to
some legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko
Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the rational basis test, coupled with a deferential
attitude to legislative classifications and a reluctance to invalidate a law unless there is a
showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval of an
unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis
review under the equal protection clause. The COMELECs differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that
would benefit the nation, furthers no legitimate state interest other than disapproval of or
dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have
the same interest in participating in the party-list system on the same basis as other political
parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to participate in
the party-list system on the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would

similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves
for the purposes of the equal protection clause. 38 We are not prepared to single out
homosexuals as a separate class meriting special or differentiated treatment. We have not
received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized under the same basis as all
other groups similarly situated, and that the COMELEC made "an unwarranted and
impermissible classification not justified by the circumstances of the case."

Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing
same-sex conduct.41 European and United Nations judicial decisions have ruled in favor of gay
rights claimants on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts. 42 To the extent that there is much to
learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding
on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means. 39 It is in the
public square that deeply held convictions and differing opinions should be distilled and
deliberated upon. As we held in Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every
moral discernment has access to the public square where people deliberate the order of their
life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral judgments
may be proposed for public deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral judgments is finally crystallized into
law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies including protection of religious freedom "not only for
a minority, however small not only for a majority, however large but for each of us" the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise
could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society,
and this freedom applies not only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly
not free to interfere with speech for no better reason than promoting an approved message or
discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in
this country. It follows that both expressions concerning ones homosexuality and the activity
of forming a political association that supports LGBT individuals are protected as well.

In the area of freedom of expression, for instance, United States courts have ruled that existing
free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify
the prohibition of a particular expression of opinion, public institutions must show that their
actions were caused by "something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe,
with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a change in the law or the
constitutional structures of a state if it uses legal and democratic means and the changes it
proposes are consistent with democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is advocated by peaceful means
must be afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the authorities or the
majority of the population.44 A political group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find solutions capable of satisfying
everyone concerned.45 Only if a political party incites violence or puts forward policies that are
incompatible with democracy does it fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious or moral views of one part of
the community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants.
It well may be that this Decision will only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We
do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to affect individual
perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of expression or association. The
OSG argues that:

Our Decision today is fully in accord with our international obligations to protect and promote
human rights. In particular, we explicitly recognize the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

There was no utterance restricted, no publication censored, or any assembly denied.

[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section 4, Article III of the
Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to
freely take part in the conduct of elections. Their right to vote will not be hampered by said
denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of
Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly
nullifying the capacity of its members to fully and equally participate in public life through
engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x47

Article 26
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.
In this context, the principle of non-discrimination requires that laws of general application
relating to elections be applied equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined
that the reference to "sex" in Article 26 should be construed to include "sexual orientation." 48
Additionally, a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements. 49
The UDHR provides:
Article 21.

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate
in the party-list system, and as advanced by the OSG itself the moral objection offered by
the COMELEC was not a limitation imposed by law. To the extent, therefore, that the
petitioner has been precluded, because of COMELECs action, from publicly expressing its
views as a political party and participating on an equal basis in the political process with other
equally-qualified party-list candidates, we find that there has, indeed, been a transgression of
petitioners fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring
about a more just and humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of conduct.

(1) Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by

universal and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in
the conduct of public affairs, the right to vote and to be elected and the right to have access to
public service. Whatever form of constitution or government is in force, the Covenant requires
States to adopt such legislative and other measures as may be necessary to ensure that citizens
have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of
democratic government based on the consent of the people and in conformity with the
principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for elective office
ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the
right to stand for election, such as minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education, residence or
descent, or by reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should indicate and
explain the legislative provisions which exclude any group or category of persons from
elective office.50
We stress, however, that although this Court stands willing to assume the responsibility of
giving effect to the Philippines international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioners
invocation of the Yogyakarta Principles (the Application of International Human Rights Law
In Relation to Sexual Orientation and Gender Identity), 51 which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find
basis in any of the sources of international law enumerated under Article 38(1) of the Statute

of the International Court of Justice. 52 Petitioner has not undertaken any objective and rigorous
analysis of these alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society or a certain segment of society wants
or demands is automatically a human right. This is not an arbitrary human intervention that
may be added to or subtracted from at will. It is unfortunate that much of what passes for
human rights today is a much broader context of needs that identifies many social desires as
rights in order to further claims that international law obliges states to sanction these
innovations. This has the effect of diluting real human rights, and is a result of the notion that
if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are at best de lege ferenda and do not
constitute binding obligations on the Philippines. Indeed, so much of contemporary
international law is characterized by the "soft law" nomenclature, i.e., international law is full
of principles that promote international cooperation, harmony, and respect for human rights,
most of which amount to no more than well-meaning desires, without the support of either
State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Courts role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient
enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on
Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners
application for party-list accreditation.
SO ORDERED.

G.R. No. 190529

March 22, 2011

PHILIPPINE GUARDIANS BROTHERHOOD, INC., represented by its SecretaryGeneral GEORGE "FGBF GEORGE" DULDULAO, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION
BRION, J.:
We resolve in this Resolution all the pending incidents in this case, specifically:

2) To add the petitioners party/acronym in the database of the List of Candidates for
sectoral party/organization or coalition participating in the party-list system of
representation will have a critical impact on the already tight and overstretched
election timelines of the Commission. Copy of the Revised Automation
Implementation Calendar is hereto attached as Annex "1".

(a) the contempt charge1 against the respondent Commission on Elections (Comelec)
for its alleged disobedience to this Courts Status Quo Order 2 dated February 2,
2010; and

3) Printing of the ballots is an intricate and complicated process. It is not a simple

process of encoding data in a computer and printing the ballots using a printer
attached to the computer.

(b) the issue of whether the petitioner, Philippine Guardians Brotherhood, Inc.
(PGBI), should be declared to have participated in the party-list elections of May 10,
2010, in light of the Comelecs failure to obey our Status Quo Order and our
subsequent Resolution3 granting PGBIs petition to annul its delisting from the roster
of accredited party-list groups or organizations. 4

4) Prior to the printing of the ballots, several technical and mechanical preparatory
activities have to be done which include among other things:

FACTUAL ANTECEDENTS
These incidents arose from our Status Quo Order directing the Comelec to restore and
maintain the PGBI to its situation prior to the issuance of Comelec Resolution No. 8679,
pending the resolution of the petition for certiorari that PGBI filed to challenge this Comelec
Resolution. Our Status Quo Order, in short, directly ordered the Comelec to include PGBI in
the list of candidates under the party-list system in the May 10, 2010 elections pending the
final determination of PGBIs qualification to be voted upon as a party-list organization.
We issued the Status Quo Order on February 2, 2010. It was served on the Comelec on the
same date,5 i.e., within the period that the Comelec itself gave for the correction of any error or
omission in its published official list of party-list participants in the May 10, 2010 elections.
The Comelec itself declared:
On January 30, 2010 at 3:00 oclock (sic) in the afternoon, pursuant to Comelec Minute
Resolution No. 10-0042 dated January 19, 2010, the Information Technology Department of
Comelec published a list of candidates with the instruction that "(s)hould there be any
misspelling, omission or other errors, the concerned candidate must call the Law Departments
attention within five (5) days from this publication for the purpose of correction. Thereafter,
Comelec shall be relieved from liability" 6 and the final list shall then be prepared for printing.7

a. Generation and back-up of database containing the candidates[]

information;
b. Configuration of Precinct Count Optical Scan (PCOS) machines and
Consolidation and Canvassing System (CCS);
c. Creation and design of one thousand six hundred seventy-four (1,674)
ballot templates;
d. Production of the ballot templates;
e. Verification of each and every ballot template to ensure that it contains
the accurate names of candidates for the national positions and acronyms
of sectoral party/organization or coalition participating in the party-list
system of representation and their corresponding assignments to the
correct districts, provinces, municipalities/cities, and clustered precincts.
Since the ballots are precinct-specific to ensure the security of the voting
and counting, this means verification of seventy six thousand three
hundred forty (76,340) variations of the one thousand six hundred
seventy-four (1,674) ballot templates; and
f. Placing several security markings in the ballots.

The Comelec responded the next day (February 3, 2010) to our Status Quo Order by asking
for its reconsideration and/or recall, based on the following grounds/arguments:

5) In fact, the installation of the Election Management System, which is used to

generate the PCOS machines configuration and ballot templates production have
already been in place as of January 25, 2010.

1) There will be insurmountable and tremendous operational constraints and costs

implications in complying with the status quo order.

6) To comply with the status quo order will not only affect the printing of the ballots
but also have serious implications on other activities of the Commission, such as:

a. The setting of configuration of the PCOS and CCS machines;

b. Testing of PCOS machines in their actual configuration with the ballots;
c. Deployment of PCOS and CCS machines and transmission equipments;
d. Checking/testing, demos, and sealing of the PCOS and CCS machines;
and
e. Shipment of the ballots to all parts of the country.
7) Due to several re-scheduling of the timelines of the Commission, SmartmaticTIM cautioned that it is extremely risky to change the database containing the
candidates information at this point in time. Any change in the database and other
preparatory activities would mean:
a. Twelve thousand (12,000) PCOS might not be configured and
dispatched to the field on time; and
b. Four million eight hundred thousand (4,800,000) ballots might not be
printed before the deadline and shipped out on time.
Even if the Commission will resort to contingency measures to configure and ship
out the twelve thousand (12,000) PCOS machines on time, the printing of the ballots
cannot be completed before May 10, 2010. This means that four million eight
hundred thousand (4,800,000) voters might not be able to vote due to lack of ballots,
thus disenfranchising them.
xxx

xxx

xxx

10) Hence, the Commission fervently requests the understanding and forbearance of
the Honorable Court which is the bastion of our justice system, protector of the
democratic processes and our last resort in ensuring a clean, peaceful, orderly and
credible May 10, 2010 elections, to take a second look on the status quo order issued
on February 2, 2010.8
In its Comment to Comelecs Motion for Reconsideration with Manifestation, 9 PGBI
essentially alleged that the Comelec posited seemingly misleading and innocuous reasons in
seeking reconsideration. Among other arguments, it claimed that the Comelec had been less
than candid in its submissions: first, compliance with the Status Quo Order at that point would
not disrupt the timetable or entail additional and costly expenditures given that the Comelec
had yet to terminate all related activities and preparations for the May 10, 2010 elections; 10

second, the Comelec had yet to promulgate, on February 11, 2010, its decisions on several
pending disqualification cases and recently accredited six other party-list organizations to add
to the more than 154 previously accredited sectoral parties and/or organizations. PGBI also
manifested that the ballot template that the Comelec published in its website on February 8,
2010 did not include the name or acronym of PGBI, in contravention of the Status Quo Order;
and third, the Comelecs blatant disregard of the Status Quo Order reeked of official
arrogance, given this Courts determination that it should be included in the ballot pending
resolution of PGBIs petition for certiorari.11
In our Resolution of April 29, 2010,12 we granted PGBIs petition and, accordingly, annulled
the assailed Comelec Resolutions in SPP No. 09-004 (MP) 13 which delisted PGBI from the
roster of duly registered national, regional and sectoral parties, organizations or coalitions. We
declared at the same time that PGBI is qualified to be voted upon as a party-list group or
organization in the May 10, 2010 elections. Despite the Status Quo Order and the Resolution,
however, PGBI was never included in the ballot as one of the accredited party-list groups or
organizations eligible for election under the party-list system. Hence, PGBI was never voted
upon as a party-list candidate in the May 10, 2010 elections.
Before the elections or on April 28, 2010, PGBI filed a Manifestation (of Continuing
Objection to Comelecs Defiance of the Order of the Honorable Supreme Court). 14 It claimed
that Comelec Resolution No. 8815, dated April 5, 2007, excluded the nominees of PGBI in the
official list of party-list/coalitions/sectoral organizations participating in the May 10, 2010
Automated National and Local Elections. Acting on this Manifestation, we required the
Comelec, via our Resolution of May 7, 2010, to explain and show cause, within a nonextendible period of ten (10) days from receipt of the Resolution, why it should not be held in
CONTEMPT of COURT for its alleged defiance of our Status Quo Order.15
In its Compliance16 to the Show Cause Order (submitted on May 21, 2010), the Comelec
reiterated the arguments it raised in its Extreme Urgent Motion for Reconsideration and To
Lift Status Quo Order. Specifically, it reiterated that there were "insurmountable and
tremendous operational constraints and cost implications in complying with the status quo
order," which order (referring to the Status Quo Order) is tantamount to technical, legal, and
physical impossibility for respondents to comply. 17 The Comelec asked the Court to note the
explanation and accept it as sufficient compliance with the Show Cause Order.
Required to comment on the Comelecs Compliance, PGBI filed a Manifestation Cum
Comment,18 asserting that a careful reading of the Compliance reveals that the Comelec
simply deftly skirted and, ultimately, never obeyed the Status Quo Order, and thus wantonly
and contumaciously disregarded the same. The PGBI additionally manifested that via a letter
to the Comelec on May 4, 2010, it raised the following concerns:
The preceding pronouncement [referring to the Courts Resolution granting PGBIs petition]
may appear to be inconsequential and a pyrrhic victory in view of the error and omission to

include the name of the petitioner in the ballots for the scheduled elections. How this
Honorable Commission will find the means and/or alternative to comply with and/or
implement the directive in said decision is a matter left to its judgment and discretion.

The power to punish contempt is inherent in all courts, because it is essential to the
preservation of order in judicial proceedings, and to the enforcement of judgments, orders and
mandates of the courts; and, consequently, to the due administration of justice.

Be that as it may, it is the petitioners considered view that a definitive ruling, including the
grant of its Motion for Reconsideration in SPP No. 09-004 (MP), be expressly made in order
that the limitation prescribed in Section 6(8) of R.A. No. 7941, replicated in COMELEC
Resolution No. 2847, promulgated on June 25, 1996, will not apply to herein petitioner for
purposes of the May 2013 elections.

Under our Rules of Court, contempt is classified into direct and indirect. Direct contempt,
which may be summary, is committed "in the presence of or so near a court as to obstruct or
interrupt the proceedings before the same, including disrespect toward the court, offensive
personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so."

While the implementation of the dispositions in the said Resolution has become a physical
impossibility, it is petitioners respectful submittal that it should not be penalized for not being
able to participate in the coming May 10, 2010 party-list election. [parenthetical note at 1st
paragraph supplied; underscoring in the original].

Indirect contempt, on the other hand, is not committed in the presence of the court and can be
punished only after notice and hearing. Disobedience or resistance to a lawful writ, process,
order or judgment of a court or injunction granted by a court or judge constitutes indirect
contempt. We quote Section 3, Rule 71 of the Rules of Court, enumerating the acts punishable
as indirect contempt, as follows:

Based on its apprehension that it might end up twice in jeopardy of not being able to
participate in the party-list elections of 2013 in view of Section 6(8) of Republic Act (R.A.)
No. 7941, PGBI requested that the matter of its participation in the May 2013 party-list
elections be given a categorical ruling. 19
In its Reply,20 the Comelec asserted that a discussion on PGBIs eligibility for the 2013
elections i.e., whether its declared eligibility for the 2010 elections and its eventual inability
to participate thereto should be considered as a failure to participate in the last two (2)
elections, as defined in R.A. No. 7941 is purely academic, and is purely an advisory opinion
that this Court has no jurisdiction to grant. Judicial power, the Comelec claimed, is limited to
the determination and resolution of actual cases and controversies involving existing conflicts
that are appropriate or ripe for judicial determination; it does not extend to hypothetical,
conjectural or anticipatory questions. It claimed additionally that as the specialized
constitutional body charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall,
PGBIs question is a matter within its competence and primary jurisdiction to decide once it
becomes ripe for adjudication.
OUR RULING
After due consideration of the attendant facts and the law, we find the Comelec guilty of
indirect contempt of this Court.

"SEC. 3. Indirect contempt to be punished after charge and hearing. After a charge in
writing has been filed, and an opportunity given to the respondent to comment thereon within
such period as may be fixed by the court and to be heard by himself or counsel, a person guilty
of any of the following acts may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in
his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected from
any real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property, for the
purpose of executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;

The Comelec Chair and Members are guilty of indirect contempt of Court

(e) Assuming to be an attorney or an officer of a court, and acting as such without

authority;

We explained in Ang Bagong Bayani-OFW Labor Party v. COMELEC 21 the Courts contempt
power as follows:

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an

officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing process to
bring the respondent into court, or from holding him in custody pending such proceedings."
Based on the recited antecedent facts, it cannot be disputed that the Comelec did not comply
with our Status Quo Order; it simply pleaded insurmountable and tremendous operational
constraints and costs implications as reasons for its avoidance of our Order. It essentially
posited that compliance with our Status Quo Order was rendered impossible by the automation
of the May 10, 2010 elections.
However, we find this explanation unacceptable, given the Comelecs own self-imposed
deadline of February 4, 2010 for the correction of errors and omissions, prior to printing, of
the published list of participating party-list groups and organizations in the May 10, 2010
elections.
The Comelec deadline could only mean that the Comelec had determined that changes in the
official ballot could still be made at any time prior to the deadline. In the context of the cases
then pending involving the registration of party-list organizations, the deadline was a clear
signal from the Comelec that the cases would have to be resolved before the deadline;
otherwise, the Comelec could not be held liable for their non-inclusion.
We fully read and respected the Comelecs signal, fully aware that we have to balance the
interests the Comelec has to protect, with PGBIs intent to be voted as a party-list
organization. Thus, on February 2, 2010, we issued our Status Quo Order after a preliminary
but judicious evaluation of the merits of PGBIs motion for reconsideration, only to receive
the Comelecs response on February 3, 2010 manifesting that it could no longer change the
ballots because of the nature of an automated election.
In an exercise as important as an election, the Comelec cannot make a declaration and impose
a deadline, and, thereafter, expect everyone to accept its excuses when it backtracks on its
announced declaration. The Comelec knew very well that there were still cases pending for
judicial determination that could have been decided before the deadline was set.
Although the recent case of Liberal Party v. Commission on Elections, 22 involved the
registration of political parties, we found that the Comelec gravely abused its discretion in
allowing the out of time registration of the NP-NPC coalition despite the mandatory deadline
the Comelec itself had set. In this case, we underscored the significance of the Comelecs
compliance with its self-imposed deadlines, particularly in the implementation of the first-ever
automated elections of May 10, 2010.

To be excused, the Comelec needed more than its generalized descriptions of the process of
ballot printing and the alleged problems it faced. We needed reasons on how and why the
deadline was set, as well as detailed and specific reasons why PGBI could no longer be listed
while other errors and omissions could still be remedied.
Unfortunately for the Comelec, we did not see that kind of justification in its Compliance
before us. Like the Comelec, we expect obedience to and respect for our Orders and
Resolutions, and we cannot be sidetracked based solely on supposed operational constraints
caused by the automated polls. Its treatment of our Status Quo Order simply meant that even
before the Comelec deadline, a definitive ruling that a party-list organization should be
included in the list to be voted upon would have been for naught as the Comelec would have
anyway pleaded automation constraints. Even if its excuse had been meritorious, the Comelec
effectively would have been guilty of misrepresentation on an election matter and in dealing
with this Court.
Although we have recognized the validity of the automation of the May 10, 2010 elections in
Roque, Jr. v. Comelec,23 we stress that automation is not the end-all and be-all of an electoral
process. An equally important aspect of a democratic electoral exercise is the right of free
choice of the electorates on who shall govern them; the party-list system, in the words of Ang
Bagong BayaniOFW Labor Party v. Comelec,24 affords them this choice, as it gives the
marginalized and underrepresented sectors the opportunity to participate in governance.
Wittingly or unwittingly, the Comelec took this freedom of choice away and effectively
disenfranchised the members of the sector that PGBI sought to represent when it did not
include PGBI in the list of qualified parties vying for a seat under the party-list system of
representation. This is a consideration no less weighty than the automation of the election and
cannot be simply disregarded on mere generalized allegations of automation difficulties.
The Appropriate Penalty
Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7
of Rule 71 reads:
SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect
contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding
six (6) months, or both. x x x
In the past, we have found the Chairman and members of the Comelec guilty of indirect
contempt in Ang Bagong Bayani-OFW Labor Party v. COMELEC. 25 In that case, we held that
the Chairman and members of the COMELEC guilty of contempt and required them to pay a
fine in the amount of P20, 000.00 for "degrading the dignity of th[e] Court; 26 for brazen
disobedience to its lawful directives, in particular its Temporary Restraining Order dated May

9, 2001; and for delaying the ultimate resolution of the many incidents of the case, to the
prejudice of the litigants and of the country." We also warned the Comelec that a repetition of
the same or similar acts shall be dealt with more severely in the future. 27
Evidently, the Rule cited above does not provide that reprimand may be imposed on one found
guilty of indirect contempt. However, we have in recent cases imposed a penalty less than
what is provided under the Rules if the circumstances merit such. 28
In Alcantara v. Ponce, 29 the Court, instead of citing the respondent Atty. Escareal-Sandejas for
contempt, chose to reprimand her (and warned her that her commission of the same act would
be more drastically dealt with) noting her apparent inexperience in practice of the profession,
especially in appellate proceedings before the Court. Similarly, in Racines v. Judge Morallos, 30
the Court, after finding Jaime Racines guilty of indirect contempt, merely reprimanded him
because "he is not learned in the intricacies of the law."
In the present case, special circumstances exist which call for our leniency and compel us to
impose the penalty of severe reprimand instead of of imprisonment and/or fine under Section
7, of Rule 71 of the Rules of Court as we have ruled in Ang Bagong Bayani-OFW Labor Party.
We emphasize that although automation is a special circumstance that should be considered in
the present incidental matter, however, its effect on the Comelecs non-compliance is merely
to mitigate, not to totally exculpate, the Comelec from liability for its failure to comply with
our Status Quo Order. In other words, even if we grant that automation might have posed some
difficulty in including a new party in the party-list listing, the Comelec still failed to prove to
our satisfaction that the PGBIs inclusion was technically impossible and could not have been
done even if the Comelec had wanted to. Thus, at the most, we can give the Comelec the
benefit of the doubt to the extent of recognizing its excuse as a mitigating factor.
Therefore, instead of imposing the penalty of imprisonment and/or fine provided under
Section 7, Rule 71 of the Revised Rules of Court, we deem it proper to impose upon the
Comelec, particularly on its Chair and Members the penalty of severe reprimand, with a stern
warning that a repetition of the same offense shall be dealt with more severely.
At this juncture, we take judicial notice of Comelec Chairperson Jose A.R. Melos resignation
effective January 15, 201131 and Commissioners Nicodemo T. Ferrer and Gregorio Y.
Larrazabals retirement on February 2, 2011. 32 We hasten to clarify that their departure from
government service, however, do not render moot and academic their liability for indirect
contempt, since "contempt of court applies to all persons, whether in or out of government."
Thus, in Curata v. Philippine Ports Authority,33 we held:
Contempt of court applies to all persons, whether in or out of government. Thus, it covers
government officials or employees who retired during the pendency of the petition for
contempt. Otherwise, a civil servant may strategize to avail himself of an early retirement to

escape the sanctions from a contempt citation, if he perceives that he would be made
responsible for a contumacious act. The higher interest of effective and efficient
administration of justice dictates that a petition for contempt must proceed to its final
conclusion despite the retirement of the government official or employee, more so if it
involves a former member of the bench.
PGBIs Participation in the May 10, 2010 Party-List Elections
We partly agree with the Comelec that we cannot recognize PGBI to be a party-list
organization fully qualified to run under the party-list system in the coming 2013 party-list
elections. The question of full and total qualification is not ripe for judicial determination as
this is not before us for resolution. Participation in a previous election and the level of votes in
favor of a participating organization are not the only qualification issues that can arise in a
party-list election, and we cannot assume that PGBI shall meet all other legal standards to
qualify as a party-list organization in the 2013 elections. 34
But separate from the question of PGBIs overall qualification is the narrower question of its
participation in the May 10, 2010 elections an issue that is subsumed by the issues in the
main certiorari case. As shown above, PGBI intended to participate in the May 10, 2010
elections but it was not able to do so because the Comelec did not contrary to our express
directive include it in the list of party-list organizations to be voted upon in the May 10,
2010 elections. As it was the Comelec itself which prevented PGBI from participating in the
May 10, 2010 party-list elections when it deleted PGBI, with grave abuse of discretion, from
the list of accredited party-list groups or organizations and, thereafter, refused to return it to
the list despite our directive, PGBI should, at the very least, be deemed to have participated in
the May 10, 2010 elections, and cannot be disqualified for non-participation or for failure to
garner the votes required under Section 6(8) of R.A. No. 7941. To conclude otherwise is to
effectively recognize the ineffectiveness of our Status Quo Order, of our April 29, 2010
Decision, and of this Court.
As a final note, the subject of the Courts action is the COMELECs disobedience to our Status
Quo Order of February 2, 2010 in the case in caption. The composition of the COMELEC has
since then changed. We therefore clarify that this Resolution affects and reflects on the
COMELEC and its membership as then constituted as they were the ones directly responsible
for the disobedience.
WHEREFORE, premises considered, the Comelec Chair 35 and Members36 are hereby found
GUILTY of CONTEMPT of the Supreme Court for their disobedience to our lawful directive,
specifically the Status Quo Order dated February 2, 2010. They are accordingly SEVERELY
REPRIMANDED for this disobedience. They are further WARNED that a repetition of the
same or similar acts shall be dealt with more severely in the future.

The Philippine Guardians Brotherhood, Inc. shall be deemed not to have transgressed the
participation and level of votes requirements under Section 6(8) of Republic Act No. 7941
with respect to the May 10, 2010 elections.
SO ORDERED.

and organizations covered by the 41 petitions that obtained mandatory injunction orders from
the high court still stand a chance to make it to the 2013 party-list race as the high court
ordered the poll body to determine whether petitioners are qualified to register under the
party-list system and to participate in the 13 May 2013 party-list elections under the new
parameters set forth in the Decision. The rest, meaning, the 13 other petitions, were remanded
to the poll body merely for purposes of determining whether they may be granted accreditation
under the new parameters but may not participate in the May 2013 elections.
The Decision, however, clarified that the poll body may not be faulted for acting on the basis
of previous rulings (Ang Bagong Bayani, BANAT) of the high court regarding the party-list
system. These earlier rulings enumerated guidelines on who may participate in the party-list
system.

Atong Paglaum v. Commission on Elections

Background of the case

New parameters set forth in the Decision on who may participate in the May 2013 partylist race and subsequent party-list elections

52 party-list groups and organizations filed separate petitions totaling 54 with the Supreme
Court (SC) in an effort to reverse various resolutions by the Commission on Elections
(Comelec) disqualifying them from the May 2013 party-list race. The Comelec, in its assailed
resolutions issued in October, November and December of 2012, ruled, among others, that
these party-list groups and organizations failed to represent a marginalized and
underrepresented sector, their nominees do not come from a marginalized and
underrepresented sector, and/or some of the organizations or groups are not truly
representative of the sector they intend to represent in Congress.

The Decision identified three groups that may participate in the party-list system: (1) national
parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

Petitioners argued that the poll body committed grave abuse of discretion in denying some of
the petitioners application for accreditation and cancelling the existing accreditation of the
rest. They also lamented the poll bodys denial to accord them due process in the evaluation
proceedings.

As for political parties, they may participate in the party-list race by registering under the
party-list system and no longer field congressional candidates. These parties, if they field
congressional candidates, however, are not barred from participating in the party-list elections;
what they need to do is register their sectoral wing or party under the party-list system. This
sectoral wing shall be considered an independent sectoral party linked to a political party
through a coalition.

The high court consolidated these cases; Senior Associate Justice Antonio Carpio was tasked
as the Member-in-charge of the case.
Status quo ante orders (SQAO) were issued in all 54 petitions which restored the status quo
prior to the disqualification of petitioners. However, only 39 of the 52 petitioners or only 41
petitions were able to secure a mandatory injunction, directing the Comelec to include their
names in the printing of official ballots.
THE RULING
In a Decision promulgated on April 2, 2013, the high court, through Carpios ponencia, ruled
in favor of the 54 petitions and remanded these petitions to the Comelec. The party-list groups

On the part of national parties or organizations and regional parties or organizations which
intend to participate in the party-list race, the new guidelines state that these parties do not
need to organize along sectoral lines and do not need to represent any marginalized or
underrepresented sector.'

The question is: where does representation of marginalized and underrepresented sectors
come in?
The answer: on the sectoral parties or organizations that intend to participate in the party-list
system.
The high court held that purely sectoral parties or organizations may either represent
marginalized and underrepresented constituencies or those lacking well-defined political
constituencies. The high court went on to enumerate marginalized and underrepresented
sectors, as follows: labor, peasant, fisherfolk, urban poor, indigenous cultural communities,

handicapped, veterans, and overseas workers. The sectors that lack well-defined political
constituencies include professionals, the elderly, women, and the youth.

The Decision also pointed out pertinent provisions of Republic Act (RA) No. 7941, also
known as the Party-list System Act, specifically from Sec. 3 (Definition of Terms):

The rule on nominees and members coming from the sector they intend to represent also
applies only to the sectoral parties or organizations. The high court ruled that it is enough that
[a] majority of the members of the sectoral parties or organizations must belong to the
marginalized and underrepresented sector they represent.' The same is true for those who
lack well-defined political constituencies.

(b) A party means either a political party or a sectoral party or a coalition of parties

As for the nominees of these sectoral parties and organizations, the new guidelines provide
that they must either be members of the sector or have a track record of advocacy for their
sector.

(c) A political party refers to an organized group of citizens advocating an ideology or

platform, principles and policies for the general conduct of government and which, as the
most immediate means of securing their adoption, regularly nominates and supports certain of
its leaders and members as candidates for public office
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and
concerns of their sector

Should some of the nominees of these national, regional, and sectoral parties or organizations
be disqualified, the party or organization itself will not be disqualified provided that they
have at least one nominee who remains qualified.

Again, the high court noted that defining these parties or groups, one from the others, could
only mean that they are not one and the same.

The party-list system, according to the Decision

Previous rulings reversed by Atong Paglaum

Quoting Christian Monsod, the main proponent of the party-list system, the high court stated
that it is not synonymous with that of the sectoral representation. The high court stressed
that the framers of the 1987 Constitution did not intend to leave out non-sectoral parties in
the party-list system and exclusively limit it to sectoral groups.

As earlier stated, there are previous rulings on the party-list system in the case of Ang Bagong
Bayani
v.
Comelec
(http://sc.judiciary.gov.ph/jurisprudence/2001/jun2001/147589_decision.htm) and BANAT v.
Comelec (http://sc.judiciary.gov.ph/jurisprudence/2009/april2009/179271.htm).

The framers intended the sectoral parties to constitute a part, but not the entirety, of the partylist system In fact, the framers voted down , 19-22, a proposal to reserve the party-list
system exclusively to sectoral parties.

In Ang Bagong Bayanis parameters for the party-list system, guideline 2 states that while
even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of
enabling Filipino citizens belonging to marginalized and underrepresented sectors to be
elected to the House of Representatives.'

There can be no doubt whatsoever that the framers of the 1987 Constitution expressly
rejected the proposal to make the party-list system exclusively for sectoral parties only, and
that they clearly intended the party-list system to include both sectoral and non-sectoral
parties, the Decision read.
To amplify its position, the high court pointed out Sec. 5(1), Art. VI of the 1987 Constitution,
which states:
Section 5. (1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and progressive
ratio, and those who, as provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.

However, in its latest Decision, in Atong Paglaum, the high court pointed out that there was an
inherent inconsistency in the Ang Bagong Bayani guidelines since the requirement that the
major political parties should represent the marginalized and underrepresented sectors
essentially automatically disqualified these major parties from the party-list system.
As for BANAT, incidentally also penned by Carpio, the high court said that the guidelines in
this ruling merely formalized the prevailing practice when it prohibited major political
parties from participating in the party-list elections even if through their allied sectoral
organizations.
My 2-cents

Flip-flopped as it may have in the case of Atong Paglaum, I agree with the Supreme Court in
this Decision. No less than the Constitution provides in Sec. 5(1), Art. VI that national,
regional, and sectoral parties and organizations may participate in the party-list system a
fact that may not be denied in spite of where public discourse and sentiment tend to sway in
as far as the party-list system is concerned.
If we want the party-list system to truly represent marginalized and underrepresented sectors
and party-list groups to come from the non-traditional political parties, then what needs to be
done is amend the law. The Supreme Court cannot go beyond its duty of interpreting the law
and may not perform a constitutional function and mandate which is solely that of the
legislative branch. Doing so would be tantamount to judicial legislation.
I totally agree that allowing national and major political parties to participate in the party-list
elections does not make any sense if there were no distinction or requirement that the
marginalized and underrepresented should be the constituency. Why then create a separate
system if it is, in fact, free for all?
But this is an issue best left to Congress to resolve, heart-wrenching as this may sound to those
whose desire is to provide a platform for a truly non-traditional mode of politics. For now, let
us accept that we cannot go beyond what the law provides.

G.R. No. 148334

January 21, 2004

ARTURO M. TOLENTINO and ARTURO C. MOJICA, Petitioners,

vs.
COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and SENATOR
GREGORIO B. HONASAN, Respondents.
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001
("Resolution No. 01-005") and Resolution No. NBC 01-006 dated 20 July 2001 ("Resolution
No. 01-006") of respondent Commission on Elections ("COMELEC"). Resolution No. 01-005
proclaimed the 13 candidates elected as Senators in the 14 May 2001 elections while

Resolution No. 01-006 declared "official and final" the ranking of the 13 Senators proclaimed
in Resolution No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria MacapagalArroyo nominated then Senator Teofisto T. Guingona, Jr. ("Senator Guingona") as VicePresident. Congress confirmed the nomination of Senator Guingona who took his oath as
Vice-President on 9 February 2001.
Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution
No. 84 ("Resolution No. 84") certifying to the existence of a vacancy in the Senate. Resolution
No. 84 called on COMELEC to fill the vacancy through a special election to be held
simultaneously with the regular elections on 14 May 2001. Twelve Senators, with a 6-year
term each, were due to be elected in that election. 1 Resolution No. 84 further provided that the
"Senatorial candidate garnering the 13th highest number of votes shall serve only for the
unexpired term of former Senator Teofisto T. Guingona, Jr.," which ends on 30 June 2004. 2
On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but
one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming
13 candidates as the elected Senators. Resolution No. 01-005 also provided that "the first
twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator
shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was
appointed Vice-President."3 Respondents Ralph Recto ("Recto") and Gregorio Honasan
("Honasan") ranked 12th and 13th, respectively, in Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica ("petitioners"), as voters and
taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent.
Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for
Senator receiving the 13th highest number of votes as the winner in the special election for a
single three-year term seat. Accordingly, petitioners prayed for the nullification of Resolution
No. 01-005 in so far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction
because: (1) it failed to notify the electorate of the position to be filled in the special election
as required under Section 2 of Republic Act No. 6645 ("R.A. No. 6645"); 4 (2) it failed to
require senatorial candidates to indicate in their certificates of candidacy whether they seek
election under the special or regular elections as allegedly required under Section 73 of Batas
Pambansa Blg. 881;5 and, consequently, (3) it failed to specify in the Voters Information Sheet
the candidates seeking election under the special or regular senatorial elections as purportedly
required under Section 4, paragraph 4 of Republic Act No. 6646 ("R.A. No. 6646"). 6
Petitioners add that because of these omissions, COMELEC canvassed all the votes cast for

the senatorial candidates in the 14 May 2001 elections without distinction such that "there
were no two separate Senate elections held simultaneously but just a single election for
thirteen seats, irrespective of term."7

(a) whether the petition is in fact a petition for quo warranto over which
the Senate Electoral Tribunal is the sole judge;
(b) whether the petition is moot; and

Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election
must be distinguished in the documentation as well as in the canvassing of their results. To
support their claim, petitioners cite the special elections simultaneously held with the regular
elections of 13 November 1951 and 8 November 1955 to fill the seats vacated by Senators
Fernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their
tenures in the Senate.8 Petitioners point out that in those elections, COMELEC separately
canvassed the votes cast for the senatorial candidates running under the regular elections from
the votes cast for the candidates running under the special elections. COMELEC also
separately proclaimed the winners in each of those elections. 9

(c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-year term Senate
seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.

Petitioners sought the issuance of a temporary restraining order during the pendency of their
petition.

On the Preliminary Matters

Without issuing any restraining order, we required COMELEC to Comment on the petition.

The Nature of the Petition and the Courts Jurisdiction

On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued
Resolution No. 01-006 declaring "official and final" the ranking of the 13 Senators proclaimed
in Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.

A quo warranto proceeding is, among others, one to determine the right of a public officer in
the exercise of his office and to oust him from its enjoyment if his claim is not well-founded. 10
Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole
judge of all contests relating to the qualifications of the members of the Senate.

In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an
amended petition impleading Recto and Honasan as additional respondents. Petitioners
accordingly filed an amended petition in which they reiterated the contentions raised in their
original petition and, in addition, sought the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the
seat vacated by Senator Guingona was validly held on 14 May 2001. COMELEC and Honasan
further raise preliminary issues on the mootness of the petition and on petitioners standing to
litigate. Honasan also claims that the petition, which seeks the nullity of his proclamation as
Senator, is actually a quo warranto petition and the Court should dismiss the same for lack of
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a proper party
to this case because the petition only involves the validity of the proclamation of the 13th
placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally

A perusal of the allegations contained in the instant petition shows, however, that what
petitioners are questioning is the validity of the special election on 14 May 2001 in which
Honasan was elected. Petitioners various prayers are, namely: (1) a "declaration" that no
special election was held simultaneously with the general elections on 14 May 2001; (2) to
enjoin COMELEC from declaring anyone as having won in the special election; and (3) to
annul Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as
the winner in the special election. Petitioners anchor their prayers on COMELECs alleged
failure to comply with certain requirements pertaining to the conduct of that special election.
Clearly then, the petition does not seek to determine Honasans right in the exercise of his
office as Senator. Petitioners prayer for the annulment of Honasans proclamation and,
ultimately, election is merely incidental to petitioners cause of action. Consequently, the Court
can properly exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its
subsequent confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant
petition to set aside Resolutions Nos. 01-005 and 01-006 moot and academic.

Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist
from committing an act threatened to be done without jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. 11 Consequently, the writ will not lie to
enjoin acts already done. 12 However, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition yet evading review. 13 Thus, in
Alunan III v. Mirasol,14 we took cognizance of a petition to set aside an order canceling the
general elections for the Sangguniang Kabataan ("SK") on 4 December 1992 despite that at
the time the petition was filed, the SK election had already taken place. We noted in Alunan
that since the question of the validity of the order sought to be annulled "is likely to arise in
every SK elections and yet the question may not be decided before the date of such elections,"
the mootness of the petition is no bar to its resolution. This observation squarely applies to the
instant case. The question of the validity of a special election to fill a vacancy in the Senate in
relation to COMELECs failure to comply with requirements on the conduct of such special
election is likely to arise in every such election. Such question, however, may not be decided
before the date of the election.
On Petitioners Standing
Honasan questions petitioners standing to bring the instant petition as taxpayers and voters
because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the issuance of Resolution
Nos. 01-005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury because of the challenged governmental
act.15 The requirement of standing, which necessarily "sharpens the presentation of issues," 16
relates to the constitutional mandate that this Court settle only actual cases or controversies. 17
Thus, generally, a party will be allowed to litigate only when (1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal conduct of
the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.18
Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In
questioning, in their capacity as voters, the validity of the special election on 14 May 2001,
petitioners assert a harm classified as a "generalized grievance." This generalized grievance is
shared in substantially equal measure by a large class of voters, if not all the voters, who voted
in that election.19 Neither have petitioners alleged, in their capacity as taxpayers, that the Court
should give due course to the petition because in the special election held on 14 May 2001
"tax money [was] x x x extracted and spent in violation of specific constitutional protections
against abuses of legislative power or that there [was] misapplication of such funds by
COMELEC or that public money [was] deflected to any improper purpose."20

On the other hand, we have relaxed the requirement on standing and exercised our discretion
to give due course to voters suits involving the right of suffrage. 21 Also, in the recent case of
Integrated Bar of the Philippines v. Zamora,22 we gave the same liberal treatment to a
petition filed by the Integrated Bar of the Philippines ("IBP"). The IBP questioned the validity
of a Presidential directive deploying elements of the Philippine National Police and the
Philippine Marines in Metro Manila to conduct patrols even though the IBP presented "too
general an interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law
and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other groups and the whole
citizenry x x x.
Having stated the foregoing, this Court has the discretion to take cognizance of a suit which
does not satisfy the requirement of legal standing when paramount interest is involved. In not
a few cases, the court has adopted a liberal attitude on the locus standi of a petitioner where
the petitioner is able to craft an issue of transcendental significance to the people. Thus, when
the issues raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by
the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly
will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the
rules on standing and to resolve the issue now, rather than later.23 (Emphasis supplied)
We accord the same treatment to petitioners in the instant case in their capacity as voters since
they raise important issues involving their right of suffrage, considering that the issue raised in
this petition is likely to arise again.
Whether
a
Special
Election
for
Senatorial Seat was Validly Held on 14 May 2001

Single,

Three-Year

Term

Under Section 9, Article VI of the Constitution, a special election may be called to fill any
vacancy in the Senate and the House of Representatives "in the manner prescribed by law,"
thus:
In case of vacancy in the Senate or in the House of Representatives, a special election may be
called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the

House of Representatives thus elected shall serve only for the unexpired term. (Emphasis
supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645, which
provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the
House of Representatives at least one (1) year before the next regular election for Members of
Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the
House of Representatives, as the case may be, certifying to the existence of such vacancy and
calling for a special election, shall hold a special election to fill such vacancy. If Congress is in
recess, an official communication on the existence of the vacancy and call for a special
election by the President of the Senate or by the Speaker of the House of Representatives, as
the case may be, shall be sufficient for such purpose. The Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election, which
shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of
such resolution or communication, stating among other things the office or offices to be voted
for: Provided, however, That if within the said period a general election is scheduled to be
held, the special election shall be held simultaneously with such general election. (Emphasis
supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as
follows:
Postponement, Failure of Election and Special Elections. x x x In case a permanent vacancy
shall occur in the Senate or House of Representatives at least one (1) year before the
expiration of the term, the Commission shall call and hold a special election to fill the vacancy
not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the
vacancy. However, in case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term,
Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by
fixing the date of the special election, which shall not be earlier than sixty (60) days nor later
than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the
special election shall be held simultaneously with the next succeeding regular election; and (2)
to give notice to the voters of, among other things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May
2001 regular elections, comply with the requirements in Section 2 of R.A. No. 6645?

A survey of COMELECs resolutions relating to the conduct of the 14 May 2001 elections
reveals that they contain nothing which would amount to a compliance, either strict or
substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere
in its resolutions24 or even in its press releases25 did COMELEC state that it would hold a
special election for a single three-year term Senate seat simultaneously with the regular
elections on 14 May 2001. Nor did COMELEC give formal notice that it would proclaim as
winner the senatorial candidate receiving the 13th highest number of votes in the special
election.
The controversy thus turns on whether COMELECs failure, assuming it did fail, to comply
with the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of
the special senatorial election on 14 May 2001 and accordingly rendered Honasans
proclamation as the winner in that special election void. More precisely, the question is
whether the special election is invalid for lack of a "call" for such election and for lack of
notice as to the office to be filled and the manner by which the winner in the special election is
to be determined. For reasons stated below, the Court answers in the negative.
COMELECs
Failure
of
the
Time
of
Negate the Calling of such Election

the

to
Special

Give
Election

Did

Notice
Not

The calling of an election, that is, the giving notice of the time and place of its occurrence,
whether made by the legislature directly or by the body with the duty to give such call, is
indispensable to the elections validity.26 In a general election, where the law fixes the date of
the election, the election is valid without any call by the body charged to administer the
election.27
In a special election to fill a vacancy, the rule is that a statute that expressly provides that an
election to fill a vacancy shall be held at the next general elections fixes the date at which the
special election is to be held and operates as the call for that election. Consequently, an
election held at the time thus prescribed is not invalidated by the fact that the body charged by
law with the duty of calling the election failed to do so. 28 This is because the right and duty to
hold the election emanate from the statute and not from any call for the election by some
authority29 and the law thus charges voters with knowledge of the time and place of the
election.30
Conversely, where the law does not fix the time and place for holding a special election but
empowers some authority to fix the time and place after the happening of a condition
precedent, the statutory provision on the giving of notice is considered mandatory, and failure
to do so will render the election a nullity.31

In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the
Senate, the special election to fill such vacancy shall be held simultaneously with the next
succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate
arising from Senator Guingonas appointment as Vice-President in February 2001 could not be
held at any other time but must be held simultaneously with the next succeeding regular
elections on 14 May 2001. The law charges the voters with knowledge of this statutory notice
and COMELECs failure to give the additional notice did not negate the calling of such special
election, much less invalidate it.
Our conclusion might be different had the present case involved a special election to fill a
vacancy in the House of Representatives. In such a case, the holding of the special election is
subject to a condition precedent, that is, the vacancy should take place at least one year before
the expiration of the term. The time of the election is left to the discretion of COMELEC
subject only to the limitation that it holds the special election within the range of time
provided in Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement
in Section 2 of R.A. No. 6645, as amended, for COMELEC to "call x x x a special election x x
x not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy" and
give notice of the office to be filled. The COMELECs failure to so call and give notice will
nullify any attempt to hold a special election to fill the vacancy. Indeed, it will be well-nigh
impossible for the voters in the congressional district involved to know the time and place of
the special election and the office to be filled unless the COMELEC so notifies them.
No Proof that COMELECs
Failure
to
Give
to
be
Filled
Determining
the
Election Misled Voters

Notice
and
Winner

of
the
in

the
Manner
the

Office
of
Special

The test in determining the validity of a special election in relation to the failure to give notice
of the special election is whether the want of notice has resulted in misleading a sufficient
number of voters as would change the result of the special election. If the lack of official
notice misled a substantial number of voters who wrongly believed that there was no special
election to fill a vacancy, a choice by a small percentage of voters would be void. 32
The required notice to the voters in the 14 May 2001 special senatorial election covers two
matters. First, that COMELEC will hold a special election to fill a vacant single three-year
term Senate seat simultaneously with the regular elections scheduled on the same date.
Second, that COMELEC will proclaim as winner the senatorial candidate receiving the 13th
highest number of votes in the special election. Petitioners have neither claimed nor proved
that COMELECs failure to give this required notice misled a sufficient number of voters as
would change the result of the special senatorial election or led them to believe that there was
no such special election.

Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no
special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as
amended, charged those who voted in the elections of 14 May 2001 with the knowledge that
the vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in
February 2001 was to be filled in the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC does not preclude the possibility that
the voters had actual notice of the special election, the office to be voted in that election, and
the manner by which COMELEC would determine the winner. Such actual notice could come
from many sources, such as media reports of the enactment of R.A. No. 6645 and election
propaganda during the campaign.33
More than 10 million voters cast their votes in favor of Honasan, the party who stands most
prejudiced by the instant petition. We simply cannot disenfranchise those who voted for
Honasan, in the absence of proof that COMELECs omission prejudiced voters in the exercise
of their right of suffrage so as to negate the holding of the special election. Indeed, this Court
is loathe to annul elections and will only do so when it is "impossible to distinguish what votes
are lawful and what are unlawful, or to arrive at any certain result whatever, or that the great
body of the voters have been prevented by violence, intimidation, and threats from exercising
their franchise."34
Otherwise, the consistent rule has been to respect the electorates will and let the results of the
election stand, despite irregularities that may have attended the conduct of the elections. 35 This
is but to acknowledge the purpose and role of elections in a democratic society such as ours,
which is:
to give the voters a direct participation in the affairs of their government, either in determining
who shall be their public officials or in deciding some question of public interest; and for that
purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their
ballot. When that is done and no frauds have been committed, the ballots should be counted
and the election should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of the
election officers, for which they are in no way responsible. A different rule would make the
manner and method of performing a public duty of greater importance than the duty itself. 36
(Emphasis in the original)
Separate
Documentation
not Required under Section 2 of R.A. No. 6645,

and

Canvassing

Neither is there basis in petitioners claim that the manner by which COMELEC conducted the
special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast for the special election. No
such requirements exist in our election laws. What is mandatory under Section 2 of R.A. No.
6645 is that COMELEC "fix the date of the election," if necessary, and "state, among others,

the office or offices to be voted for." Similarly, petitioners reliance on Section 73 of B.P. Blg.
881 on the filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the
printing of election returns and tally sheets, to support their claim is misplaced. These
provisions govern elections in general and in no way require separate documentation of
candidates or separate canvass of votes in a jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special election on 14 May
2001 merely implemented the procedure specified by the Senate in Resolution No. 84.
Initially, the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad
("Senator Tatad") made no mention of the manner by which the seat vacated by former
Senator Guingona would be filled. However, upon the suggestion of Senator Raul Roco
("Senator Roco"), the Senate agreed to amend Resolution No. 84 by providing, as it now
appears, that "the senatorial candidate garnering the thirteenth (13th) highest number of votes
shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr." Senator
Roco introduced the amendment to spare COMELEC and the candidates needless
expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate
Resolution No. 934 [later converted to Resolution No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is
approved.
Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of
the Body, the Secretary will read only the title and text of the resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE
AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP
SUCH VACANCY THROUGH ELECTION TO BE HELD SIMULTANEOUSLY WITH THE
REGULAR ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED TO
SERVE ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in
1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo
nominated Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all
the members of both House of Congress, voting separately;

WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the
Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all
elective Members of the House of Representatives, and all elective provincial city and
municipal officials shall be held on the second Monday and every three years thereafter; Now,
therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the
existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to
fill up such vacancy through election to be held simultaneously with the regular election on
May 14, 2001 and the Senator thus elected to serve only for the unexpired term.
Adopted,
(Sgd.)
Senator

FRANCISCO

S.

TATAD

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.
S[ENATOR] O[SMEA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.
S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority
Leader, Chairman of the Committee on Rules, author of this resolution, yield for a few
questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a
vacant seat in the Senate. As a matter of fact, the one who was elected in that special election
was then Congressman, later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In other words, the electorate
had to cast a vote for a ninth senator because at that time there were only eight to elect a
member or rather, a candidate to that particular seat.

Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were
24 candidates and the first 12 were elected to a six-year term and the next 12 were elected to a
three-year term.
My question therefore is, how is this going to be done in this election? Is the candidate with
the 13th largest number of votes going to be the one to take a three-year term? Or is there
going to be an election for a position of senator for the unexpired term of Sen. Teofisto
Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the
Commission on Elections. But personally, I would like to suggest that probably, the candidate
obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term
of Senator Guingona.
S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to conduct such an
election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am
rising here because I think it is something that we should consider. I do not know if we can
No, this is not a Concurrent Resolution.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a
special election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections
that will be held simultaneously as a special election under this law as we understand it.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.

T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is
needed is a resolution of this Chamber calling attention to the need for the holding of a special
election to fill up the vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better,
Mr. President.

It can be managed in the Commission on Elections so that a slot for the particular candidate to
fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be
arranged in such a manner.

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not
believe that there will be anyone running specifically

T[HE] P[RESIDENT]. What does the sponsor say?

T[HE] P[RESIDENT]. Correct.

xxxx
S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning nationwide.
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect
that in the simultaneous elections, the 13th placer be therefore deemed to be the special
election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better
for the candidates. It is also less expensive because the ballot will be printed and there will be
less disfranchisement.

T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be
running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no
other amendment, I move for the adoption of this resolution.

xxxx

WHEREFORE, we DISMISS the petition for lack of merit. SO ORDERED

ADOPTION OF S. RES. NO. 934

G.R. No. 157013

If there are no other proposed amendments, I move that we adopt this resolution.

ATTY. ROMULO B. MACALINTAL, petitioner,

vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity
as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department
of Budget and Management, respondents.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection?
[Silence] There being none, the motion is approved.37
Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct
the special election within the confines of R.A. No. 6645, merely chose to adopt the Senates
proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and
affirmed COMELECs wide latitude of discretion in adopting means to carry out its mandate
of ensuring free, orderly, and honest elections subject only to the limitation that the means so
adopted are not illegal or do not constitute grave abuse of discretion. 38 COMELECs decision
to abandon the means it employed in the 13 November 1951 and 8 November 1955 special
elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of
its discretion. Conversely, this Court will not interfere should COMELEC, in subsequent
special senatorial elections, choose to revert to the means it followed in the 13 November 1951
and 8 November 1955 elections. That COMELEC adopts means that are novel or even
disagreeable is no reason to adjudge it liable for grave abuse of discretion. As we have earlier
noted:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government.1wphi1 In the discharge of its functions, it
should not be hampered with restrictions that would be fully warranted in the case of a less
responsible organization. The Commission may err, so may this Court also. It should be
allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created free, orderly and honest
elections. We may not agree fully with its choice of means, but unless these are clearly illegal
or constitute gross abuse of discretion, this court should not interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the electorate of
necessary information regarding a special election, are central to an informed exercise of the
right of suffrage. While the circumstances attendant to the present case have led us to conclude
that COMELECs failure to so call and give notice did not invalidate the special senatorial
election held on 14 May 2001, COMELEC should not take chances in future elections. We
remind COMELEC to comply strictly with all the requirements under applicable laws relative
to the conduct of regular elections in general and special elections in particular.

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.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other
Purposes," appropriates funds under Section 29 thereof which provides that a supplemental
budget on the General Appropriations Act of the year of its enactment into law shall provide
for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have
the right to restrain officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail the validity of a law
appropriating public funds3 because expenditure of public funds by an officer of the State for
the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4
The challenged provision of law involves a public right that affects a great number of citizens.
The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has
seriously and convincingly presented an issue of transcendental significance to the Filipino
people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or interest
are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Courts duty, under the 1987
Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of these petitions. 6

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of
suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a government
official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the
Rules of Court, dims in light of the importance of the constitutional issues raised by the
petitioner. In Taada vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an
action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld."
Once a "controversy as to the application or interpretation of constitutional provision
is raised before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been expressed that it is
illogical to await the adverse consequences of the law in order to consider the controversy
actual and ripe for judicial resolution.8 In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only criterion
will be the Constitution and God as its conscience gives it in the light to probe its
meaning and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate "to make the hammer fall heavily," where the acts of these
departments, or of any official, betray the peoples will as expressed in the
Constitution . . .9
The need to consider the constitutional issues raised before the Court is further buttressed by
the fact that it is now more than fifteen years since the ratification of the 1987 Constitution
requiring Congress to provide a system for absentee voting by qualified Filipinos abroad.
Thus, strong reasons of public policy demand that the Court resolves the instant petition 10 and
determine whether Congress has acted within the limits of the Constitution or if it had gravely
abused the discretion entrusted to it.11
The petitioner raises three principal questions:

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?
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?
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?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting under
this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
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 cites the ruling of the Court in Caasi vs. Court of Appeals12 to
support his claim. In that case, the Court held that a "green card" holder immigrant to the
United States is deemed to have abandoned his domicile and residence in the Philippines.
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.14 He claims that the right of suffrage should not be granted to anyone who, on
the date of the election, does not possess the qualifications provided for by Section 1, Article
V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. 15
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.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a
verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he
cites Co vs. Electoral Tribunal of the House of Representatives 16 wherein the Court held that
the term "residence" has been understood to be synonymous with "domicile" under both
Constitutions. He further argues that a person can have only one "domicile" but he can have
two residences, one permanent (the domicile) and the other temporary; 17 and that the definition
and meaning given to the term residence likewise applies to absentee voters. Invoking
Romualdez-Marcos vs. COMELEC18 which reiterates the Courts ruling in Faypon vs.
Quirino,19 the Solicitor General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine domicile. 20
Taking issue with the petitioners contention that "green card" holders are considered to have
abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to
discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of
the requisite affidavits, the Congress of the Philippines with the concurrence of the President
of the Republic had in fact given these immigrants and permanent residents the opportunity,
pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never
abandoned their Philippine domicile; that indubitably, they would have formally and

categorically expressed the requisite intentions, i.e., "animus manendi" and "animus
revertendi;" that Filipino immigrants and permanent residents abroad possess the
unquestionable right to exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A. No. 9189. 22
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:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest
and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot.
Towards this end, the State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of
the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
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)
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)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months immediately preceding the election. No literacy,
property, or other substantive requirement shall be imposed on the exercise of
suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos
abroad.

. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by
(1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen
years of age, (4) who are residents in the Philippines for at least one year and in the place
where they propose to vote for at least six months immediately preceding the election. Under
Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or
permanent resident who is recognized as such in the host country unless he/she executes an
affidavit declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the
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.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression
that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent
residents overseas are perceived as having left and abandoned the Philippines to live
permanently in their host countries and therefore, a provision in the law enfranchising those
who do not possess the residency requirement of the Constitution by the mere act of executing
an affidavit expressing their intent to return to the Philippines within a given period, risks a
declaration of unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights must be determined and all
public authority administered.23 Laws that do not conform to the Constitution shall be stricken
down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the
Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not
on the courts alone but on the legislature as well. The question of the validity of
every statute is first determined by the legislative department of the government
itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:

. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution

must be clear and unequivocal, for even if a law is aimed at the attainment of some
public good, no infringement of constitutional rights is allowed. To strike down a
law there must be a clear showing that what the fundamental law condemns or
prohibits, the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the
Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No.
9189. It is a basic rule in constitutional construction that the Constitution should be construed
as a whole. In Chiongbian vs. De Leon,26 the Court held that a constitutional provision should
function to the full extent of its substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document. Constitutional provisions are mandatory in
character unless, either by express statement or by necessary implication, a different intention
is manifest.27 The intent of the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the intent of its framers
through their debates in the constitutional convention. 28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2,
Article V of the Constitution that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the absence of restrictions,
Congress is presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of
absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct
from the regular system of voting, and to be a new and different manner of voting
from that previously known, and an exception to the customary and usual manner of
voting. The right of absentee and disabled voters to cast their ballots at an election
is purely statutory; absentee voting was unknown to, and not recognized at, the
common law.
Absentee voting is an outgrowth of modern social and economic conditions devised
to accommodate those engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on the day of election, and the
privilege of absentee voting may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions, which provide in varying terms
for the casting and reception of ballots by soldiers and sailors or other qualified
voters absent on election day from the district or precinct of their residence.

Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate
with equality among all the class to which it is granted; but statutes of this
nature may be limited in their application to particular types of elections. The
statutes should be construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to amendment and
to predecessor statutes and the decisions thereunder; they should also be construed
in the light of the circumstances under which they were enacted; and so as to carry
out the objects thereof, if this can be done without doing violence to their provisions
and mandates. Further, in passing on statutes regulating absentee voting, the court
should look to the whole and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption, and try to give effect to every
portion thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time,
both a resident and an absentee. 30 However, under our election laws and the countless
pronouncements of the Court pertaining to elections, an absentee remains attached to his
residence in the Philippines as residence is considered synonymous with domicile.

"There is a difference between domicile and residence. Residence is used

to indicate a place of abode, whether permanent or temporary; domicile
denotes a fixed permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence
coupled with the intention to remain for an unlimited time. A man can
have but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place
of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile."
For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this
country, the framers of the Constitution considered the circumstances that impelled them to
require Congress to establish a system for overseas absentee voting, thus:

In Romualdez-Marcos,31 the Court enunciated:

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of
habitual residence." In Ong vs. Republic, this court took the concept of domicile to
mean an individuals "permanent home," "a place to which, whenever absent for
business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." Based on the foregoing,
domicile includes the twin elements of "the fact of residing or physical presence in a
fixed place" and animus manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given area,
community or country. The essential distinction between residence and domicile in
law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as
pleasure, business, or health. If a persons intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established it is residence.
It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile
of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage,
which here has a residential restriction, is not denied to citizens temporarily residing
or working abroad. Based on the statistics of several government agencies, there
ought to be about two million such Filipinos at this time. Commissioner Bernas had
earlier pointed out that these provisions are really lifted from the two previous
Constitutions of 1935 and 1973, with the exception of the last paragraph. They could
not therefore have foreseen at that time the phenomenon now described as the
Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of
workers are to be found in the Middle East, they are scattered in 177 countries in the
world.
In a previous hearing of the Committee on Constitutional Commissions and
Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that
there was no insuperable obstacle to making effective the right of suffrage for
Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient
foreign citizenship. And those who on their own or under pressure of economic
necessity here, find that they have to detach themselves from their families to work
in other countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no intention of

changing their residence on a permanent basis, but are technically disqualified from
exercising the right of suffrage in their countries of destination by the residential
requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the
election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino
citizens an effective, rather than merely a nominal right under this proposed
Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just
saying that, I would like to make a comment on the meaning of "residence" in the
Constitution because I think it is a concept that has been discussed in various
decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of "residence" in the Election
Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as
the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not
absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one,
and is not willing to give up or lose the opportunity to choose the officials
who are to run the government especially in national elections. Despite
such registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his residence
of origin has not been deemed sufficient to consider abandonment or loss of such residence of
origin.

as residence in the Philippines is concerned, the word "residence" means domicile,

but as far as residence in the place where he will actually cast his ballot is
concerned, the meaning seems to be different. He could have a domicile somewhere
else and yet he is a resident of a place for six months and he is allowed to vote there.
So that there may be serious constitutional obstacles to absentee voting, unless the
vote of the person who is absent is a vote which will be considered as cast in the
place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy
the right of suffrage, at least a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that when this Article of the
Constitution explicitly and unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of global proportions. In
effect, this will require budgetary and administrative commitments on the part of the
Philippine government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put
in place to make effective the right to vote. Therefore, seeking shelter in some wise
jurisprudence of the past may not be sufficient to meet the demands of the right of
suffrage for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be entertained at the
proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
reside abroad principally for economic reasons and hence they contribute in no small measure
to the economic uplift of this country, their voices are marginal insofar as the choice of this
countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering the
novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with
the right to vote would spawn constitutional problems especially because the Constitution
itself provides for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod
if the term "absentee voting" also includes transient voting; meaning, those who are,
let us say, studying in Manila need not go back to their places of registration, for
instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

In other words, "residence" in this provision refers to two residence qualifications:

"residence" in the Philippines and "residence" in the place where he will vote. As far

MR. REGALADO. How about those people who cannot go back to the places where
they are registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing
students and military people who are temporarily in another place to register and
vote. I believe that those situations can be covered by the Omnibus Election Code.
The reason we want absentee voting to be in the Constitution as a mandate to the
legislature is that there could be inconsistency on the residence rule if it is just a
question of legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.34 (Emphasis supplied)

FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is
flexible. For instance, one might be a resident of Naga or domiciled therein, but he
satisfies the requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change
the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY
FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the
Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy
the requirement?

Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems
that could impede the implementation of its pursuit to enfranchise the largest number of
qualified Filipinos who are not in the Philippines that the Constitutional Commission
explicitly mandated Congress to provide a system for overseas absentee voting.

THE PRESIDENT. What does Commissioner Monsod say?

The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee
voting for qualified Filipinos abroad is enlightening:

MR. TINGSON. That is right. So does the Committee accept?

MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED
FILIPINOS ABROAD" because "QUALIFIED" would assume that he has the
qualifications and none of the disqualifications to vote.

FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?

MR. SUAREZ. May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided in the
Philippines for at least one year and in the place where they propose to vote for at
least six months preceding the elections. What is the effect of these mandatory
requirements on the matter of the exercise of the right of suffrage by the absentee
voters like Filipinos abroad?

THE PRESIDENT. Does the Committee accept the amendment?

THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed

amendment, I specifically stated that the National Assembly shall prescribe a system
which will enable qualified citizens, temporarily absent from the Philippines, to
vote. According to Commissioner Monsod, the use of the phrase "absentee voting"
already took that into account as its meaning. That is referring to qualified Filipino
citizens temporarily abroad.

MR. MONSOD. I believe the answer was already given by Commissioner Bernas,
that the domicile requirements as well as the qualifications and disqualifications
would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example, to
require where the registration is. If it is, say, members of the diplomatic corps
who may be continuously abroad for a long time, perhaps, there can be a
system of registration in the embassies. However, we do not like to preempt the
legislative assembly.

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

provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in
Section 1 shall remain except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by Commissioner
Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption
is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning
the provision on absentee voting, the Constitutional Commission discussed how the system
should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in
the case of qualified Filipino citizens residing abroad and exercising their right of
suffrage, they can cast their votes for the candidates in the place where they were
registered to vote in the Philippines. So as to avoid any complications, for example,
if they are registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote
only for the local and national candidates in Angeles City. I just want to make that
clear for the record.

residing abroad; he may just be there on a business trip. It just so happens that the
day before the elections he has to fly to the United States, so he could not cast his
vote. He is temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos temporarily residing
abroad. But as long as he is temporarily abroad on the date of the elections, then
he can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily
abroad," it need not be on very short trips. One can be abroad on a treaty traders
visa. Therefore, when we talk about registration, it is possible that his residence is in
Angeles and he would be able to vote for the candidates in Angeles, but Congress or
the Assembly may provide the procedure for registration, like listing ones name,
in a registry list in the embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod
agrees with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the
voting age while living abroad and he has never registered here. Where will he
register? Will he be a registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply
with the registration requirements in an embassy in the United States and his name is
then entered in the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.

MR. REGALADO. Madam President.

THE PRESIDENT. What does Commissioner Regalado say?

MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are
more clarifications needed from the body.

MR. REGALADO. I just want to make a note on the statement of Commissioner

Suarez that this envisions Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad. He may not be actually

Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments.36 (Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines,
and consider them qualified as voters for the first time.

As the gentleman and I know, Mr. President, "domicile" is the intent to return to
ones home. And the fact that a Filipino may have been physically absent from the
Philippines and may be physically a resident of the United States, for example, but
has a clear intent to return to the Philippines, will make him qualified as a
resident of the Philippines under this law.

It is in pursuance of that intention that the Commission provided for Section 2 immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in
statutory construction, which may be applied in construing constitutional provisions, 37 the
strategic location of Section 2 indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos who are not in the
Philippines may be allowed to vote even though they do not satisfy the residency requirement
in Section 1, Article V of the Constitution.

This is consistent, Mr. President, with the constitutional mandate that we that
Congress must provide a franchise to overseas Filipinos.

That Section 2 of Article V of the Constitution is an exception to the residency requirement

found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the Constitution
is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in the
Philippines." They are permanent immigrants. They have changed residence so they
are barred under the Constitution. This is why I asked whether this committee
amendment which in fact does not alter the original text of the bill will have any
effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various
fora. This is in compliance with the Constitution. One, the interpretation here of
"residence" is synonymous with "domicile."

If we read the Constitution and the suffrage principle literally as demanding

physical presence, then there is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article
V, it reads: "The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified Filipinos
abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words,
anything that we may do or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified. Absent the qualification, they
cannot vote. And "residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called "green-card holders", but
the Constitution is the Constitution. We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair the Constitution.
Look at what the Constitution says "In the place wherein they propose to vote for
at least six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are
separated only by a creek. But one who votes in Makati cannot vote in Pateros
unless he resides in Pateros for six months. That is how restrictive our Constitution
is. I am not talking even about the Election Code. I am talking about the
Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so.
But he must do so, make the transfer six months before the election, otherwise, he is
not qualified to vote.

That is why I am raising this point because I think we have a fundamental difference
here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already
well-debated even in the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the six-month/one-year
residency requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is
so well-entrenched that one need not argue about it "residency" has been
interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is exactly
the whole point of this exercise to enfranchise them and empower them to
vote.38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
process, to wit:
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.
which does not require physical residency in the Philippines; and Section 5 of the assailed law
which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under
this Act:

under Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty: Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority in the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments concerned, unless such
competent authority subsequently certifies that such person is no longer insane or
incompetent.
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.

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have
pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined

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 presumption of abandonment of Philippine
domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why the
Senate required the execution of said affidavit. It wanted the affiant to exercise the option to
return or to express his intention to return to his domicile of origin and not to preempt that
choice by legislation. Thus:

But what we are trying to do here, Mr. President, is really provide the choice to
the voter. The voter, after consulting his lawyer or after deliberation within the
family, may decide "No, I think we are risking our permanent status in the United
States if we file an affidavit that we want to go back." But we want to give him the
opportunity to make that decision. We do not want to make that decision for him.
39
(Emphasis supplied)

Senator Villar. Yes, we are going back.

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case because the
Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who
are immigrants and permanent residents in their host countries.

It states that: "For Filipino immigrants and those who have acquired permanent
resident status abroad," a requirement for the registration is the submission of "a
Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or
consulate official authorized to administer oath"

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.

Mr. President, may we know the rationale of this provision? Is the purpose of this
Sworn Declaration to include only those who have the intention of returning to be
qualified to exercise the right of suffrage? What if the Filipino immigrant has no
purpose of returning? Is he automatically disbarred from exercising this right to
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."

Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not, he will be authorized to vote.
But if he is already a green-card holder, that means he has acquired permanent
residency in the United States, then he must indicate an intention to return.
This is what makes for the definition of "domicile." And to acquire the vote, we
thought that we would require the immigrants and the green-card holders . . . Mr.
President, the three administration senators are leaving, maybe we may ask for a
vote [Laughter].

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.
Thus, Section 11 of R.A. No. 9189 provides:

Senator Villar. For a merienda, Mr. President.

SEC. 11. Procedure for Application to Vote in Absentia.
Senator Angara. Mr. President, going back to the business at hand. The rationale
for the requirement that an immigrant or a green-card holder should file an affidavit
that he will go back to the Philippines is that, if he is already an immigrant or a
green-card holder, that means he may not return to the country any more and that
contradicts the definition of "domicile" under the law.

11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under Republic
Act No. 8189, shall, in every national election, file with the officer of the embassy,
consulate or other foreign service establishment authorized by the Commission, a
sworn written application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign service establishment

shall transmit to the Commission the said application to vote within five (5) days
from receipt thereof. The application form shall be accomplished in triplicate and
submitted together with the photocopy of his/her overseas absentee voter certificate
of registration.

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. As expressed in Taada vs. Tuvera,40 the Court is not called
upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical.

11.2. Every application to vote in absentia may be done personally at, or by mail to,
the embassy, consulate or foreign service establishment, which has jurisdiction over
the country where he/she has indicated his/her address for purposes of the elections.

Congress itself was conscious of said probability and in fact, it has addressed the expected
problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to
return as promised stands to lose his right of suffrage. Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national elections, his name may be
ordered removed from the National Registry of Overseas Absentee Voters.

11.3. Consular and diplomatic services rendered in connection with the overseas
absentee voting processes shall be made available at no cost to the overseas absentee
voter.
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 non-compliance 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

Other serious legal questions that may be raised would be: what happens to the votes cast by
the qualified voters abroad who were not able to return within three years as promised? What
is the effect on the votes cast by the non-returnees in favor of the winning candidates? The
votes cast by qualified Filipinos abroad who failed to return within three years shall not be
invalidated because they were qualified to vote on the date of the elections, but their failure to
return shall be cause for the removal of the names of the immigrants or permanent residents
from the National Registry of Absentee Voters and their permanent disqualification to vote in
absentia.
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:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the
board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the certificates of canvass,
the President of the Senate shall, not later than thirty days after the day of the
election, open all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the
votes.
The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning candidates for
president and vice-president.
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 only
proclaim the winning Senators and party-list representatives but not the President and VicePresident.41
Respondent COMELEC has no comment on the matter.
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 vicepresident.
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 vice-president 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.

It is only on this question that respondent COMELEC submitted its Comment. It agrees with
the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the
petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It asserts that its power to formulate rules
and regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held that the
power of the COMELEC to formulate rules and regulations is implicit in its power to
implement regulations under Section 2(1) of Article IX-C 43 of the Constitution. COMELEC
joins the petitioner in asserting that as an independent constitutional body, it may not be
subject to interference by any government instrumentality and that only this Court may review
COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in
not more than three (3) countries, subject to the approval of the Congressional
Oversight Committee. Voting by mail may be allowed in countries that satisfy the
following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion
for fraud;
b) Where there exists a technically established identification system that would
preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies,
consulates and other foreign service establishments concerned are adequate and
well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review
and approval of the Joint Congressional Oversight Committee . . . . . . . . .
(Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence
of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
unconstitutional on the ground that there is nothing in Article VI of the Constitution on
Legislative Department that would as much as imply that Congress has concurrent power to

enforce and administer election laws with the COMELEC; and by the principles of exclusio
unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of all others.
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.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987
Constitution ordaining that constitutional commissions such as the COMELEC shall be
"independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an
independent COMELEC, the Court has held that "[w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the Constitution
wanted it to be independent from the other departments of the Government." 44 In an earlier
case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a
distinct and important part in our scheme of government. In the discharge of its
functions, it should not be hampered with restrictions that would be fully warranted
in the case of a less responsible organization. The Commission may err, so may this
court also. It should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it was
created free, orderly and honest elections. We may not agree fully with its choice
of means, but unless these are clearly illegal or constitute gross abuse of discretion,
this court should not interfere. Politics is a practical matter, and political questions
must be dealt with realistically not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its contacts with
political strategists, and its knowledge derived from actual experience in dealing
with political controversies, is in a peculiarly advantageous position to decide
complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent
body "except those specifically granted by the Constitution," that is, to review its decisions,
orders and rulings.46 In the same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may intrude into the
independence of the COMELEC by exercising supervisory powers over its rule-making
authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty days from the effectivity of this Act." This provision of law follows the usual procedure
in drafting rules and regulations to implement a law the legislature grants an administrative

agency the authority to craft the rules and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in its particular field of operation. 47
Once a law is enacted and approved, the legislative function is deemed accomplished and
complete. The legislative function may spring back to Congress relative to the same law only
if that body deems it proper to review, amend and revise the law, but certainly not to approve,
review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The
Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional
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.
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.
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
d) The second sentence in the second paragraph of Section 25, to wit: " It shall
review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence
of constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the
authority given to the COMELEC to proclaim the winning candidates for the Senators and
party-list representatives but not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged with Congress under Section 4,
Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be
in full force and effect. SO ORDERED.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.
A constitutional provision should be construed as to give it effective operation and suppress
the mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for
election to the House of Representatives be "a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one year immediately preceding
the election." 2 The mischief which this provision reproduced verbatim from the 1973

Constitution seeks to prevent is the possibility of a "stranger or newcomer unacquainted

with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March
8, 1995, providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED
IMMEDIATELY PRECEDING
THE
ELECTION:
__________ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of
the First District of Leyte and a candidate for the same position, filed a "Petition for
Cancellation and Disqualification" 5 with the Commission on Elections alleging that petitioner
did not meet the constitutional requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year residency requirement for
candidates for the House of Representatives on the evidence of declarations made by her in
Voter Registration Record 94-No. 3349772 6 and in her Certificate of Candidacy. He prayed
that "an order be issued declaring (petitioner) disqualified and canceling the certificate of
candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing
the entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On
the same day, the Provincial Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of
Candidacy on the ground that it is filed out of time, the deadline for the
filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on or
before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the
COMELEC's
Head
Office
in
Intramuros,
Manila
on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise
filed with the head office on the same day. In said Answer, petitioner averred that the entry of
the word "seven" in her original Certificate of Candidacy was the result of an "honest
misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban
City as her domicile or residence. 11 Impugning respondent's motive in filing the petition
seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to

register as a voter in Tacloban City and run for Congress in the First
District of Leyte, petitioner immediately opposed her intended registration
by writing a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual residence therein,
petitioner filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to remove respondent as
petitioner's opponent in the congressional election in the First District. He
also filed a bill, along with other Leyte Congressmen, seeking the creation
of another legislative district to remove the town of Tolosa out of the First
District, to achieve his purpose. However, such bill did not pass the
Senate. Having failed on such moves, petitioner now filed the instant
petition for the same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the electorate of the
First District of Leyte in an honest, orderly, peaceful, free and clean
elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a
vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended
Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and
petitioner's compliance with the one year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer that the printed
word "Seven" (months) was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an amendment should
subsequently be allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not residence of
origin or domicile in the First Legislative District, to which she could have
responded "since childhood." In an accompanying affidavit, she stated that
her domicile is Tacloban City, a component of the First District, to which
she always intended to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to discredit
petitioner's theory of disqualification by alleging that she has been a
resident of the First Legislative District of Leyte since childhood, although
she only became a resident of the Municipality of Tolosa for seven
months. She asserts that she has always been a resident of Tacloban City, a
component of the First District, before coming to the Municipality of
Tolosa.

Along this point, it is interesting to note that prior to her registration in

Tolosa, respondent announced that she would be registering in Tacloban
City so that she can be a candidate for the District. However, this intention
was rebuffed when petitioner wrote the Election Officer of Tacloban not to
allow respondent since she is a resident of Tolosa and not Tacloban. She
never disputed this claim and instead implicitly acceded to it by
registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or
honest mistake." Besides, the Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer, she was quite aware of
"residence of origin" which she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her actual and physical
presence in Tolosa is not easy to believe because there is none in the
question that insinuates about Tolosa. In fact, item no. 8 in the Certificate
of Candidacy speaks clearly of "Residency in the CONSTITUENCY where
I seek to be elected immediately preceding the election." Thus, the
explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may be
made, she cited the case of Alialy v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of Alialy is misplaced. The case only
applies to the "inconsequential deviations which cannot affect the result of
the election, or deviations from provisions intended primarily to secure
timely and orderly conduct of elections." The Supreme Court in that case
considered the amendment only as a matter of form. But in the instant
case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of residence
in the place where respondent seeks to be elected is a substantial matter
which determines her qualification as a candidacy, specially those
intended to suppress, accurate material representation in the original
certificate which adversely affects the filer. To admit the amended
certificate is to condone the evils brought by the shifting minds of
manipulating candidate, of the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of
her residency in order to prolong it by claiming it was "since childhood" is
to allow an untruthfulness to be committed before this Commission. The
arithmetical accuracy of the 7 months residency the respondent indicated

in her certificate of candidacy can be gleaned from her entry in her Voter's
Registration Record accomplished on January 28, 1995 which reflects that
she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of
the said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she can be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's consistent conviction that she
has transferred her residence to Olot, Tolosa, Leyte from Metro Manila
only for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy
cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is clear
that respondent has not complied with the one year residency requirement
of the Constitution.
In election cases, the term "residence" has always been considered as
synonymous with "domicile" which imports not only the intention to
reside in a fixed place but also personal presence in-that place, coupled
with conduct indicative of such intention. Domicile denotes a fixed
permanent residence to which when absent for business or pleasure, or for
like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96
Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in 1991, the residence she chose
was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the
First District since childhood is nothing more than to give her a color of
qualification where she is otherwise constitutionally disqualified. It cannot
hold ground in the face of the facts admitted by the respondent in her
affidavit. Except for the time that she studied and worked for some years

after graduation in Tacloban City, she continuously lived in Manila. In

1959, after her husband was elected Senator, she lived and resided in San
Juan, Metro Manila where she was a registered voter. In 1965, she lived in
San Miguel, Manila where she was again a registered voter. In 1978, she
served as member of the Batasang Pambansa as the representative of the
City of Manila and later on served as the Governor of Metro Manila. She
could not have served these positions if she had not been a resident of the
City of Manila. Furthermore, when she filed her certificate of candidacy
for the office of the President in 1992, she claimed to be a resident of San
Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent
wrote a letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the permanent list of
voters that she may be re-registered or transferred to Barangay Olot,
Tolosa, Leyte. These facts manifest that she could not have been a resident
of Tacloban City since childhood up to the time she filed her certificate of
candidacy because she became a resident of many places, including Metro
Manila. This debunks her claim that prior to her residence in Tolosa,
Leyte, she was a resident of the First Legislative District of Leyte since
childhood.
In this case, respondent's conduct reveals her lack of intention to make
Tacloban her domicile. She registered as a voter in different places and on
several occasions declared that she was a resident of Manila. Although she
spent her school days in Tacloban, she is considered to have abandoned
such place when she chose to stay and reside in other different places. In
the case of Romualdez vs. RTC (226 SCRA 408) the Court explained how
one acquires a new domicile by choice. There must concur: (1) residence
or bodily presence in the new locality; (2) intention to remain there; and
(3) intention to abandon the old domicile. In other words there must
basically be animus manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in Manila, coupled with her
intention to stay there by registering as a voter there and expressly
declaring that she is a resident of that place, she is deemed to have
abandoned Tacloban City, where she spent her childhood and school days,
as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise
be conduct indicative of such intention. Respondent's statements to the
effect that she has always intended to return to Tacloban, without the
accompanying conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any evidence to show
that her conduct, one year prior the election, showed intention to reside in

Tacloban. Worse, what was evident was that prior to her residence in
Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the
First District of Leyte "since childhood."
To further support the assertion that she could have not been a resident of
the First District of Leyte for more than one year, petitioner correctly
pointed out that on January 28, 1995 respondent registered as a voter at
precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her
Voter Registration Record that she resided in the municipality of Tolosa
for a period of six months. This may be inconsequential as argued by the
respondent since it refers only to her residence in Tolosa, Leyte. But her
failure to prove that she was a resident of the First District of Leyte prior
to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc
denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring
her not qualified to run for the position of Member of the House of Representatives for the
First Legislative District of Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the Commission
RESOLVED to DENY it, no new substantial matters having been raised
therein to warrant re-examination of the resolution granting the petition for
disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation
should the results of the canvass show that she obtained the highest number of votes in the
congressional elections in the First District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second Resolution directing that the proclamation of
petitioner be suspended in the event that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the
overwhelming winner of the elections for the congressional seat in the First District of Leyte
held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on
May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471
votes compared to the 36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat
of the First District of Leyte and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues
may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the First
District of Leyte for a period of one year at the time of the May 9, 1995
elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the Omnibus
Election Code for disqualification cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed
exclusive jurisdiction over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion
in the application of settled concepts of "Domicile" and "Residence" in election law. While the
COMELEC seems to be in agreement with the general proposition that for the purposes of
election law, residence is synonymous with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual residence, a conception not intended
for the purpose of determining a candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of
meeting the qualification for an elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment
of civil obligations, the domicile of natural persons is their place of habitual residence." In
Ong vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent
home", "a place to which, whenever absent for business or for pleasure, one intends to return,

and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the
foregoing, domicile includes the twin elements of "the fact of residing or physical presence in
a fixed place" and animus manendi, or the intention of returning there permanently.

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

Residence, in its ordinary conception, implies the factual relationship of an individual to a

certain place. It is the physical presence of a person in a given area, community or country.
The essential distinction between residence and domicile in law is that residence involves the
intent to leave when the purpose for which the resident has taken up his abode ends. One may
seek a place for purposes such as pleasure, business, or health. If a person's intent be to
remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it
is residence. 22 It is thus, quite perfectly normal for an individual to have different residences
in various places. However, a person can only have a single domicile, unless, for various
reasons, he successfully abandons his domicile in favor of another domicile of choice. In
Uytengsu vs. Republic, 23 we laid this distinction quite clearly:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971

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

There is a difference between domicile and residence. "Residence" is used

to indicate a place of abode, whether permanent or temporary; "domicile"
denotes a fixed permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence
coupled with the intention to remain for an unlimited time. A man can
have but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place
of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our election law, what has clearly
and unequivocally emerged is the fact that residence for election purposes is used
synonymously with domicile.
24

In Nuval vs. Guray, the Court held that "the term residence. . . is synonymous with domicile
which imports not only intention to reside in a fixed place, but also personal presence in that
place, coupled with conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the
same doctrine in a case involving the qualifications of the respondent therein to the post of
Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the
absence from residence to pursue studies or practice a profession or registration as a voter
other than in the place where one is elected does not constitute loss of residence. 28 So settled
is the concept (of domicile) in our election law that in these and other election law cases, this
Court has stated that the mere absence of an individual from his permanent residence without
the intention to abandon it does not result in a loss or change of domicile.

Mr. Davide: Madame President, insofar as the regular members of the

National Assembly are concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in the district for a period
of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it was
domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has been
interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper
time to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on Suffrage
says that Filipinos living abroad may vote as enacted by law. So, we have
to stick to the original concept that it should be by domicile and not
physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the
framers of the 1987 Constitution obviously adhered to the definition given to the term
residence in election law, regarding it as having the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied
the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what

significance is the questioned entry in petitioner's Certificate of Candidacy stating her

residence in the First Legislative District of Leyte as seven (7) months?

should not, however, be allowed to negate the fact of residence in the First District if such fact
were established by means more convincing than a mere entry on a piece of paper.

It is the fact of residence, not a statement in a certificate of candidacy which ought to be

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

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

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

In support of its asseveration that petitioner's domicile could not possibly be in the First
District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April
24,1995 maintains that "except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in Manila." The Resolution
additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be
any place where she lived in the last few decades except Tacloban, Leyte. First, according to
the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also
registered voter. Then, in 1965, following the election of her husband to the Philippine
presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she
served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not,
have served these positions if she had not been a resident of Metro Manila," the COMELEC
stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his domicile even if he
has lived and maintained residences in different places. Residence, it bears repeating, implies a
factual relationship to a given place for various purposes. The absence from legal residence or
domicile to pursue a profession, to study or to do other things of a temporary or semipermanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC
that "she could not have been a resident of Tacloban City since childhood up to the time she
filed her certificate of candidacy because she became a resident of many places" flies in the
face of settled jurisprudence in which this Court carefully made distinctions between (actual)
residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE
ELECTED
IMMEDIATELY
PRECEDING
THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in Leyte
instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period
of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8
the first requiring actual residence and the second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be disqualified. This honest mistake

[T]his court is of the opinion and so holds that a person who has his own
house wherein he lives with his family in a municipality without having
ever had the intention of abandoning it, and without having lived either
alone or with his family in another municipality, has his residence in the
former municipality, notwithstanding his having registered as an elector in
the other municipality in question and having been a candidate for various
insular and provincial positions, stating every time that he is a resident of
the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as
the saying goes, to improve his lot, and that, of course includes study in
other places, practice of his avocation, or engaging in business. When an

election is to be held, the citizen who left his birthplace to improve his lot
may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not
absent himself from his professional or business activities; so there he
registers himself as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials who are to
run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him. This may be the explanation why
the registration of a voter in a place other than his residence of origin has
not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every
person to return to his place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its
proposition that petitioner was ineligible to run for the position of Representative of the First
District of Leyte, the COMELEC was obviously referring to petitioner's various places of
(actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on
residence in election law and the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the fact of
petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed
Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese School,
still in Tacloban City. In 1952 she went to Manila to work with her cousin,
the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos
when he was still a congressman of Ilocos Norte and registered there as a
voter. When her husband was elected Senator of the Republic in 1959, she
and her husband lived together in San Juan, Rizal where she registered as
a voter. In 1965, when her husband was elected President of the Republic
of the Philippines, she lived with him in Malacanang Palace and registered
as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted
and kidnapped to Honolulu, Hawaii. In November 1991, she came home
to Manila. In 1992, respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable is that
petitioner held various residences for different purposes during the last four decades. None of
these purposes unequivocally point to an intention to abandon her domicile of origin in
Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there
and eventually established residence in different parts of the country for various reasons. Even
during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept
her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her
birthdays and other important personal milestones in her home province, instituting wellpublicized projects for the benefit of her province and hometown, and establishing a political
power base where her siblings and close relatives held positions of power either through the
ballot or by appointment, always with either her influence or consent. These well-publicized
ties to her domicile of origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or
the majority of the COMELEC did not know what the rest of the country always knew: the
fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of
origin because she did not live there until she was eight years old. He avers that after leaving
the place in 1952, she "abandoned her residency (sic) therein for many years and . . . (could
not) re-establish her domicile in said place by merely expressing her intention to live there
again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is retained until a
new one is gained, it follows that in spite of the fact of petitioner's being born in Manila,
Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not
established only when her father brought his family back to Leyte contrary to private
respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one
must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and
establishing a new one; and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin
should be deemed to continue. Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one cannot have two legal
residences at the same time. 38 In the case at bench, the evidence adduced by private
respondent plainly lacks the degree of persuasiveness required to convince this court that an
abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect
an abandonment requires the voluntary act of relinquishing petitioner's former domicile with
an intent to supplant the former domicile with one of her own choosing (domicilium
voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by
operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952.
For there is a clearly established distinction between the Civil Code concepts of "domicile"
and "residence." 39 The presumption that the wife automatically gains the husband's domicile
by operation of law upon marriage cannot be inferred from the use of the term "residence" in
Article 110 of the Civil Code because the Civil Code is one area where the two concepts are
well delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and
residence. Both terms imply relations between a person and a place; but in
residence, the relation is one of fact while in domicile it is legal or
juridical, independent of the necessity of physical presence. 40

de esta obligacion cuando el marido transende su residencia a ultramar o' a

pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article,
which means wherever (the husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a positive act of fixing a family
home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando
el marido translade su residencia" in the same provision which means, "when the husband
shall transfer his residence," referring to another positive act of relocating the family to
another home or place of actual residence. The article obviously cannot be understood to refer
to
domicile
which
is
a
fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one
place to another not only once, but as often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law
to strengthen and unify the family, recognizing the fact that the husband and the wife bring
into the marriage different domiciles (of origin). This difference could, for the sake of family
unity, be reconciled only by allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading:
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding
Article 110 is Article 109 which obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are obligated to live together, observe
mutual respect and fidelity and render mutual help and support.

Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he should live
abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as
they affect the female spouse upon marriage yields nothing which would suggest that the
female spouse automatically loses her domicile of origin in favor of the husband's choice of
residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which
states:
La mujer esta obligada a seguir a su marido donde quiera que fije su
residencia. Los Tribunales, sin embargo, podran con justa causa eximirla

The duty to live together can only be fulfilled if the husband and wife are physically together.
This takes into account the situations where the couple has many residences (as in the case of
the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife
should necessarily be with him in order that they may "live together." Hence, it is illogical to
conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be
faced with a situation where the wife is left in the domicile while the husband, for professional
or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate decision must be made from a
consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are
distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more residences,
such as a country residence and a city residence. Residence is acquired by
living in place; on the other hand, domicile can exist without actually
living in the place. The important thing for domicile is that, once residence
has been established in one place, there be an intention to stay there
permanently, even if residence is also established in some other
place. 41
In fact, even the matter of a common residence between the husband and the wife during the
marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has recognized certain situations 42 where
the spouses could not be compelled to live with each other such that the wife is either allowed
to maintain a residence different from that of her husband or, for obviously practical reasons,
revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina
vs. Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the marriage where the husband has
given cause for divorce." 44 Note that the Court allowed the wife either to obtain new residence
or to choose a new domicile in such an event. In instances where the wife actually opts, .under
the Civil Code, to live separately from her husband either by taking new residence or reverting
to her domicile of origin, the Court has held that the wife could not be compelled to live with
her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced that it is not within
the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. Of course
where the property rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But we are disinclined to
sanction the doctrine that an order, enforcible (sic) by process of contempt,
may be entered to compel the restitution of the purely personal right of
consortium. At best such an order can be effective for no other purpose
than to compel the spouses to live under the same roof; and he experience
of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is
extremely questionable. Thus in England, formerly the Ecclesiastical
Court entertained suits for the restitution of conjugal rights at the instance
of either husband or wife; and if the facts were found to warrant it, that
court would make a mandatory decree, enforceable by process of
contempt in case of disobedience, requiring the delinquent party to live
with the other and render conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to enforce such orders, and in

Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen,

President in the Probate, Divorce and Admiralty Division of the High
Court of Justice, expressed his regret that the English law on the subject
was not the same as that which prevailed in Scotland, where a decree of
adherence, equivalent to the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse, but could not be
enforced by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a decree for the restitution
of conjugal rights can still be procured, and in case of disobedience may
serve in appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so
far as we can discover, has ever attempted to make a preemptory order
requiring one of the spouses to live with the other; and that was in a case
where a wife was ordered to follow and live with her husband, who had
changed his domicile to the City of New Orleans. The decision referred to
(Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the American Union the
idea of enforcing cohabitation by process of contempt is rejected. (21
Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to
have affirmed an order of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the alternative, upon her
failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as
administrator of the ganancial property, all income, rents, and interest
which might accrue to her from the property which she had brought to the
marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for
the return of the wife to the marital domicile was sanctioned by any other
penalty than the consequences that would be visited upon her in respect to
the use and control of her property; and it does not appear that her
disobedience to that order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner
was obliged by virtue of Article 110 of the Civil Code to follow her husband's actual
place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several
places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no

showing which of these places Mr. Marcos did fix as his family's residence. But assuming that
Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained
upon marriage was actual residence. She did not lose her domicile of origin.

of a conclusion supporting petitioner's claim of legal residence or domicile in the First District
of Leyte.
II. The jurisdictional issue

On the other hand, the common law concept of "matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code
of 1950, into the New Family Code. To underscore the difference between the intentions of the
Civil Code and the Family Code drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from
that found in Article 110. The provision recognizes revolutionary changes in the concept of
women's rights in the intervening years by making the choice of domicile a product of mutual
agreement between the spouses. 46
Without as much belaboring the point, the term residence may mean one thing in civil law (or
under the Civil Code) and quite another thing in political law. What stands clear is that insofar
as the Civil Code is concerned-affecting the rights and obligations of husband and wife the
term residence should only be interpreted to mean "actual residence." The inescapable
conclusion derived from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her domicile of origin and merely
gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her
marriage and only acquired a right to choose a new one after her husband died, petitioner's
acts following her return to the country clearly indicate that she not only impliedly but
expressly chose her domicile of origin (assuming this was lost by operation of law) as her
domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the
PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in
Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a
home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in
Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary
intention clearly manifested in her letters to the PCGG Chairman. She could not have gone
straight to her home in San Juan, as it was in a state of disrepair, having been previously
looted by vandals. Her "homes" and "residences" following her arrival in various parts of
Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover,
and proceeding from our discussion pointing out specific situations where the female spouse
either reverts to her domicile of origin or chooses a new one during the subsistence of the
marriage, it would be highly illogical for us to assume that she cannot regain her original
domicile upon the death of her husband absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage itself where the wife gains a domicile
different from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court up
to this point, we are persuaded that the facts established by the parties weigh heavily in favor

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that
the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the
election in violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner
contends that it is the House of Representatives Electoral Tribunal and not the COMELEC
which has jurisdiction over the election of members of the House of Representatives in
accordance with Article VI Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified time is
generally construed to be merely directory, 49 "so that 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." 50 The difference between a mandatory and a directory provision is often
made on grounds of necessity. Adopting the same view held by several American authorities,
this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less injury
results to the general public by disregarding than enforcing the letter of the
law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute
containing a limitation of thirty (30) days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without
affecting the validity of statutory proceedings, are usually those which
relate to the mode or time of doing that which is essential to effect the aim
and purpose of the Legislature or some incident of the essential act." Thus,
in said case, the statute under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should have abstained from
rendering a decision after the period stated in the Omnibus Election Code because it lacked
jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to
render judgments merely on the ground of having failed to reach a decision within a given or
prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of
B.P. 881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and
decide a pending disqualification case under Section 78 of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction
over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that
HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and
qualifications of members of Congress begins only after a candidate has become a member of
the House of Representatives. 53 Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

through the ballot, this Court should be ever so vigilant in finding solutions which would give
effect to the will of the majority, for sound public policy dictates that all elective offices are
filled by those who have received the highest number of votes cast in an election. When a
challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility
ought to be so noxious to the Constitution that giving effect to the apparent will of the people
would ultimately do harm to our democratic institutions.
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:.

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

(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA

STS., PALM VILLAGE, MAKATI.

WHEREFORE, having determined that petitioner possesses the necessary residence

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

xxx xxx xxx

SO ORDERED.

xxx xxx xxx

(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION: ______
Years and 10 Months.

THAT I AM ELIGIBLE for said Office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto; That I will obey the law, rules and decrees
promulgated by the duly constituted authorities; That the obligation
imposed to such is assumed voluntarily, without mental reservation or
purpose of evasion, and that the facts therein are true to the best of my
knowledge. 1

AGAPITO A. AQUINO, petitioner,

vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO
ICARO, respondents.

On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon,
Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to
disqualify Agapito A. Aquino 2 on the ground that the latter lacked the residence qualification
as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution,
should be for a period not less than one (1) year immediately preceding the May 8, 1995
elections. The petition was docketed as SPA No. 95-113 and was assigned to the Second
Division of the Commission on Elections (COMELEC).

The sanctity of the people's will must be observed at all times if our nascent democracy is to
be preserved. In any challenge having the effect of reversing a democratic choice, expressed

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 (l) year and thirteen (13) days. 3

G.R. No. 120265 September 18, 1995

On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of
the disqualification case. 4
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, 5 lease
contract between petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor
Feliciano dated April 28,1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division of the COMELEC
promulgated a Resolution dated May 6, 1995, the decretal portion of which reads:
WHEREFORE, in view of the foregoing, this Commission (Second
Division) 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.
SO ORDERED. 9
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. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad
Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for
Reconsideration of the COMELEC's Second Division resolution dated May 6, 1995 and a 2nd
Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation.
The dispositive portion of the order reads:

WHEREFORE, pursuant to the provisions of Section 6 of Republic Act

No. 6646, the Board of Canvassers of the City of Makati is hereby
directed to complete the canvassing of election returns of the Second
District of Makati, but to suspend the proclamation of respondent Agapito
A. Aquino should he obtain the winning number of votes for the position
of Representative of the Second District of the City of Makati, until the
motion for reconsideration filed by the petitioners on May 7, 1995, shall
have been resolved by the Commission.
The Executive Director, this Commission, is directed to cause the
immediate implementation of this Order. The Clerk of Court of the
Commission is likewise directed to inform the parties by the fastest means
available of this Order, and to calendar the hearing of the Motion for
Reconsideration on May 17, 1995, at 10:00 in the morning, PICC Press
Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of
suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to
Resolve Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he
manifested his intention to raise, among others, the issue of whether of not the determination
of the qualifications of petitioner after the elections is lodged exclusively in the House of
Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc
issued an Order on June 2, 1995, the decretal portion thereof residing:
Pursuant to the said provisions and considering the attendant
circumstances of the case, the Commission RESOLVED to proceed with
the promulgation but to suspend its rules, to accept the filing of the
aforesaid motion, and to allow the parties to be heard thereon because the
issue of jurisdiction now before the Commission has to be studied with
more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the
resolution of the Second Division dated May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners' Motion for
Reconsideration of the Resolution of the Second Division, promulgated on

May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared

ineligible and thus disqualified as a candidate for the Office of
Representative of the Second Legislative District of Makati City in the
May 8, 1995 elections, for lack of the constitutional qualification of
residence. Consequently, the order of suspension of proclamation of the
respondent should he obtain the winning number of votes, issued by this
Commission on May 15, 1995 is now made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the City
of Makati shall immediately reconvene and, on the basis of the completed
canvass of election returns, determine the winner out of the remaining
qualified candidates, who shall be immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June
2, 1995, as well as the resolution dated June 2, 1995 issued by the COMELEC en banc.
Petitioner's raises the following errors for consideration, to wit:

RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION

HAS TO BE JUDICIOUSLY REVIEWED AGAIN, ASSUMING
ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND
SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE
SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS
THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE
MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING
THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE
PETITIONER) IF ONLY NOT TO THWART THE PEOPLE'S WILL.
D
THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE
RESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE
PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE
LAWS AND JURISPRUDENCE.
E

A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND
ADJUDGE THE DISQUALIFICATION ISSUE INVOLVING
CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995
ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND
LODGE EXCLUSIVELY WITH THE HOUSE OF REPRESENTATIVE
ELECTORAL TRIBUNAL
B
ASSUMING
ARGUENDO
THAT
THE
COMELEC
HAS
JURISDICTION, SAID JURISDICTION CEASED IN THE INSTANT
CASE AFTER THE ELECTIONS, AND THE REMEDY/IES
AVAILABLE TO THE ADVERSE PARTIES LIE/S IN ANOTHER
FORUM WHICH, IT IS SUBMITTED, IS THE HRET CONSISTENT
WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT PROCEEDED TO PROMULGATE ITS QUESTIONED
DECISION (ANNEX "C", PETITION) DESPITE IT OWN

IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING

TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING
THE
ONE
YEAR
RESIDENCY
REQUIREMENT
OF
CONGRESSIONAL
CANDIDATES
IN
NEWLY
CREATED
POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS
THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY
FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN
MAKATI OF CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO
LACK OF JURISDICTION WHEN IT ORDERED THE BOARD OF
CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER
OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE
ERRONEOUS DISQUALIFICATION OF YOUR PETITIONER IN
THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD OF THE WELL
SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR
PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A
LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE
WINNER. 15

I
In his first three assignments of error, petitioner vigorously contends that after the May 8,
1995 elections, the COMELEC lost its jurisdiction over the question of petitioner's
qualifications to run for member of the House of Representatives. He claims that jurisdiction
over the petition for disqualification is exclusively lodged with the House of Representatives
Electoral Tribunal (HRET). Given the yet unresolved question of jurisdiction, petitioner avers
that the COMELEC committed serious error and grave abuse of discretion in directing the
suspension of his proclamation as the winning candidate in the Second Congressional District
of Makati City. We disagree.
Petitioner conveniently confuses the distinction between an unproclaimed candidate to the
House of Representatives and a member of the same. Obtaining the highest number of votes in
an election does not automatically vest the position in the winning candidate. Section 17 of
Article VI of the 1987 Constitution reads:

Under the above-quoted provision, not only is a disqualification case against a candidate
allowed to continue after the election (and does not oust the COMELEC of its jurisdiction),
but his obtaining the highest number of votes will not result in the suspension or termination
of the proceedings against him when the evidence of guilt is strong. While the phrase "when
the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election Code,
Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B.P. 881. Section 7 states:
Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to petition
to deny due course to or cancel a certificate of candidacy based on Sec. 78
of Batas Pambansa 881.
II

The Senate and the House of Representatives shall have an Electoral

Tribunal which shall be the sole judge of all contests relating to the
election, returns and qualifications of their respective Members.

We agree with COMELEC's contention that 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. 17

Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all
contests relative to the election, returns and qualifications of candidates for either the Senate
or the House only when the latter become members of either the Senate or the House of
Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath of
office cannot be said to be a member of the House of Representatives subject to Section. 17 of
the Constitution. While the proclamation of a winning candidate in an election is ministerial,
B.P. 881 in conjunction with Sec 6 of R.A. 6646 allows suspension of proclamation under
circumstances mentioned therein. Thus, petitioner's contention that "after the conduct of the
election and (petitioner) has been established the winner of the electoral exercise from the
moment of election, the COMELEC is automatically divested of authority to pass upon the
question of qualification" finds no basis, because even after the elections the COMELEC is
empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide
questions relating to qualifications of candidates Section 6 states:

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
(l) year prior to the elections. 18 Residence, for election law purposes, has a settled meaning in
our jurisdiction.

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

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

In Co v. Electoral Tribunal of the House of Representatives 19 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 Court there held: 20
The deliberations of the Constitutional Commission reveal that the
meaning of residence vis-a-vis the qualifications of a candidate for
Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember
that in the 1971 Constitutional Convention, there was
an attempt to require residence in the place not less
than one year immediately preceding the day of
elections. So my question is: What is the Committee's
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular
members of the National Assembly are concerned, the

proposed section merely provides, among others, and

a resident thereof', that is, in the district, for a period
of not less than one year preceding the day of the
election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was
domicile (emphasis ours) Records of the 1987
Constitutional Convention, Vol. II, July 22, 1986, p.
87).
xxx xxx xxx
Mrs. Rosario Braid: The next question is on section 7,
page 2. I think Commissioner Nolledo has raised the
same point that "resident" has been interpreted at
times as a matter of intention rather than actual
residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But We might encounter some
difficulty especially considering that the provision in
the Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it
should be by domicile and not physical and actual
residence. (Records of the 1987 Constitutional
Commission, Vol. II, July 22, 1986, p. 110).
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," 21 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. The manifest purpose of this deviation from the usual
conceptions of residency in law as explained in Gallego vs. Vera at 22 is "to exclude strangers
or newcomers unfamiliar with the conditions and needs of the community" from taking

advantage of favorable circumstances existing in that community for electoral gain. While
there is nothing wrong with the practice of establishing residence in a given area for meeting
election law requirements, this nonetheless defeats the essence of representation, which is to
place through the assent of voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency mandated by law for him
to qualify. That purpose could be obviously best met by individuals who have either had actual
residence in the area for a given period or who have been domiciled in the same area either by
origin or by choice. It would, therefore, be imperative for this Court to inquire into the
threshold question as to whether or not petitioner actually was a resident for a period of one
year in the area now encompassed by the Second Legislative District of Makati at the time of
his election or whether or not he was domiciled in the same.
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. 23
At the time, his certificate indicated that he was also a registered voter of the same district. 24
His birth certificate places Concepcion, Tarlac as the birthplace of both of his parents Benigno
and Aurora. 25 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 this
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.
Petitioner's alleged connection with the Second District of Makati City is an alleged lease
agreement of condominium unit in the area. As the COMELEC, in its disputed Resolution
noted:
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 maybe indicative of respondent's intention to reside in Makati
City it does not engender the kind of permanency required to prove
abandonment of one's 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 (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of the right to vote or to be
voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila
coupled with the short length of time he claims to be a resident of the condominium unit in
Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purpose of
(petitioner) in transferring his physical residence" 27 is not to acquire's new residence or
domicile "but only to qualify as a candidate for Representative of the Second District of
Makati City." 28 The absence of clear and positive proof showing a successful abandonment of
domicile under the conditions stated above, the lack of identification sentimental, actual or

otherwise with the area, and the suspicious circumstances under which the lease agreement
was effected all belie petitioner's claim of residency for the period required by the
Constitution, in the Second District of Makati. As the COMELEC en banc emphatically
pointed out:
[T]he lease agreement was executed mainly to support the one year
residence requirement as a qualification for a candidate of Representative,
by establishing a commencement date of his residence. If a perfectly valid
lease agreement cannot, by itself establish; a domicile of choice, this
particular lease agreement cannot do better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare
assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not
easily lost. To successfully effect a change of domicile, petitioner must prove an actual
removal or an actual change of domicile; a bona fide intention of abandoning the former place
of residence and establishing a new one and definite acts which correspond with the purpose. 30
These requirements are hardly met by the evidence adduced in support of petitioner's claims of
a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and
positive proof, the domicile of origin be deemed to continue requirements are hardly met by
the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to
the Second District of Makati. In the absence of clear and positive proof, the domicile of origin
should be deemed to continue.
Finally, petitioner's 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 carpetbaggers cannot be allowed 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. It will be
noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from
running in the Senate because of the constitutional two-term limit, and had to shop around for
a place where he could run for public office. Nothing wrong with that, but he must first prove
with reasonable certainty that he has effected a change of residence for election law purposes
for the period required by law. This he has not effectively done.

To contend that Syjuco should be proclaimed because he was the "first" among the qualified
candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic
electoral process and the sociological and psychological underpinnings behind voters'
preferences. The result suggested by private respondent would lead not only to our reversing
the doctrines firmly entrenched in the two cases of Labo vs. Comelec 31 but also to a massive
disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they
believed could be validly voted for during the elections. Had petitioner been disqualified
before the elections, the choice, moreover, would have been different. The votes for Aquino
given the acrimony which attended the campaign, would not have automatically gone to
second placer Syjuco. The nature of the playing field would have substantially changed. To
simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He
could not be considered the first among qualified candidates because in a field which excludes
the disqualified candidate, the conditions would have substantially changed. We are not
prepared to extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our country has swung from one end to the
other. In the early case of Topacio v. Paredes. 32 we declared as valid, votes cast in favor of a
disqualified, ineligilble or dead candidate provided the people who voted for such candidate
believed in good faith that at the time of the elections said candidate was either qualified,
eligible or alive. The votes cast in favor of a disqualified, ineligible or dead candidate who
obtained the next higher number of votes cannot be proclaimed as winner. According to this
Court in the said case, "there is not, strictly speaking, a contest, that wreath of victory cannot
be transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving the plurality of the legally cast ballots."
Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in
view of his unlawful change of party affiliation (which was then a ground for disqualification)
cannot be considered in the canvassing of election returns and the votes fall into the category
of invalid and nonexistent votes because a disqualified candidate is no candidate at all and is
not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the
only candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who
lost in an election cannot be proclaimed the winner in the event the candidate who ran for the
portion is ineligible. We held in Geronimo:

III
The next issue here is whether or not the COMELEC erred in issuing it Order instructing the
Board of Canvassers of Makati City to proclaim as winner the candidate receiving the next
higher number of votes. The answer must be in the negative.

[I]t would be extremely repugnant to the basic concept of the

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

Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is fundamental idea in all republican forms of government
that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes
cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo
v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category
of invalid or non-existent votes because a disqualified candidate is no candidate at all in the
eyes of the law," reverting to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito v.
Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v.
Ramos to the effect that the ineligibility of a candidate receiving the next higher number of
votes to be declared elected, and that a minority or defeated candidate cannot be declared
elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v.
Ramos that:
The fact that a candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was
elected does not necessarily entitle the candidate who obtained the second
highest number of votes to be declared the winner of the elective office.
The votes cast for a dead, disqualified, or non-eligible person may be valid
to vote the winner into office or maintain him there. However, in the
absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in sincere belief that
candidate was alive, qualified, or eligible; they should not be treated as
stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest number of votes for
the office of city mayor, the fact remains that he was not the choice of the
sovereign will. Petitioner Labo was overwhelmingly voted by the
electorate for the office of mayor in the belief that he was then qualified to
serve the people of Baguio City and his subsequent disqualification does
not make respondent Ortega the mayor-elect. This is the import of the
recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein we
held that:

While it is true that SPC No. 88-546 was originally a

petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed the fact remains that
the local elections of Feb. 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a
bona fide candidate. The voters of the province voted
for her in the sincere belief that she was a qualified
candidate for the position of governor. Her votes was
counted and she obtained the highest number of votes.
The net effect is that petitioner lost in the election. He
was repudiated by the electorate. . . What matters is
that in the event a candidate for an elected position
who is voted for and who obtains the highest number
of votes is disqualified for not possessing the
eligibility, requirements at the time of the election as
provided by law, the candidate who obtains the second
highest number of votes for the same position cannot
assume the vacated position. (Emphasis supplied).
Our ruling in Abella applies squarely to the case at bar and we see no
compelling reason to depart therefrom. Like Abella, petitioner Ortega lost
in the election. He was repudiated by the electorate. He was obviously not
the choice of the people of Baguio City.
Thus, while respondent Ortega (G.R. No. 105111) originally filed a
disqualification case with the Comelec (docketed as SPA-92-029) seeking
to deny due course to petitioner's (Labo's) candidacy, the same did not
deter the people of Baguio City from voting for petitioner Labo, who, by
then, was allowed by the respondent Comelec to be voted upon, the
resolution for his disqualification having yet to attain the degree of finality
(Sec. 78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec. (supra), We held:
Finally, there is the question of whether or not the
private respondent, who filed the quo warranto
petition, can replace the petitioner as mayor. He
cannot. The simple reason is that as he obtained only
the second highest number of votes in the election, he
was obviously not the choice of the people of Baguio
City.

The latest ruling of the Court in this issue is Santos v.

Commission on Election, (137 SCRA 740) decided in
1985. In that case, the candidate who placed second
was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as
stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court
then (Cuevas J., ponente, with Makasiar, Concepcion,
Jr., Escolin, Relova, De la Fuente, Alampay, and
Aquino, JJ., concurring) with three dissenting
(Teehankee, acting C.J., Abad Santos and MelencioHerrera) and another two reserving their votes (Plana
and Gutierrez, Jr.). One was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be
reversed in favor of the earlier case of Geronimo v. Santos (136 SCRA
435), which represents the more logical and democratic rule. That case,
which reiterated the doctrine first announced in 1912 in Topacio vs.
Paredes (23 Phil. 238) was supported by ten members of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate receiving majority
votes does not entitle the eligible candidate receiving the next highest
number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel.
Dunning v. Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that since a candidate has been
disqualified, the votes intended for the disqualified candidate should, in
effect, be considered null and void. This would amount to disenfranchising
the electorate in whom, sovereignty resides. At the risk of being
repetitious, the people of Baguio City opted to elect petitioner Labo bona
fide without any intention to missapply their franchise, and in the honest
belief that Labo was then qualified to be the person to whom they would
entrust the exercise of the powers of the government. Unfortunately,
petitioner Labo turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot
be installed, under no circumstances can a minority or defeated candidate
be deemed elected to the office. Surely, the 12,602 votes cast for petitioner

Ortega is not a larger number than the 27,471 votes cast for petitioner
Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109;
G.R. No. 105111).
This, it bears repeating, expresses the more logical and democratic view. We cannot, in another
shift of the pendulum, subscribe to the contention that the runner-up in an election in which
the winner has been disqualified is actually the winner among the remaining qualified
candidates because this clearly represents a minority view supported only by a scattered
number of obscure American state and English court decisions. 40 These decisions neglect the
possibility that the runner-up, though obviously qualified, could receive votes so measly and
insignificant in number that the votes they receive would be tantamount to rejection.
Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to
proclaim the totally repudiated candidate as the voters' "choice." Moreover, even in instances
where the votes received by the second placer may not be considered numerically
insignificant, voters preferences are nonetheless so volatile and unpredictable that the result
among qualified candidates, should the equation change because of the disqualification of an
ineligible candidate, would not be self-evident. Absence of the apparent though ineligible
winner among the choices could lead to a shifting of votes to candidates other than the second
placer. By any mathematical formulation, the runner-up in an election cannot be construed to
have obtained a majority or plurality of votes cast where an "ineligible" candidate has
garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein
petitioner ineligible for the elective position of Representative of Makati City's Second
District on the basis of respondent commission's finding that petitioner lacks the one year
residence in the district mandated by the 1987 Constitution. A democratic government is
necessarily a government of laws. In a republican government those laws are themselves
ordained by the people. Through their representatives, they dictate the qualifications necessary
for service in government positions. And as petitioner clearly lacks one of the essential
qualifications for running for membership in the House of Representatives, not even the will
of a majority or plurality of the voters of the Second District of Makati City would substitute
for a requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order
restraining respondent COMELEC from proclaiming the candidate garnering the next highest
number of votes in the congressional elections for the Second District of Makati City is made
PERMANENT.
SO ORDERED.

G.R. No. L-2821

March 4, 1949

JOSE AVELINO, petitioner,

vs.
MARIANO J. CUENCO, respondent.
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six justices against four
resolved to deny the petition.
Without prejudice to the promulgation of a more extended opinion, this is now written briefly
to explain the principal grounds for the denial.
The Court believes the following essential facts have been established:
In the session of the Senate of February 18, 1949, Senator Lorenzo M. Taadare quested that
his right to speak on the next session day, February 21, 1949, to formulate charges against the
then Senate President Jose Avelino be reserved. His request was approved.
On February 21, 1949, hours before the opening of the session Senator Taada and Senator
Taada and Senator Prospero Sanidad filed with the Secretary of the Senate a resolution
enumerating charges against the then Senate President and ordering the investigation thereof.
Although a sufficient number of senators to constitute a quorum were at the Senate session
hall at the appointed time (10:00 A.M.), and the petitioner was already in his office, said
petitioner delayed his appearance at the session hall until about 11:35 A.M. When he finally
ascended the rostrum, he did not immediately open the session, but instead requested from the
Secretary a copy of the resolution submitted by Senators Taada and Sanidad and in the
presence of the public he read slowly and carefully said resolution, after which he called and
conferred with his colleagues Senator Francisco and Tirona.
Shortly before 12:00 noon, due to the session be opened, the petitioner finally called the
meeting to order. Except Senator Sotto who was confined in a hospital and Senator Confesor
who is in the United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that the roll call be dispensed
with, but Senator Tirona opposed said motion, obviously in pursuance of a premeditated plan
of petitioner and his partisans to make use of dilatory tactics to prevent Senator Taada from
delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense with the reading of the
minutes, but this motion was likewise opposed by Senator Tirona and David, evidently, again,
in pursuance of the above-mentioned conspiracy.

Before and after the roll call and before and after the reading of the minutes, Senator Taada
repeatedly stood up to claim his right to deliver his one-hour privilege speech but the
petitioner, then presiding, continuosly ignored him; and when after the reading of the minutes,
Senator Taada instead on being recognized by the Chair, the petitioner announced that he
would order the arrest of any senator who would speak without being previously recognized
by him, but all the while, tolerating the actions of his follower, Senator Tirona, who was
continuously shouting at Senator Sanidad "Out of order!" everytime the latter would ask for
recognition of Senator Taada.
At this juncture, some disorderly conduct broke out in the Senate gallery, as if by prearrangement. At about this same time Senator Pablo Angeles David, one of the petitioner's
followers, was recognized by petitioner, and he moved for adjournment of session, evidently,
again, in pursuance of the above-mentioned conspiracy to muzzle Senator Taada.
Senator Sanidad registered his opposition to the adjournment of the session and this opposition
was seconded by herein respondent who moved that the motion of adjournment be submitted
to a vote. Another commotion ensued.
Senator David reiterated his motion for adjournment and herein respondent also reiterated his
opposition to the adjournment and again moved that the motion of Senator David be submitted
to a vote.
Suddenly, the petitioner banged the gavel and abandoning the Chair hurriedly walked out of
the session hall followed by Senator David, Tirona, Francisco, Torres, Magalona and Clarin,
while the rest of the senators remained. Whereupon Senator Melencio Arranz, Senate
President Pro-tempore, urged by those senators present took the Chair and proceeded with the
session.
Senator Cabili stood up, and asked that it be made of record it was so made that the
deliberate abandonment of the Chair by the petitioner, made it incumbent upon Senate
President Pro-tempore Arranz and the remaining members of the Senate to continue the
session in order not to paralyze the functions of the Senate.
Senate President Pro-tempore Arranz then suggested that respondent be designated to preside
over the session which suggestion was carried unanimously. the respondent thereupon took the
Chair.
Upon motion of Senator Arranz, which was approved Gregorio Abad was appointedActing
Secretary, because the Assistance Secretary, who was then acting as Secretary, had followed
the petitioner when the latter abandoned the session.

Senator Taada, after being recognized by the Chair, was then finally able to deliver his
privilege speech. Thereafter Senator Sanidad read aloud the complete text of said Resolution
(No. 68), and submitted his motion for approval thereof and the same was unanimously
approved.
With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent had
yielded it to him, Senator Sanidad introduced Resolution No. 67, entitled "Resolution
declaring vacant the position of the President of the Senate and designated the Honorable
Mariano Jesus Cuenco Acting President of the Senate." Put to a vote, the said resolution was
unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the respondent as acting president of
the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked the Court to declare him the
rightful President of the Philippines senate and oust respondent.
The Court has examined all principal angles of the controversy and believes that these are the
crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution Nos. 68 and 67 validly approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in view of the separation of powers, the
political nature of the controversy (Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77
Phil., 192; Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to the Senate of
the power to elect its own president, which power should not be interfered with, nor taken
over, by the judiciary. We refused to take cognizance of the Vera case even if the rights of the
electors of the suspended senators were alleged affected without any immediate remedy. A
fortiori we should abstain in this case because the selection of the presiding officer affect only
the Senators themselves who are at liberty at any time to choose their officers, change or
reinstate them. Anyway, if, as the petition must imply to be acceptable, the majority of the
Senators want petitioner to preside, his remedy lies in the Senate Session Hall not in the
Supreme Court.
The Court will not sally into the legitimate domain of the Senate on the plea that our refusal to
intercede might lead into a crisis, even a resolution. No state of things has been proved that

might change the temper of the Filipino people as a peaceful and law-abiding citizens. And we
should not allow ourselves to be stampeded into a rash action inconsistent with the calm that
should characterized judicial deliberations.
The precedent of Werts vs. Roger does not apply, because among other reasons, the situation is
not where two sets of senators have constituted themselves into two senates actually
functioning as such, (as in said Werts case), there being no question that there is presently one
Philippines Senate only. To their credit be it recorded that petitioner and his partisans have not
erected themselves into another Senate. The petitioner's claim is merely that respondent has
not been duly elected in his place in the same one Philippines Senate.
It is furthermore believed that the recognition accorded by the Chief Executive to the
respondent makes it advisable, more than ever, to adopt the hands-off policy wisely enunciated
by this Court in matters of similar nature.
The second question depends upon these sub-questions. (1) Was the session of the so-called
rump Senate a continuation of the session validly assembled with twenty two Senators in the
morning of February 21, 1949?; (2) Was there a quorum in that session? Mr. Justice
Montemayor and Mr. Justice Reyes deem it useless, for the present to pass on these questions
once it is held, as they do, that the Court has no jurisdiction over the case. What follows is the
opinion of the other four on those four on those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the view that the session under
Senator Arranz was a continuation of the morning session and that a minority of ten senators
may not, by leaving the Hall, prevent the other twelve senators from passing a resolution that
met with their unanimous endorsement. The answer might be different had the resolution been
approved only by ten or less.
If the rump session was not a continuation of the morning session, was it validly constituted?
In other words, was there the majority required by the Constitution for the transaction of the
business of the Senate? Justice Paras, Feria, Pablo and Bengzon say there was, firstly because
the minute say so, secondly, because at the beginning of such session there were at least
fourteen senators including Senators Pendatun and Lopez, and thirdly because in view of the
absence from the country of Senator Tomas Confesor twelve senators constitute a majority of
the Senate of twelve three senators. When the Constitution declares that a majority of "each
House" shall constitute a quorum, "the House: does not mean "all" the members. Even a
majority of all the members constitute "the House". (Missouri Pac. vs. Kansas, 63 Law ed. [U.
S.], p. 239). There is a difference between a majority of "the House", the latter requiring less
number than the first. Therefore an absolute majority (12) of all the members of the Senate
less one (23), constitutes constitutional majority of the Senate for the purpose of a quorum.
Mr. Justice Pablo believes furthermore than even if the twelve did not constitute a quorum,
they could have ordered the arrest of one, at least, of the absent members; if one had been so

arrested, there would be no doubt Quorum then, and Senator Cuenco would have been elected
just the same inasmuch as there would be eleven for Cuenco, one against and one abstained.
In fine, all the four justice agree that the Court being confronted with the practical situation
that of the twenty three senators who may participate in the Senate deliberations in the days
immediately after this decision, twelve senators will support Senator Cuenco and, at most,
eleven will side with Senator Avelino, it would be most injudicious to declare the latter as the
rightful President of the Senate, that office being essentially one that depends exclusively upon
the will of the majority of the senators, the rule of the Senate about tenure of the President of
that body being amenable at any time by that majority. And at any session hereafter held with
thirteen or more senators, in order to avoid all controversy arising from the divergence of
opinion here about quorum and for the benefit of all concerned,the said twelve senators who
approved the resolutions herein involved could ratify all their acts and thereby place them
beyond the shadow of a doubt.
As already stated, the six justices hereinabove mentioned voted to dismiss the petition.
Without costs.
G.R. No. 134577 November 18, 1998
SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,
vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.

On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an
original petition for quo warranto under Rule 66, Section 5, Rules of Court, seeking the ouster
of Senator Teofisto T. Guingona, Jr. as minority leader of the Senate and the declaration of
Senator Tatad as the rightful minority leader.
On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and the
solicitor general "to file COMMENT thereon within a non-extendible period of fifteen (15)
days from notice." On August 25, 1998, both respondents and the solicitor general submitted
their respective Comments. In compliance with a Resolution of the Court dated September 1,
1998, petitioners filed their Consolidated Reply on September 23, 1998. Noting said pleading,
this Court gave due course to the petition and deemed the controversy submitted for decision,
without need of memoranda, on September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent jurisdiction 1 to
hear and decide petitions for quo warranto (as well as certiorari, prohibition and mandamus),
and a basic deference to the hierarchy of courts impels a filing of such petitions in the lower
tribunals. 2 However, for special and important reasons or for exceptional and compelling
circumstances, as in the present case, this Court has allowed exceptions to this doctrine. 3 In
fact, original petitions for certiorari, prohibition, mandamus and quo warranto assailing acts
of legislative officers like the Senate President 4 and the Speaker of the House 5 have been
recognized as exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer, convened
on July 27, 1998 for the first regular session of the eleventh Congress. At the time, in terms of
party affiliation, the composition of the Senate was as follows: 6

PANGANIBAN, J.:
The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere. Constitutional respect and a becoming regard for she
sovereign acts, of a coequal branch prevents this Court from prying into the internal workings
of the Senate. Where no provision of the Constitution or the laws or even the Rules of the
Senate is clearly shown to have been violated, disregarded or overlooked, grave abuse of
discretion cannot be imputed to Senate officials for acts done within their competence and
authority. This Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
The Case

10 members Laban ng Masang Pilipino (LAMP)

7 members Lakas-National Union of Christian Democrats-United
Muslim Democrats of the Philippines (Lakas-NUCDUMDP)
1 member Liberal Party (LP)
1 member Aksyon Demokrasya
1 member People's Reform Party (PRP)

1 member Gabay Bayan

From the parties' pleadings, the Court formulated the following issues for resolution:

2 members Independent

1. Does the Court have jurisdiction over the petition?

2. Was there an actual violation of the Constitution?

23 total number of senators 7 (The last six members are all classified by
petitioners as "independent".)

3. Was Respondent Guingona usurping, unlawfully holding and exercising

the position of Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in
recognizing Respondent Guingona as the minority leader?

On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to the
position of Senate President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was also
nominated to the same position by Sen. Miriam Defenser Santiago. By a vote of 20 to 2, 8
Senator Fernan was declared the duly elected President of the Senate.
The following were likewise elected: Senator Ople as president pro tempore, and Sen.
Franklin M. Drilon as majority leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago, allegedly the
only other member of the minority, he was assuming the position of minority leader. He
explained that those who had voted for Senator Fernan comprised the "majority," while only
those who had voted for him, the losing nominee, belonged to the "minority."
During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier
manifested that the senators belonging to the Lakas-NUCD-UMDP Party numbering seven
(7) and, thus, also a minority had chosen Senator Guingona as the minority leader. No
consensus on the matter was arrived at. The following session day, the debate on the question
continued, with Senators Santiago and Tatad delivering privilege speeches. On the third
session day, the Senate met in caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter
signed by the seven Lakas-NUCD-UMDP senators, 9 stating that they had elected Senator
Guingona as the minority leader. By virtue thereof, the Senate President formally recognized
Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject petition for
quo warranto, alleging in the main that Senator Guingona had been usurping, unlawfully
holding and exercising the position of Senate minority leader, a position that, according to
them, rightfully belonged to Senator Tatad.
Issues

The Court's Ruling

After a close perusal of the pleadings 10 and a careful deliberation on the arguments, pro and
con, the Court finds that no constitutional or legal infirmity or grave abuse of discretion
attended the recognition of and the assumption into office by Respondent Guingona as the
Senate minority leader.
First Issue:
The Court's Jurisdiction
Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction
to settle the issue of who is the lawful Senate minority leader. They submit that the definitions
of "majority" and "minority" involve an interpretation of the Constitution, specifically Section
16 (1), Article VI thereof, stating that "[t]he Senate shall elect its President and the House of
Representatives its Speaker, by a majority vote of all its respective Members."
Respondents and the solicitor general, in their separate Comments, contend in common that
the issue of who is the lawful Senate minority leader is an internal matter pertaining
exclusively to the domain of the legislature, over which the Court cannot exercise jurisdiction
without transgressing the principle of separation of powers. Allegedly, no constitutional issue
is involved, as the fundamental law does not provide for the office of a minority leader in the
Senate. The legislature alone has the full discretion to provide for such office and, in that
event, to determine the procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no question
involving an interpretation or application of the Constitution, the laws or even the Rules of the
Senate; neither are there "peculiar circumstances" impelling the Court to assume jurisdiction
over the petition. The solicitor general adds that there is not even any legislative practice to

support the petitioners' theory that a senator who votes for the winning Senate President is
precluded from becoming the minority leader.

. . . The constitutional question of quorum should not be left unanswered.

To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the
various important cases involving this very important and basic question, which it has ruled
upon in the past.

In Taada v. Cueno, 18 this Court endeavored to define political question. And we said that "it
refers to 'those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government.' It is concerned with issues dependent upon
the wisdom, not [the] legality, of a particular measure." 19

The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power of judicial
review; that is, questions involving an interpretation or application of a provision of the
Constitution or the law, including the rules of either house of Congress. Within this scope falls
the jurisdiction of the Court over questions on the validity of legislative or executive acts that
are political in nature, whenever the tribunal "finds constitutionally imposed limits on powers
or functions conferred upon political bodies." 12
In the aforementioned case, the Court initially declined to resolve the question of who was the
rightful Senate President, since it was deemed a political controversy falling exclusively
within the domain of the Senate. Upon a motion for reconsideration, however, the Court
ultimately assumed jurisdiction (1) "in the light of subsequent events which justify its
intervention;" and (2) because the resolution of the issue hinged on the interpretation of the
constitutional provision on the presence of a quorum to hold a session 13 and therein elect a
Senate President.
Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this
Court has jurisdiction over cases like the present . . . so as to establish in this country the
judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or
agency of the government transcends the Constitution, not only in justiceable but political
questions as well." 14

17

The Court ruled that the validity of the selection of members of the Senate Electoral Tribunal
by the senators was not a political question. The choice of these members did not depend on
the Senate's "full discretionary authority," but was subject to mandatory constitutional
limitations. 20 Thus, the Court held that not only was it clearly within its jurisdiction to pass
upon the validity of the selection proceedings, but it was also its duty to consider and
determine the issue.
In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion wrote that
the Court "had authority to and should inquire into the existence of the factual bases required
by the Constitution for the suspension of the privilege of the writ [of habeas corpus]." This
ruling was made in spite of the previous pronouncements in Barcelon v. Baker 22 and
Montenegro v. Castaeda 23 that "the authority to decide whether the exigency has arisen
requiring suspension (of the privilege . . .) belongs to the President and his 'decision is final
and conclusive' upon the courts and upon all other persons." But the Chief Justice cautioned:
"the function of the Court is merely to check not to supplant the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not
to exercise the power vested in him or to determine the wisdom of his act."
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary: 24

Justice Perfecto, also concurring, said in part:

Indeed there is no denying that the situation, as obtaining in the upper
chamber of Congress, is highly explosive. It had echoed in the House of
Representatives. It has already involved the President of the Philippines.
The situation has created a veritable national crisis, and it is apparent that
solution cannot be expected from any quarter other than this Supreme
Court, upon which the hopes of the people for an effective settlement are
pinned. 15
. . . This case raises vital constitutional questions which no one can settle
or decide if this Court should refuse to decide them. 16

The reason why the issue under consideration and other issues of similar
character are justiciable, not political, is plain and simple. One of the
principal bases of the non-justiciability of so-called political questions is
the principle of separation of powers characteristic of the presidential
system of government the functions of which are classified or divided,
by reason of their nature, into three (3) categories, namely, 1) those
involving the making of laws, which are allocated to the legislative
department; 2) those concerning mainly with the enforcement of such laws
and of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are
apportioned to courts of justice. Within its own sphere but only within
such sphere each department is supreme and independent of the others,

and each is devoid of authority not only to encroach upon the powers or
field of action assigned to any of the other departments, but also to inquire
into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided
that such acts, measures or decisions are within the area allocated thereto
by the Constitution.
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue of whether or not the prescribed qualifications or
conditions have been met, or the limitations respected is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations particularly those prescribed by the Constitution would
be set at naught. What is more, the judicial inquiry into such issue and the
settlement thereof are the main functions of the courts of justice under the
presidential form of government adopted in our 1935 Constitution, and the
system of checks and balances, one of its basic predicates. As a
consequence, we have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the
highest Court of the land, to support and defend the Constitution to
settle it. This explains why, in Miller v. Johnson [92 Ky. 589, 18 SW 522,
523], it was held that courts have a "duty, rather than a power," to
determine whether another branch of the government has "kept within
constitutional limits."

This express definition has resulted in clearer and more resolute pronouncements of the Court.
Daza v. Singson, 26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v. Gonzales 28 similarly resolved
issues assailing the acts of the leaders of both houses of Congress in apportioning among
political parties the seats to which each chamber was entitled in the Commission on
Appointments. The Court held that the issue was justiciable, "even if the question were
political in nature," since it involved "the legality, not the wisdom, of the manner of filling the
Commission on Appointments as prescribed by [Section 18, Article VI of] the Constitution."
The same question of jurisdiction was raised in Taada v. Angara, 29 wherein the petitioners
sought to nullify the Senate's concurrence in the ratification of the World Trade Organization
(WTO) Agreement. The Court ruled: "Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute." The Court en banc unanimously stressed that in taking
jurisdiction over petitions questioning, an act of the political departments of government, it
will not review the wisdom, merits or propriety of such action, and will strike it down only on
either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of discretion.
Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the Court
refused to reverse a decision of the HRET, in the absence of a showing that said tribunal had
committed grave abuse of discretion amounting to lack of jurisdiction. The Court ruled that
full authority had been conferred upon the electoral tribunals of the House of Representatives
and of the Senate as sole judges of all contests relating to the election, the returns, and the
qualifications of their respective members. Such jurisdiction is original and exclusive. 31 The
Court may inquire into a decision or resolution of said tribunals only if such "decision or
resolution was rendered without or in excess of jurisdiction, or with grave abuse of discretion"
32

Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of
judicial power. The present Constitution now fortifies the authority of the courts to determine
in an appropriate action the validity of the acts of the political departments. It speaks of
judicial prerogative in terms of duty, viz.:
Judicial 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. 25

Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the enrolled bill
doctrine and to look beyond the certification of the Speaker of the House of Representatives
that the bill, which was later enacted as Republic Act 8240, was properly approved by the
legislative body. Petitioners claimed that certain procedural rules of the House had been
breached in the passage of the bill. They averred further that a violation of the constitutionally
mandated House rules was a violation of the Constitution itself.
The Court, however, dismissed the petition, because the matter complained of concerned the
internal procedures of the House, with which the Court had no concern. It enucleated: 34
It would-be an unwarranted invasion of the prerogative of a coequal
department for this Court either to set aside a legislative action as void
because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a
rematch in the judicial forum when petitioners can find their remedy in
that department itself. The Court has not been invested with a roving

commission to inquire into complaints, real or imagined, of legislative

skullduggery. It would be acting in excess of its power and would itself be
guilty of grave abuse of discretion were it to do so. . . . In the absence of
anything to the contrary, the Court must assume that Congress or any
House thereof acted in the good faith belief that its conduct was permitted
by its rules, and deference rather than disrespect is due the judgment of
that body.
In the instant controversy, the petitioners one of whom is Senator Santiago, a well-known
constitutionalist try to hew closely to these jurisprudential parameters. They claim that
Section 16 (1), Article VI of the constitution, has not been observed in the selection of the
Senate minority leader. They also invoke the Court's "expanded" judicial power "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no jurisdiction
over the petition. Well-settled is the doctrine, however, that jurisdiction over the subject matter
of a case is determined by the allegations of the complaint or petition, regardless of whether
the plaintiff or petitioner is entitled to the relief asserted. 35 In light of the aforesaid allegations
of petitioners, it is clear that this Court has jurisdiction over the petition. It is well within the
power and jurisdiction of the Court to inquire whether indeed the Senate or its officials
committed a violation of the Constitution or gravely abused their discretion in the exercise of
their functions and prerogatives.

Petitioners answer the above question in the affirmative. They contend that the constitutional
provision requiring the election of the Senate President "by majority vote of all members"
carries with it a judicial duty to determine the concepts of "majority" and "minority," as well
as who may elect a minority leader. They argue that "majority" in the aforequoted
constitutional provision refers to that group of senators who (1) voted for the winning Senate
President and (2) accepted committee chairmanships. Accordingly, those who voted for the
losing nominee and accepted no such chairmanships comprise the minority, to whom the right
to determine the minority leader belongs. As a result, petitioners assert, Respondent Guingona
cannot be the legitimate minority leader, since he voted for Respondent Fernan as Senate
President. Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the minority
leader, because they did not belong to the minority, having voted for Fernan and accepted
committee chairmanships.
We believe, however, that the interpretation proposed by petitioners finds no clear support
from the Constitution, the laws, the Rules of the Senate or even from practices of the Upper
House.
The term "majority" has been judicially defined a number of times. When referring to a certain
number out of a total or aggregate, it simply "means the number greater than half or more than
half of any total." 36 The plain and unambiguous words of the subject constitutional clause
simply mean that the Senate President must obtain the votes of more than one half of all the
senators. Not by any construal does it thereby delineate who comprise the "majority," much
less the "minority," in the said body. And there is no showing that the framers of our
Constitution had in mind other than the usual meanings of these terms.

Second Issue:
Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to the next crucial question: In
recognizing Respondent Guingona as the Senate minority leader, did the Senate or its officials,
particularly Senate President Fernan, violate the Constitution or the laws?

In effect, while the Constitution mandates that the President of the Senate must be elected by a
number constituting more than one half of all the members thereof, it does not provide that the
members who will not vote for him shall ipso facto constitute the "minority," who could
thereby elect the minority leader. Verily, no law or regulation states that the defeated candidate
shall automatically become the minority leader.
The Comment 37 of Respondent Guingona furnishes some relevant precedents, which were not
contested in petitioners' Reply. During the eighth Congress, which was the first to convene
after the ratification of the 1987 Constitution, the nomination of Sen. Jovito R Salonga as
Senate President was seconded by a member of the minority, then Sen. Joseph E. Estrada. 38
During the ninth regular session, when Sen. Edgardo J. Angara assumed the Senate presidency
in 1993, a consensus was reached to assign committee chairmanships to all senators, including
those belonging to the minority. 39 This practice continued during the tenth Congress, where
even the minority leader was allowed to chair a committee. 40 History would also show that the
"majority" in either house of Congress has referred to the political party to which the most
number of lawmakers belonged, while the "minority" normally referred to a party with a lesser
number of members.

Let us go back to the definitions of the terms "majority" and "minority." Majority may also
refer to "the group, party, or faction with the larger number of votes," 41 not necessarily more
than one half. This is sometimes referred to as plurality. In contrast, minority is "a group,
party, or faction with a smaller number of votes or adherents than the majority." 42 Between
two unequal parts or numbers comprising a whole or totality, the greater number would
obviously be the majority while the lesser would be the minority. But where there are more
than two unequal groupings, it is not as easy to say which is the minority entitled to select the
leader representing all the minorities. In a government with a multi-party system such as in the
Philippines (as pointed out by petitioners themselves), there could be several minority parties,
one of which has to be indentified by the Comelec as the "dominant minority party" for
purposes of the general elections. In the prevailing composition of the present Senate,
members either belong to different political parties or are independent. No constitutional or
statutory provision prescribe which of the many minority groups or the independents or a
combination thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a House
Speaker, it is, however, dead silent on the manner of selecting the other officers in both
chambers of Congress. All that the Charter says is that "[e]ach House shall choose such other
officers as it may deem necessary." 43 To our mind, the method of choosing who will be such
other officers is merely a derivative of the exercise of the prerogative conferred by the
aforequoted constitutional provision. Therefore, such method must be prescribed by the Senate
itself, not by this Court.
In this regard, the Constitution vests in each house of Congress the power "to determine the
rules of its proceedings." 44 Pursuant thereto, the Senate formulated and adopted a set of rules
to govern its internal affairs. 45 Pertinent to the instant case are Rules I and II thereof, which
provide:
Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner hereinafter provided, a
President, a President Pro Tempore, a Secretary, and a Sergeant-at-Arms.
These officers shall take their oath of office before entering into the
discharge of their duties.
Rule II
ELECTION OF OFFICER

Sec. 2. The officers of the Senate shall be elected by the majority vote of
all its Members. Should there be more than one candidate for the same
office, a nominal vote shall be taken; otherwise, the elections shall be by
viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and minority
leaders. Neither is there an open clause providing specifically for such offices and prescribing
the manner of creating them or of choosing the holders thereof, At any rate, such offices, by
tradition and long practice, are actually extant. But, in the absence of constitutional or
statutory guidelines or specific rules, this Court is devoid of any basis upon which to
determine the legality of the acts of the Senate relative thereto. On grounds of respect for the
basic concept of separation of powers, courts may not intervene in the internal affairs of the
legislature; it is not within the province of courts to direct Congress how to do its work. 46
Paraphrasing the words of Justice Florentino P. Feliciano, this Court is of the opinion that
where no specific, operable norms and standards are shown to exist, then the legislature must
be given a real and effective opportunity to fashion and promulgate as well as to implement
them, before the courts may intervene. 47
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of
permanence and obligatoriness during their effectivity. In fact, they "are subject to revocation,
modification or waiver at the pleasure of the body adopting them." 48 Being merely matters of
procedure, their observance are of no concern to the courts, for said rules may be waived or
disregarded by the legislative body 49 at will, upon the concurrence of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for such
officers as it may deem. And it is certainly within its own jurisdiction and discretion to
prescribe the parameters for the exercise of this prerogative. This Court has no authority to
interfere and unilaterally intrude into that exclusive realm, without running afoul of
constitutional principles that it is bound to protect and uphold the very duty that justifies
the Court's being. Constitutional respect and a becoming regard for the sovereign acts of a
coequal branch prevents this Court from prying into the internal workings of the Senate. To
repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to judicial
legislation, a clear breach of the constitutional doctrine of separation of powers. If for this
argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the rules and even the practice of the
Senate was violated, and while the judiciary is without power to decide matters over which
full discretionary authority has been lodged in the legislative department, this Court may still
inquire whether an act of Congress or its officials has been made with grave abuse of
discretion. 50 This is the plain implication of Section 1, Article VIII of the Constitution, which

expressly confers upon the judiciary the power and the duty not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but likewise "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 order for a quo warranto proceeding to be successful, the person suing must show that he or
she has a clear right to the contested office or to use or exercise the functions of the office
allegedly usurped or unlawfully held by the respondent. 58 In this case, petitioners present no
sufficient proof of a clear and indubitable franchise to the office of the Senate minority leader.

Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member of
the 1986 Constitutional Commission, said in part: 51

As discussed earlier, the specific norms or standards that may be used in determining who may
lawfully occupy the disputed position has not been laid down by the Constitution, the statutes,
or the Senate itself in which the power has been vested. Absent any clear-cut guideline, in no
way can it be said that illegality or irregularity tainted Respondent Guingona's assumption and
exercise of the powers of the office of Senate minority leader. Furthermore, no grave abuse of
discretion has been shown to characterize any of his specific acts as minority leader.

. . . the powers of government are generally considered divided into three

branches: the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others. Because of
that supremacy[, the] power to determine whether a given law is valid or
not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the
agencies and offices of the government as well as those of its officers. In
other words, the judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment
on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.
With this paradigm, we now examine the two other issues challenging the actions, first, of
Respondent Guingona and, second, of Respondent Fernan.
Third Issue:
Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power 52 by
one without color of title or who is not entitled by law thereto. 53 A quo warranto proceeding is
the proper legal remedy to determine the right or title to the contested public office and to oust
the holder from its enjoyment. 54 The action may be brought by the solicitor general or a public
prosecutor 55 or any person claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another. 56 The action shall be brought against the person who
allegedly usurped, intruded into or is unlawfully holding of exercising such office. 57

Fourth Issue:
Fernan's Recognition of Guingona
The all-embracing and plenary power and duty of the Court "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" is restricted only by the definition and
confines of the term "grave abuse of discretion."
By grave abuse of discretion is meant such capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an evasion of positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all
in contemplation of law as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility. 59
By the above standard, we hold that Respondent Fernan did not gravely abuse his discretion as
Senate President in recognizing Respondent Guingona as the minority leader. Let us recall that
the latter belongs to one of the minority parties in the Senate, the Lakas-NUCD-UMDP. By
unanimous resolution of the members of this party that he be the minority leader, he was
recognized as such by the Senate President. Such formal recognition by Respondent Fernan
came only after at least two Senate sessions and a caucus, wherein both sides were liberally
allowed to articulate their standpoints.
Under these circumstances, we believe that the Senate President cannot be accused of
"capricious or whimsical exercise of judgment" or of "an arbitrary and despotic manner by
reason of passion or hostility." Where no provision of the Constitution, the laws or even the
rules of the Senate has been clearly shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate officials for acts done within their
competence and authority.

WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

On 8 October 2008, Senator Madrigal introduced P.S. Resolution 706, 3 the full text of which
reads:

SO ORDERED.
WHEREAS the Senate President has repeatedly and publicly "advocated" (sic) the
construction of the C-5 Road/Pres. C.P. Garcia Avenue Extension linking Sucat Road in
Paraaque City to the South Luzon Expressway;
G.R. No. 187714

March 8, 2011

AQUILINO Q. PIMENTEL, JR., MANUEL B. VILLAR, JOKER P. ARROYO,

FRANCIS N. PANGILINAN, PIA S. CAYETANO, and ALAN PETER S. CAYETANO,
Petitioners,
vs.
SENATE COMMITTEE OF THE WHOLE represented by SENATE PRESIDENT
JUAN PONCE ENRILE, Respondents.
The Case
Before the Court is a petition for prohibition 1 with prayer for issuance of a writ of preliminary
injunction and/or temporary restraining order filed by Senators Aquilino Q. Pimentel, Jr.
(Senator Pimentel), Manuel B. Villar (Senator Villar), Joker P. Arroyo, Francis N. Pangilinan,
Pia S. Cayetano, and Alan Peter S. Cayetano (petitioners). Petitioners seek to enjoin the Senate
Committee of the Whole (respondent) from conducting further hearings on the complaint filed
by Senator Maria Ana Consuelo A.S. Madrigal (Senator Madrigal) against Senator Villar
pursuant to Senate Resolution No. 706 (P.S. Resolution 706) on the alleged double insertion of
P200 million for the C-5 Road Extension Project in the 2008 General Appropriations Act.
The Antecedents
On 15 September 2008, Senator Panfilo Lacson (Senator Lacson) delivered a privilege speech
entitled "Kaban ng Bayan, Bantayan!"2 In his privilege speech, Senator Lacson called
attention to the congressional insertion in the 2008 General Appropriations Act, particularly
the P200 million appropriated for the construction of the President Carlos P. Garcia Avenue
Extension from Sucat Luzon Expressway to Sucat Road in Paraaque City including Right-ofWay (ROW), and another P200 million appropriated for the extension of C-5 road including
ROW. Senator Lacson stated that C-5 is what was formerly called President Carlos P. Garcia
Avenue and that the second appropriation covers the same stretch from Sucat Luzon
Expressway to Sucat Road in Paraaque City. Senator Lacson inquired from DBM Secretary
Rolando Andaya, Jr. about the double entry and was informed that it was on account of a
congressional insertion. Senator Lacson further stated that when he followed the narrow trail
leading to the double entry, it led to Senator Villar, then the Senate President.

WHEREAS it was discovered that there was a double insertion of P200 million for the C-5
Road Extension project in the 2008 General Appropriations Act;
WHEREAS Committee on Finance Chair Sen. Juan Ponce Enrile confirmed that the double
insertion for the C-5 Road Extension Project was made by the Senate President;
WHEREAS this double insertion is only the tip of the iceberg;
WHEREAS there is overwhelming evidence to show that the Senate President, from the time
he was member of the House of Representatives, used his influence on the executive to cause
the realignment of the C-5 Road Extension project to ensure that his properties in Barangay
San Dionisio, Paraaque City and Barangays Pulang Lupa and Mayuno Uno, Las Pias would
be financially benefited by the construction of the new road;
WHEREAS there is overwhelming evidence to show that the Senate President, through his
corporations, negotiated the sale of his properties as roads right of way to the government, the
same properties affected by the projects he proposed;
WHEREAS there is overwhelming evidence to show that the Senate President caused the sale
of his landholdings to government as a grossly overpriced cost prejudicial to other lot owners
in the area, the government, and the Filipino people;
WHEREAS there is overwhelming evidence to show that the Senate President, in the
overpriced sale of another property, used his power and influence to extort from the original
landowner the profit made from the overprice by the Villar owned corporations;
WHEREAS these acts of the Senate President are in direct violation of the Constitution, the
Anti-Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards of Public
Officers;
WHEREAS the Senate President has violated the public trust of the people in order to serve
his personal interests thereby sacrificing the peoples welfare;
WHEREAS the illegal and unethical conduct of the Senate President has betrayed the trust of
the people, and by doing so has shamed the Philippine Senate;

WHEREAS it is incumbent upon the members of the Senate now to reclaim the peoples trust
and confidence and show that the illegal conduct of any of its member, even of its leaders,
shall not go unpunished;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, TO DIRECT THE
COMMITTEE ON ETHICS AND PRIVILEGES TO INVESTIGATE THE CONDUCT OF
SENATE PRESIDENT MANUEL B. VILLAR, JR. FOR USING HIS POSITION OF
POWER TO INFLUENCE PUBLIC OFFICIALS IN RELOCATING THE C-5 ROAD
EXTENSION PROJECT TO DELIBERATELY PASS THRU HIS PROPERTIES, AND TO
NEGOTIATE THE OVERPRICED PURCHASE OF ROAD RIGHTS OF WAY THRU
SEVERAL PROPERTIES ALSO OWNED BY HIS CORPORATIONS REDOUNDING IN
HUGE PERSONAL FINANCIAL BENEFITS FOR HIM TO THE DETRIMENT OF THE
FILIPINO PEOPLE, THEREBY RESULTING IN A BLATANT CONFLICT OF INTEREST.
Adopted,
(Sgd.)
M.A. MADRIGAL4
On even date, P.S. Resolution 706 was referred to the Committee on Ethics and Privileges
(Ethics Committee) which at that time was composed of the following members:
Sen. Pia S. Cayetano - Chairperson
Sen. Loren Legarda - Member in lieu of Sen. Madrigal
Sen. Joker Arroyo - Member
Sen. Alan Peter Cayetano- Member

consultation with the members of the Minority, Senator Pimentel informed the body that there
would be no member from the Minority in the Ethics Committee. 6 On 26 January 2009,
Senator Lacson reiterated his appeal to the Minority to nominate their representatives to the
Ethics Committee.7 Senator Pimentel stated that it is the stand of the Minority not to nominate
any of their members to the Ethics Committee, but he promised to convene a caucus to
determine if the Minoritys decision on the matter is final. 8 Thereafter, the Senate adopted the
Rules of the Senate Committee on Ethics and Privileges (Committee Rules) which was
published in the Official Gazette on 23 March 2009. 9
On 20 April 2009, Senator Villar delivered a privilege speech 10 where he stated that he would
answer the accusations against him on the floor and not before the Ethics Committee. On 27
April 2009, Senator Lacson delivered another privilege speech 11 where he stated that the
Ethics Committee was not a kangaroo court. However, due to the accusation that the Ethics
Committee could not act with fairness on Senator Villars case, Senator Lacson moved that the
responsibility of the Ethics Committee be undertaken by the Senate, acting as a Committee of
the Whole. The motion was approved with ten members voting in favor, none against, and five
abstentions.12
Respondent Senate Committee of the Whole conducted its hearings on 4 May 2009, with
eleven Senators present, and on 7 May 2009, with eight Senators present. On both hearings,
petitioners objected to the application of the Rules of the Ethics Committee to the Senate
Committee of the Whole. In particular, petitioners questioned the determination of the
quorum. On 11 May 2009, petitioners proposed 11 amendments to the Rules of the Ethics
Committee that would constitute the Rules of the Senate Committee of the Whole, out of
which three amendments were adopted. On 14 May 2009, Senator Pimentel raised as an issue
the need to publish the proposed amended Rules of the Senate Committee of the Whole. On
even date, respondent proceeded with the Preliminary Inquiry on P.S. Resolution 706. On 18
May 2009, the Chairman submitted a report on the Preliminary Inquiry with a directive to all
Senators to come up with a decision on the preliminary report on 21 May 2009. On 21 May
2009, respondent declared that there was substantial evidence to proceed with the adjudicatory
hearing. The preliminary conference was set on 26 May 2009.

Sen. Miriam Defensor-Santiago- Member

Petitioners came to this Court for relief, raising the following grounds:
Sen. Gregorio Honasan - Member
Sen. Panfilo Lacson - Inhibited and replaced by Sen. Rodolfo Biazon
On 17 November 2008, Senator Juan Ponce Enrile (Senator Enrile) was elected Senate
President. The Ethics Committee was reorganized with the election of Senator Lacson as
Chairperson, and Senators Richard Gordon, Gregorio Honasan, Loren Legarda, and Mar
Roxas as members for the Majority. On 16 December 2008, Senator Lacson inquired whether
the Minority was ready to name their representatives to the Ethics Committee. 5 After

1. The transfer of the complaint against Senator Villar from the Ethics Committee to
the Senate Committee of the Whole is violative of Senator Villars constitutional
right to equal protection;
2. The Rules adopted by the Senate Committee of the Whole for the investigation of
the complaint filed by Senator Madrigal against Senator Villar is violative of Senator
Villars right to due process and of the majority quorum requirement under Art. VI,
Sec. 16(2) of the Constitution; and

3. The Senate Committee of the Whole likewise violated the due process clause of
the Constitution when it refused to publish the Rules of the Senate Committee of the
Whole in spite of its own provision [which] require[s] its effectivity upon
publication.13
In its Comment, respondent argues that:

2. Whether the petition is premature for failure to observe the doctrine of primary
jurisdiction or prior resort;
3. Whether the transfer of the complaint against Senator Villar from the Ethics
Committee to the Senate Committee of the Whole is violative of Senator Villars
right to equal protection;

1. The instant petition should be dismissed for failure to join or implead an

indispensable party. In the alternative, the instant petition should be archived until
such time that the said indispensable party has been joined or impleaded and
afforded the opportunity to be heard;

4. Whether the adoption of the Rules of the Ethics Committee as Rules of the Senate
Committee of the Whole is a violative of Senator Villars right to due process and of
the majority quorum requirement under Art. VI, Section 16(2) of the Constitution;
and

2. There was no grave abuse of discretion on the part of respondent Committee;

5. Whether publication of the Rules of the Senate Committee of the Whole is

required for their effectivity.

3. Petitioners are not entitled to a writ of prohibition for failure to prove grave abuse
of discretion on the part of respondent Committee of the Whole;

The Ruling of this Court

4. The principle of separation of powers must be upheld;

Indispensable Party

5. The instant petition must be dismissed for being premature. Petitioners failed to
observe the doctrine or primary jurisdiction or prior resort;

Section 7, Rule 3 of the 1997 Rules of Civil Procedure provides:

6. It is within the power of Congress to discipline its members for disorderly

behavior;

SEC. 7 Compulsory joinder of indispensable parties. - Parties in interest without whom no

final determination can be had of an action shall be joined as plaintiffs or defendants.
The test to determine if a party is an indispensable party is as follows:

7. The determination of what constitutes disorderly behavior is a political question

which exclusively pertains to Congress;
8. The Internal Rules of the Senate are not subject to judicial review in the absence
of grave abuse of discretion; [and]
9. The Rules of the Ethics Committee, which have been duly published and
adopted[,] allow the adoption of supplementary rules to govern adjudicatory
hearings.14
The Issues
The issues for the Courts resolution are the following:
1. Whether Senator Madrigal, who filed the complaint against Senator Villar, is an
indispensable party in this petition;

An indispensable party is a party who has an interest in the controversy or subject matter that a
final adjudication cannot be made, in his absence, without injuring or affecting that interest, a
party who has not only an interest in the subject matter of the controversy, but also has an
interest of such nature that a final decree cannot be made without affecting his interest or
leaving the controversy in such a condition that its final determination may be wholly
inconsistent with equity and good conscience. It has also been considered that an
indispensable party is a person in whose absence there cannot be a determination between the
parties already before the court which is effective, complete or equitable. Further, an
indispensable party is one who must be included in an action before it may properly go
forward.
A person who is not an indispensable party, however, if his interest in the controversy or
subject matter is separable from the interest of the other parties, so that it will not necessarily
be directly or injuriously affected by a decree which does complete justice between them.
Also, a person is not an indispensable party if his presence would merely permit a complete
relief between him and those already parties to the action, or if he has no interest in the subject

matter of the action. It is not a sufficient reason to declare a person to be an indispensable

party that his presence will avoid multiple litigation. 15

Transfer of the Complaint from the Ethics Committee

to the Senate Committee on the Whole

In this case, Senator Madrigal is not an indispensable party to the petition before the Court.
While it may be true that she has an interest in the outcome of this case as the author of P.S.
Resolution 706, the issues in this case are matters of jurisdiction and procedure on the part of
the Senate Committee of the Whole which can be resolved without affecting Senator
Madrigals interest. The nature of Senator Madrigals interest in this case is not of the nature
that this case could not be resolved without her participation.1awphi1

Petitioners allege that the transfer of the complaint against Senator Villar to the Senate
Committee of the Whole violates his constitutional right to equal protection. Petitioners allege
that the Senate Committee of the Whole was constituted solely for the purpose of assuming
jurisdiction over the complaint against Senator Villar. Petitioners further allege that the act was
discriminatory and removed Senator Villars recourse against any adverse report of the Ethics
Committee to the Senate as a body.

Doctrine of Primary Jurisdiction

We do not agree with petitioners.
Respondent asserts that the doctrine of primary jurisdiction "simply calls for the determination
of administrative questions, which are ordinarily questions of fact, by administrative agencies
rather than by courts of justice." 16 Citing Pimentel v. HRET,17 respondent avers that primary
recourse of petitioners should have been to the Senate and that this Court must uphold the
separation of powers between the legislative and judicial branches of the government.
The doctrine of primary jurisdiction does not apply to this case. The Court has ruled:
x x x It may occur that the Court has jurisdiction to take cognizance of a particular case, which
means that the matter involved is also judicial in character. However, if the case is such that its
determination requires the expertise, specialized skills and knowledge of the proper
administrative bodies because technical matters or intricate questions of fact are involved, then
relief must first be obtained in an administrative proceeding before a remedy will be supplied
by the courts even though the matter is within the proper jurisdiction of the court. x x x 18

Reviewing the events that led to the constitution of the Senate Committee of the Whole, the
Court notes that upon the election of Senator Enrile as Senate President on 17 November
2008, the Ethics Committee was also reorganized. Senator Lacson, who first called the
Senates attention to the alleged irregularities committed by Senator Villar, was elected as
Chairperson. On 16 December 2008, when Senator Lacson inquired whether the Minority was
ready to name their representatives to the Ethics Committee, Senator Pimentel informed the
body that there would be no member from the Minority in the Ethics Committee. On 26
January 2009, Senator Lacson reiterated his appeal to the Minority to nominate their
representatives to the Ethics Committee. Senator Pimentel informed him that it is the stand of
the Minority not to nominate any of their members to the Ethics Committee. Senator Pimentel
promised to convene a caucus to determine if the Minoritys decision on the matter is final but
the records did not show that a caucus was convened.

The issues presented here do not require the expertise, specialized skills and knowledge of
respondent for their resolution. On the contrary, the issues here are purely legal questions
which are within the competence and jurisdiction of the Court, and not an administrative
agency or the Senate to resolve.19

On 20 April 2009, Senator Villar delivered a privilege speech where he stated that he would
answer the accusations against him on the floor and not before the Ethics Committee. It
was because of the accusation that the Ethics Committee could not act with fairness on
Senator Villars case that Senator Lacson moved that the responsibility of the Ethics
Committee be undertaken by the Senate acting as a Committee of the Whole, which motion
was approved with ten members voting in favor, none against, and five abstentions.

As regards respondents invocation of separation of powers, the Court reiterates that "the
inviolate doctrine of separation of powers among the legislative, executive or judicial branches
of government by no means prescribes for absolute autonomy in the discharge by each of that
part of the governmental power assigned to it by the sovereign people." 20 Thus, it has been
held that "the power of judicial review is not so much power as it is [a] duty imposed on this
Court by the Constitution and that we would be remiss in the performance of that duty if we
decline to look behind the barriers set by the principle of separation of powers." 21 The Court,
therefore, is not precluded from resolving the legal issues raised by the mere invocation by
respondent of the doctrine of separation of powers. On the contrary, the resolution of the legal
issues falls within the exclusive jurisdiction of this Court.

The Rules of the Ethics Committee provide that "all matters relating to the conduct, rights,
privileges, safety, dignity, integrity and reputation of the Senate and its Members shall be
under the exclusive jurisdiction of the Senate Committee on Ethics and Privileges." 22
However, in this case, the refusal of the Minority to name its members to the Ethics
Committee stalled the investigation. In short, while ordinarily an investigation about one of its
members alleged irregular or unethical conduct is within the jurisdiction of the Ethics
Committee, the Minority effectively prevented it from pursuing the investigation when they
refused to nominate their members to the Ethics Committee. Even Senator Villar called the
Ethics Committee a kangaroo court and declared that he would answer the accusations against

him on the floor and not before the Ethics Committee. Given the circumstances, the referral of
the investigation to the Committee of the Whole was an extraordinary remedy undertaken by
the Ethics Committee and approved by a majority of the members of the Senate.
Adoption of the Rules of the Ethics Committee
by the Senate Committee of the Whole
Petitioners allege that the adoption of the Rules of the Ethics Committee by the Senate
Committee of the Whole is violative of Senator Villars right to due process.
We do not agree.
Again, we reiterate that, considering the circumstances of this case, the referral of the
investigation by the Ethics Committee to the Senate Committee of the Whole is an
extraordinary remedy that does not violate Senator Villars right to due process. In the same
manner, the adoption by the Senate Committee of the Whole of the Rules of the Ethics
Committee does not violate Senator Villars right to due process.
The Constitutional right of the Senate to promulgate its own rules of proceedings has been
recognized and affirmed by this Court. Thus:
First. Section 16(3), Article VI of the Philippine Constitution states: "Each House shall
determine the rules of its proceedings."
This provision has been traditionally construed as a grant of full discretionary authority to the
House of Congress in the formulation, adoption and promulgation of its own rules. As such,
the exercise of this power is generally exempt from judicial supervision and interference,
except on a clear showing of such arbitrary and improvident use of the power as will constitute
a denial of due process.

Prior Publication
Petitioners assail the non-publication of the Rules of the Senate Committee of the Whole.
Respondent counters that publication is not necessary because the Senate Committee of the
Whole merely adopted the Rules of the Ethics Committee which had been published in the
Official Gazette on 23 March 2009. Respondent alleges that there is only one set of Rules that
governs both the Ethics Committee and the Senate Committee of the Whole.
In Neri v. Senate Committee on Accountability of Public Officers and Investigations, 24 the
Court declared void unpublished rules of procedure in Senate inquiries insofar as such rules
affect the rights of witnesses. The Court cited Section 21, Article VI of the Constitution which
mandates:
Sec. 21. The Senate or the House of Representatives or any of its respective Committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
(Emphasis supplied)
The Court explained in the Resolution25 denying the motion for reconsideration:
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules of its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall be effective in the
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.

x x x. The issue partakes of the nature of a political question which, under the Constitution, is
to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. Further,
pursuant to his constitutional grant of virtually unrestricted authority to determine its own
rules, the Senate is at liberty to alter or modify these rules at any time it may see fit, subject
only to the imperatives of quorum, voting and publication. 23

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result
in violation of the rights of witnesses should be considered null and void, considering that
the rationale for the publication is to protect the rights of the witnesses as expressed in
Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are
considered valid and effective.26 (Emphasis supplied)

The only limitation to the power of Congress to promulgate its own rules is the observance of
quorum, voting, and publication when required. As long as these requirements are complied
with, the Court will not interfere with the right of Congress to amend its own rules.

In the recent case of Gutierrez v. The House of Representatives Committee on Justice, et al.,27
the Court further clarified:

x x x inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole
instance in the Constitution where there is a categorical directive to duly publish a set of rules
of procedure. Significantly notable in Neri is that with respect to the issue of publication, the
Court anchored its ruling on the 1987 Constitutions directive, without any reliance on or
reference to the 1986 case of Taada v. Tuvera. Taada naturally could neither have
interpreted a forthcoming 1987 Constitution nor had kept a tight rein on the Constitutions
intentions as expressed through the allowance of either a categorical term or a general sense of
making known the issuances.28
The Constitution does not require publication of the internal rules of the House or Senate.
Since rules of the House or the Senate that affect only their members are internal to the House
or Senate, such rules need not be published, unless such rules expressly provide for their
publication before the rules can take effect.
In this case, the proceedings before the Senate Committee of the Whole affect only members
of the Senate since the proceedings involve the Senates exercise of its disciplinary power over
one of its members. Clearly, the Rules of the Senate Committee of the Whole are internal to
the Senate. However, Section 81, Rule 15 of the Rules of the Senate Committee of the Whole
provides:
Sec. 81. EFFECTIVITY. These Rules shall be effective after publication in the Official
Gazette or in a newspaper of general circulation. 29

Incidentally, we note that Section 4, Rule 1 of the Rules of the Senate Committee of the
Whole30 is an exact reproduction of Section 4, Rule 1 of the Rules of the Senate Committee on
Ethics and Privileges31 which states that the Ethics Committee shall be composed of seven
members, contrary to the fact that the Senate Committee of the Whole consists of all members
of the Senate. In addition, Section 5(B), Rule 1 of the Rules of the Senate Committee of the
Whole32 is an exact reproduction of Section 5(B), Rule 1 of the Rules of the Senate Committee
on Ethics and Privileges 33 which states that only two members of the Ethics Committee shall
constitute a quorum, contrary to respondents allegation in its Comment that eight members of
the Senate Committee of the Whole shall constitute a quorum. 34
However, if the Senate is constituted as a Committee of the Whole, a majority of the Senate is
required to constitute a quorum to do business pursuant to Section 16(2), Article VI of the
Constitution.35 Otherwise, there will be a circumvention of this express provision of the
Constitution on quorum requirement. Obviously, the Rules of the Senate Committee of the
Whole require modification to comply with requirements of quorum and voting which the
Senate must have overlooked in this case. In any event, in case of conflict between the Rules
of the Senate Committee of the Whole and the Constitution, the latter will of course prevail.
WHEREFORE, we GRANT the petition in part. The referral of the complaint by the
Committee on Ethics and Privileges to the Senate Committee of the Whole shall take effect
only upon publication of the Rules of the Senate Committee of the Whole.
SO ORDERED.

Hence, in this particular case, the Rules of the Senate Committee of the Whole itself provide
that the Rules must be published before the Rules can take effect. Thus, even if publication is
not required under the Constitution, publication of the Rules of the Senate Committee of the
Whole is required because the Rules expressly mandate their publication. The majority of the
members of the Senate approved the Rules of the Senate Committee of the Whole, and the
publication requirement which they adopted should be considered as the will of the majority.
Respondent cannot dispense with the publication requirement just because the Rules of the
Ethics Committee had already been published in the Official Gazette. To reiterate, the Rules of
the Senate Committee of the Whole expressly require publication before the Rules can take
effect. To comply with due process requirements, the Senate must follow its own internal rules
if the rights of its own members are affected.

G.R. No. L-17144

October 28, 1960

SERGIO
OSMEA,
JR.,
petitioner,
vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA,
FAUSTINO TOBIA, LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO,
ANTONIO Y. DE PIO, BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO,
FELIPE S. ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and
EUGENIO S. BALTAO, in their capacity as members of the Special Committee created
by House Resolution No. 59, respondents.

BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmea, Jr., submitted to this Court a verified petition
for "declaratory relief, certiorari and prohibition with preliminary injunction" against
Congressman Salapida K. Pendatun and fourteen other congressmen in their capacity as
members of the Special Committee created by House Resolution No. 59. He asked for
annulment of such Resolution on the ground of infringenment of his parliamentary immunity;
he also asked, principally, that said members of the special committee be enjoined from
proceeding in accordance with it, particularly the portion authorizing them to require him to
substantiate his charges against the President with the admonition that if he failed to do so, he
must show cause why the House should not punish him.
The petition attached a copy of House Resolution No. 59, the pertinent portions of which reads
as follows:
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osmea, Jr.,
Member of the House of Representatives from the Second District of the province of
Cebu, took the floor of this chamber on the one hour privilege to deliver a speech,
entitled 'A Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from the Second District
of Cebu stated the following:.
xxx

xxx

xxx

The people, Mr. President, have been hearing of ugly reports that under your
unpopular administration the free things they used to get from the government are
now for sale at premium prices. They say that even pardons are for sale, and that
regardless of the gravity or seriousness of a criminal case, the culprit can always be
bailed out forever from jail as long as he can come across with a handsome dole. I
am afraid, such an anomalous situation would reflect badly on the kind of justice
that your administration is dispensing. . . . .
WHEREAS, the charges of the gentleman from the Second District of Cebu, if made
maliciously or recklessly and without basis in truth and in fact, would constitute a
serious assault upon the dignity and prestige of the Office of 37 3 the President,
which is the one visible symbol of the sovereignty of the Filipino people, and would
expose said office to contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee of fifteen
Members to be appointed by the Speaker be, and the same hereby is, created to
investigate the truth of the charges against the President of the Philippines made by

Honorable Sergio Osmea, Jr., in his privilege speech of June 223, 1960, and for
such purpose it is authorized to summon Honorable Sergio Osmea, jr., to appear
before it to substantiate his charges, as well as to issue subpoena and/or subpoena
duces tecum to require the attendance of witnesses and/or the production of pertinent
papers before it, and if Honorable Sergio Osmea, Jr., fails to do so to require him to
show cause why he should not be punished by the House. The special committee
shall submit to the House a report of its findings and recommendations before the
adjournment of the present special session of the Congress of the Philippines.
In support of his request, Congressman Osmea alleged; first, the Resolution violated his
constitutional absolute parliamentary immunity for speeches delivered in the House; second,
his words constituted no actionable conduct; and third, after his allegedly objectionable speech
and words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House
provides that if other business has intervened after the member had uttered obnoxious words in
debate, he shall not be held to answer therefor nor be subject to censure by the House.
Although some members of the court expressed doubts of petitioner's cause of action and the
Court's jurisdiction, the majority decided to hear the matter further, and required respondents
to answer, without issuing any preliminary injunction. Evidently aware of such circumstance
with its implications, and pressed for time in view of the imminent adjournment of the
legislative session, the special committee continued to perform its talk, and after giving
Congressman Osmea a chance to defend himself, submitted its reports on July 18, 1960,
finding said congressman guilty of serious disorderly behaviour; and acting on such report, the
House approved on the same daybefore closing its sessionHouse Resolution No. 175,
declaring him guilty as recommended, and suspending him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio,
Abeleda, San Andres Ziga, Fernandez and Balatao) 1 filed their answer, challenged the
jurisdiction of this Court to entertain the petition, defended the power of Congress to
discipline its members with suspension, upheld a House Resolution No. 175 and then invited
attention to the fact that Congress having ended its session on July 18, 1960, the Committee
whose members are the sole respondentshad thereby ceased to exist.
There is no question that Congressman Osmea, in a privilege speech delivered before the
House, made the serious imputations of bribery against the President which are quoted in
Resolution No. 59 and that he refused to produce before the House Committee created for the
purpose, evidence to substantiate such imputations. There is also no question that for having
made the imputations and for failing to produce evidence in support thereof, he was, by
resolution of the House, suspended from office for a period of fifteen months for serious
disorderly behaviour.
Resolution No. 175 states in part:

WHEREAS, the Special Committee created under and by virtue of Resolution No.
59, adopted on July 8, 1960, found Representative Sergio Osmea, Jr., guilty of
serious disorderly behaviour for making without basis in truth and in fact, scurrilous,
malicious, reckless and irresponsible charges against the President of the Philippines
in his privilege speech of June 23, 1960; and
WHEREAS, the said charges are so vile in character that they affronted and
degraded the dignity of the House of Representative: Now, Therefore, be it
RESOLVED by the House of Representatives. That Representative Sergio Osmea,
Jr., be, as he hereby is, declared guilty of serious disorderly behaviour; and . . .
As previously stated, Osmea contended in his petition that: (1) the Constitution gave him
complete parliamentary immunity, and so, for words spoken in the House, he ought not to be
questioned; (20 that his speech constituted no disorderly behaviour for which he could be
punished; and (3) supposing he could be questioned and discipline therefor, the House had lost
the power to do so because it had taken up other business before approving House Resolution
No. 59. Now, he takes the additional position (4) that the House has no power, under the
Constitution, to suspend one of its members.
Section 15, Article VI of our Constitution provides that "for any speech or debate" in
Congress, the Senators or Members of the House of Representative "shall not be questioned in
any other place." This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the
Constitution of the United States. In that country, the provision has always been understood to
mean that although exempt from prosecution or civil actions for their words uttered in
Congress, the members of Congress may, nevertheless, be questioned in Congress itself.
Observe that "they shall not be questioned in any other place" than Congress.
Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7),
recognize the House's power to hold a member responsible "for words spoken in debate."
Our Constitution enshrines parliamentary immunity which is a fundamental privilege
cherished in every legislative assembly of the democratic world. As old as the English
Parliament, its purpose "is to enable and encourage a representative of the public to discharge
his public trust with firmness and success" for "it is indispensably necessary that he should
enjoy the fullest liberty of speech, and that he should be protected from the resentment of
every one, however powerful, to whom exercise of that liberty may occasion offense." 2 Such
immunity has come to this country from the practices of Parliamentary as construed and
applied by the Congress of the United States. Its extent and application remain no longer in
doubt in so far as related to the question before us. It guarantees the legislator complete
freedom of expression without fear of being made responsible in criminal or civil actions
before the courts or any other forum outside of the Congressional Hall. But is does not protect

him from responsibility before the legislative body itself whenever his words and conduct are
considered by the latter disorderly or unbecoming a member thereof. In the United States
Congress, Congressman Fernando Wood of New York was censured for using the following
language on the floor of the House: "A monstrosity, a measure the most infamous of the many
infamous acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other
congressmen were censured for employing insulting words during debate. (2 Hinds'
Precedents, 799-801). In one case, a member of Congress was summoned to testify on a
statement made by him in debate, but invoked his parliamentary privilege. The Committee
rejected his plea. (3 Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress have been, or could be
censured, committed to prison 3, even expelled by the votes of their colleagues. The appendix
to this decision amply attest to the consensus of informed opinion regarding the practice and
the traditional power of legislative assemblies to take disciplinary action against its members,
including imprisonment, suspension or expulsion. It mentions one instance of suspension of a
legislator in a foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator for
one year.
Needless to add, the Rules of Philippine House of Representatives provide that the
parliamentary practices of the Congress of the United States shall apply in a supplementary
manner to its proceedings.
This brings up the third point of petitioner: the House may no longer take action against me,
he argues, because after my speech, and before approving Resolution No. 59, it had taken up
other business. Respondents answer that Resolution No. 59 was unanimously approved by the
House, that such approval amounted to a suspension of the House Rules, which according to
standard parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation of its Rules, it
may not, however, affect past acts or renew its rights to take action which had already lapsed.
The situation might thus be compared to laws 4 extending the period of limitation of actions
and making them applicable to actions that had lapsed. The Supreme Court of the United
States has upheld such laws as against the contention that they impaired vested rights in
violation of the Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold
divergent views. At any rate, court are subject to revocation modification or waiver at the
pleasure of the body adopting them." 5 And it has been said that "Parliamentary rules are
merely procedural, and with their observancem, the courts have no concern. They may be
waived or disregarded by the legislative body." Consequently, "mere failure to conform to

parliamentary usage will not invalidate the action (taken by a deliberative body) when the
requisited number of members have agreed to a particular measure."6
The following is quoted from a reported decision of the Supreme court of Tennessee:
The rule here invoked is one of parliamentary procedure, and it is uniformly held
that it is within the power of all deliberative bodies to abolish, modify, or waive their
own rules of procedure, adopted for the orderly con duct of business, and as security
against hasty action. (Bennet vs. New Bedford, 110 Mass, 433; Holt vs. Somerville,
127 Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex
parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280; Wheelock vs. City of
Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109;
City of Corinth vs. Sharp, 107 Miss. 696, 65 So. 888; McGraw vs. Whitson, 69
Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140
S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of
Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who
insulted the Speaker, for which Act a resolution of censure was presented, the House approved
the resolution, despite the argument that other business had intervened after the objectionable
remarks. (2 Hinds' Precedents pp. 799-800.)
On the question whether delivery of speeches attacking the Chief Executive constitutes
disorderly conduct for which Osmea may be discipline, many arguments pro and con have
been advanced. We believe, however, that the House is the judge of what constitutes disorderly
behaviour, not only because the Constitution has conferred jurisdiction upon it, but also
because the matter depends mainly on factual circumstances of which the House knows best
but which can not be depicted in black and white for presentation to, and adjudication by the
Courts. For one thing, if this Court assumed the power to determine whether Osmea conduct
constituted disorderly behaviour, it would thereby have assumed appellate jurisdiction, which
the Constitution never intended to confer upon a coordinate branch of the Government. The
theory of separation of powers fastidiously observed by this Court, demands in such situation
a prudent refusal to interfere. Each department, it has been said, had exclusive cognizance of
matters within its jurisdiction and is supreme within its own sphere. (Angara vs. Electoral
Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. The principle is well
established that the courts will not assume a jurisdiction in any case amount to an
interference by the judicial department with the legislature since each department is
equally independent within the power conferred upon it by the Constitution. . . . .

The general rule has been applied in other cases to cause the courts to refuse to
intervene in what are exclusively legislative functions. Thus, where the stated Senate
is given the power to example a member, the court will not review its action or
revise even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p.
902.) [Emphasis Ours.].
The above statement of American law merely abridged the landmark case of Clifford vs.
French.7 In 1905, several senators who had been expelled by the State Senate of California for
having taken a bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate
had given them no hearing, nor a chance to make defense, besides falsity of the charges of
bribery. The Supreme Court of California declined to interfere , explaining in orthodox juristic
language:
Under our form of government, the judicial department has no power to revise even
the most arbitrary and unfair action of the legislative department, or of either house
thereof, taking in pursuance of the power committed exclusively to that department
by the Constitution. It has been held by high authority that, even in the absence of an
express provision conferring the power, every legislative body in which is vested the
general legislative power of the state has the implied power to expel a member for
any cause which it may deem sufficient. In Hiss. vs. Barlett, 3 Gray 473, 63 Am.
Dec. 768, the supreme court of Mass. says, in substance, that this power is inherent
in every legislative body; that it is necessary to the to enable the body 'to perform its
high functions, and is necessary to the safety of the state;' 'That it is a power of selfprotection, and that the legislative body must necessarily be the sole judge of the
exigency which may justify and require its exercise. '. . . There is no provision
authority courts to control, direct, supervise, or forbid the exercise by either house
of the power to expel a member. These powers are functions of the legislative
department and therefore, in the exercise of the power this committed to it, the
senate is supreme. An attempt by this court to direct or control the legislature, or
either house thereof, in the exercise of the power, would be an attempt to exercise
legislative functions, which it is expressly forbidden to do.
We have underscored in the above quotation those lines which in our opinion emphasize the
principles controlling this litigation. Although referring to expulsion, they may as well be
applied to other disciplinary action. Their gist as applied to the case at bar: the House has
exclusive power; the courts have no jurisdiction to interfere.
Our refusal to intervene might impress some readers as subconscious hesitation due to
discovery of impermissible course of action in the legislative chamber. Nothing of that sort:
we merely refuse to disregard the allocation of constitutional functions which it is our special
duty to maintain. Indeed, in the interest of comity, we feel bound to state that in a
conscientious survey of governing principles and/or episodic illustrations, we found the House
of Representatives of the United States taking the position upon at least two occasions, that

personal attacks upon the Chief Executive constitute unparliamentary conduct or breach of
orders.8 And in several instances, it took action against offenders, even after other business
had been considered.9
Petitioner's principal argument against the House's power to suspend is the Alejandrino
precedent. In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office
for 12 months because he had assaulted another member of the that Body or certain phrases
the latter had uttered in the course of a debate. The Senator applied to this Court for
reinstatement, challenging the validity of the resolution. Although this Court held that in view
of the separation of powers, it had no jurisdiction to compel the Senate to reinstate petitioner,
it nevertheless went on to say the Senate had no power to adopt the resolution because
suspension for 12 months amounted to removal, and the Jones Law (under which the Senate
was then functioning) gave the Senate no power to remove an appointive member, like Senator
Alejandrino. The Jones Law specifically provided that "each house may punish its members
for disorderly behaviour, and, with the concurrence of two-thirds votes, expel an elective
member (sec. 18). Note particularly the word "elective."
The Jones Law, it mist be observed, empowered the Governor General to appoint "without
consent of the Senate and without restriction as to residence senators . . . who will, in his
opinion, best represent the Twelfth District." Alejandrino was one appointive Senator.

In any event, petitioner's argument as to the deprivation of the district's representation can not
be more weightly in the matter of suspension than in the case of imprisonment of a legislator;
yet deliberative bodies have the power in proper cases, to commit one of their members to
jail.12
Now come questions of procedure and jurisdiction. the petition intended to prevent the Special
Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary
injunction had been issued, the Committee performed its task, reported to the House, and the
latter approved the suspension order. The House had closed it session, and the Committee has
ceased to exist as such. It would seem, therefore, the case should be dismissed for having
become moot or academic. 13 Of course, there is nothing to prevent petitioner from filing new
pleadings to include all members of the House as respondents, ask for reinstatement and
thereby to present a justiciable cause. Most probable outcome of such reformed suit, however,
will be a pronouncement of lack of jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs.
Qeuaon.15
At any rate, having perceived suitable solutions to the important questions of political law, the
Court thought it proper to express at this time its conclusions on such issues as were deemed
relevant and decisive.
ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.

It is true, the opinion in that case contained an obiter dictum that "suspension deprives the
electoral district of representation without that district being afforded any means by which to
fill that vacancy." But that remark should be understood to refer particularly to the appointive
senator who was then the affected party and who was by the same Jones Law charged with the
duty to represent the Twelfth District and maybe the view of the Government of the United
States or of the Governor-General, who had appointed him.
It must be observed, however, that at that time the Legislature had only those power which
were granted to it by the Jones Law10; whereas now the Congress has the full legislative
powers and preprogatives of a sovereign nation, except as restricted by the Constitution. In
other words, in the Alejandrino case, the Court reached the conclusion that the Jones Law did
not give the Senate the power it then exercisedthe power of suspension for one year.
Whereas now, as we find, the Congress has the inherent legislative prerogative of suspension11
which the Constitution did not impair. In fact, as already pointed out, the Philippine Senate
suspended a Senator for 12 months in 1949.
The Legislative power of the Philippine Congress is plenary, subject only to such
limitations are found in the Republic's Constitution. So that any power deemed to be
legislative by usage or tradition, is necessarily possessed by the Philippine Congress,
unless the Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .)

G.R. No. 128055

April 18, 2001

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND
MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE
FIRST DIVISION, respondents.
VITUG, J.:
The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in
ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in

connection with pending in criminal cases filed against her for alleged violation of Republic
Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.
The instant case arose from complaints filed by a group of employees of the Commission of
Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged
violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over
the case from investigator Gualberto dela Llana after having been constituted by the Deputy
Ombudsman for Luzon upon petitioner's request, came up with a resolution which it referred,
for approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his
Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate
informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the
informations for clearance; approved, forthwith, three informations were filed on even date.

granted her provisional liberty until 05 June 1991 or until her physical condition would
warrant her physical appearance in court. Upon manifestation by the Ombudsman, however,
that petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued
an order setting the arraignment on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be
allowed provisional liberty upon a recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with prohibition and
Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the
Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the
petition issued a temporary restraining order.

In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:
"That on or about October 17, 1988, or sometime prior or subsequent thereto, in
Manila, Philippines and within the jurisdiction of this Honorable Court, accused
MIRIAM DEFENSOR-SANTIAGO, a public officer, being then the Commissioner
of the Commission on Immigration and Deportation, with evident bad faith and
manifest partiality in the exercise of her official functions, did then and there
willfully, unlawfully and criminally approve the application for legalization for the
stay of the following aliens: Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat
Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan,
Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Qiui, Wu Hong Guan Qui @ Betty Go,
Wu Hong Ru Qui @ Mary Go Xu @ Yin Yin Kua, Hong Shao Hua Xu, Hong Shao
Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu
An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai
Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai
Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong, who
arrived in the Philippines after January 1, 1984 in violation of Executive Order No.
324 dated April 13, 1988 which prohibits the legalization of said disqualified aliens
knowing fully well that said aliens are disqualified thereby giving unwarranted
benefits to said aliens whose stay in the Philippines was unlawfully legalized by said
accused." 1
Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and
the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively,
No. 91-94555 and No. 91-94897.
Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E.
Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand
(P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she
was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan

The Sandiganbayan, thus informed, issued an order deferring petitioner's arraignment and the
consideration of her motion to cancel the cash bond until further advice from the Court.
On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the
temporary restraining order. The subsequent motion for reconsideration filed by petitioner
proved unavailing.
On 06 July 1992, in the wake of media reports announcing petitioner's intention to accept a
fellowship from the John F. Kennedy School of Government at Harvard University, the
Sandiganbayan issued an order to enjoin petitioner from leaving the country.
On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice
Garchitorena from the case and to defer her arraignment pending action on her motion to
inhibit. On 09 November 1992, her motion was denied by the Sandiganbayan. The following
day, she filed anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary
Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a
motion for bill of particulars with the Sandiganbayan asseverating that the names of the aliens
whose applications she purportedly approved and thereby supposedly extended undue
advantage were conspicuously omitted in the complaint.
The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset
petitioner's arraignment not later than five days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion
to admit thirty-two amended informations. Petitioner moved for the dismissal of the 32
informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the
said informations and directed her to post bail on the criminal cases, docketed Criminal Case
No. 18371-18402, filed against her.

Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed
G.R. No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which
resolved not to disqualify its Presiding Justice, as well as its 14th March 1993 resolution
admitting the 32 Amended Informations, and seeking the nullification thereof.
Initially, the Court issued a temporary restraining order directing Presiding Justice
Garchitorena to cease and desist from sitting in the case, as well as from enforcing the 11th
March 1993 resolution ordering petitioner to post bail bonds for the 32 amended informations,
and from proceedings with her arraignment on 12 April 1993 until the matter of his
disqualification would have been resolved by the Court.
On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and
Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32
informations were consolidated into one information under Criminal Case No. 16698.
Petitioner, then filed with the Sandiganbayan a Motion to "Redetermine Probable Cause" and
to dismiss or quash said information. Pending the resolution of this incident, the prosecution
filed on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner.
On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo
Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995.
In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July
1995 motion of the prosecution within fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of
its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later
denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on
Certiorari, entitled "Miriam Defensor-Santiago vs. Sandiganbayan," docketed G.R. No.
123792.
On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend
her. On 25 January 1996, the Sandiganbayan resolved:

the Hon. Secretary of the Senate, for the implementation of the suspension herein
ordered. The Secretary of the Senate shall inform this Court of the action taken
thereon within five (5) days from receipt hereof.
"The said official shall likewise inform this Court of the actual date of
implementation of the suspension order as well as the expiry of the ninetieth day
thereof so that the same may be lifted at that time." 2
Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a
ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the
Republic of the Philippines, from any government position, and furnishing a copy thereof to
the Senate of the Philippines for the implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive suspension of an incumbent public
official charged with violation of the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. Section 13 of the statute provides:
"SECTION 13. Suspension and loss of benefits. Any incumbent public officer
against whom any criminal prosecution under a valid information under this Act or
under Title 7, Book II of the Revised Penal Code or for any offense involving fraud
upon government or public funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode of participation, is pending in
court, shall be suspended from office. Should he be convicted by final judgment, he
shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings have
been filed against him.
"In the event that such convicted officer, who may have already been separated from
the service, has already received such benefits he shall be liable to restitute the same
to the Government. (As amended by BP Blg. 195, March 16, 1982)."
In the relatively recent case of Segovia vs. Sandiganbayan, 3 the Court reiterated:

"WHEREFORE, for all the foregoing, the Court hereby grants the motion under
consideration and hereby suspends the accused Miriam Defensor-Santiago from her
position as Senator of the Republic of the Philippines and from any other
government position she may be holding at present or hereafter. Her suspension
shall be for ninety (90) days only and shall take effect immediately upon notice.

"The validity of Section 13, R.A. 3019, as amended treating of the suspension
pendente lite of an accused public officer may no longer be put at issue, having
been repeatedly upheld by this Court.

"Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate
President, Senate of the Philippines, Executive House, Taft Ave., Manila, through

"The provision of suspension pendente lite applies to all persons indicted upon a
valid information under the Act, whether they be appointive or elective officials; or

"xxx

xxx

xxx

permanent or temporary employees, or pertaining to the career or non-career

service." 4
It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension
upon determination of the validity of the information filed before it. Once the information is
found to be sufficient in form and substance, the court is bound to issue an order of suspension
as a matter of course, and there seems to be "no ifs and buts about it." 5 Explaining the nature
of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan 6 observed:
"x x x . It is not a penalty because it is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during
suspension." 7
In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has,
more than once, upheld Sandiganbayan's authority to decree the suspension of public officials
and employees indicted before it.
Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has
been charged. Thus, it has been held that the use of the word "office" would indicate that it
applies to any office which the officer charged may be holding, and not only the particular
office under which he stands accused. 8
En passant, while the imposition of suspension is not automatic or self-operative as the
validity of the information must be determined in a pre-suspension hearing, there is no hard
and fast rule as to the conduct thereof. It has been said that
"'x x x . No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate opportunity to
challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him e.g.
that he has not been afforded the right of due preliminary investigation; that the acts
for which he stands charged do not constitute a violation of the provisions of
Republic Act 3019 or the bribery provisions of the Revised Penal Code which would
warrant his mandatory suspension from office under section 13 of the Act; or he may
present a motion to quash the information on any of the grounds provided for in
Rule 117 of the Rules of Court x x x .'
"xxx

xxx

xxx

"Likewise, he is accorded the right to challenge the propriety of his prosecution on

the ground that the acts for which he is charged do not constitute a violation of Rep.
Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to
present a motion to quash the information on any other grounds provided in Rule
117 of the Rules of court.
"However, a challenge to the validity of the criminal proceedings on the ground that
the acts for which the accused is charged do not constitute a violation of the
provisions of Rep. Act 3019, or of the provisions on bribery of the revised Penal
Code, should be treated only in the same manner as a challenge to the criminal
proceeding by way of a motion to quash on the ground provided in Paragraph (a),
Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of the challenge to the validity of
the criminal proceeding, on such ground, should be limited to an inquiry whether the
facts alleged in the information, if hypothetically admitted, constitute the elements
of an offense punishable under Rep. Act 3019 or the provisions on bribery of the
Revised Penal Code." 9
The law does not require that the guilt of the accused must be established in a presuspension
proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of culpability against him, (2) the gravity of the
offense charged, or (3) whether or not his continuance in office could influence the witnesses
or pose a threat to the safety and integrity of the records and other evidence before the court
could have a valid basis in decreeing preventive suspension pending the trial of the case. All it
secures to the accused is adequate opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been afforded the right to due preliminary
investigation, that the acts imputed to him do not constitute a specific crime warranting his
mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the
information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the
Revised Rules on Criminal Procedure. 10
The instant petition is not the first time that an incident relating to petitioner's case before the
Sandiganbayan has been brought to this Court. In previous occasions, the Court has been
called upon to resolve several other matters on the subject. Thus: (1) In Santiago vs. Vasquez,
11
petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal Case No.
16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez, 12 petitioner sought
the nullification of the hold departure order issued by the Sandiganbayan via a "Motion to
Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance
of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending
Incident for Hearing; (3) in Santiago vs. Garchitorena, 13 petitioner sought the nullification of
the resolution, dated 03 March 1993, in Criminal Case No. 16698 of the Sandiganbayan (First
Division) and to declare Presiding Justice Garchitorena disqualified from acting in said
criminal case, and the resolution, dated 14 March 1993, which deemed as "filed" the 32

amended informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan, 14
petitioner assailed the denial by the Sandiganbayan of her motion for reconsideration from its
03rd August 1995 order allowing the testimony of Pedellaga. In one of these cases, 15 the
Court declared:
"We note that petitioner had previously filed two petitions before us involving
Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner
has not explained why she failed to raise the issue of the delay in the preliminary
investigation and the filing of the information against her in those petitions. A piecemeal presentation of issues, like the splitting of causes of action, is self-defeating.
"Petitioner next claims that the Amended informations did not charge any offense
punishable under Section 3 (e) of RA. No. 3019 because the official acts complained
therein were authorized under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of approving
applications for legalization of spouses and unmarried, minor children of "qualified
aliens" even though they had arrived in the Philippines after December 31, 1983.
She concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).
"In a motion to quash, the accused the accused admits hypothetically the allegations
of fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore,
petitioner admitted hypothetically in her motion that:

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of
Congress to discipline its own ranks under the Constitution which provides that each
"x x x . house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days." 17
The suspension contemplated in the above constitutional provision is a punitive measure that
is imposed upon determination by the Senate or the House of Representatives, as the case may
be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. vs.
Sandiganbayan, et al., 18 the Court affirmed the order of suspension of Congressman Paredes
by the Sandiganbayan, despite his protestations on the encroachment by the court on the
prerogatives of Congress. The Court ruled:
"x x x . Petitioner's invocation of Section 16 (3), Article VI of the Constitution
which deals with the power of each House of Congress inter alia to 'punish its
Members for disorderly behavior,' and 'suspend or expel a Member' by a vote of
two-thirds of all its Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days is unavailing, as it
appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019,
which is not a penalty but a preliminary, preventive measure, prescinding from the
fact that the latter is not being imposed on petitioner for misbehavior as a Member
of the House of Representatives."

(1) She was a public officer,

(2) She approved the application for legalization of the stay of aliens, who
arrived in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in 'evident bad faith and manifest partiality in the execution
of her official functions.'
"The foregoing allegations of fact constitute the elements of the offense defined in
Section 3 (e) of R.A. No. 3019." 16
The pronouncement, upholding the validity of the information filed against petitioner,
behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of
preventive suspension.

The doctrine of separation of powers by itself may not be deemed to have effectively excluded
members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply
recognizes each of the three co-equal and independent, albeit coordinate, branches of the
government the Legislative, the Executive and the Judiciary has exclusive prerogatives
and cognizance within its own sphere of influence and effectively prevents one branch from
unduly intruding into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987
Constitution, empowers the Court to act not only in the settlement of "actual controversies
involving rights which are legally demandable and enforceable," but also in the determination
of "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. The provision
allowing the Court to look into any possible grave abuse of discretion committed by any
government instrumentality has evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging milieu. In its normal concept,
the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of
judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to
an affair internal to either of Congress or the Executive, the Court subscribes to the view 19

that unless an infringement of any specific Constitutional proscription thereby inheres the
Court should not deign substitute its own judgment over that of any of the other two branches
of government. It is an impairment or a clear disregard of a specific constitutional precept or
provision that can unbolt the steel door for Judicial intervention. If any part of the
Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the
Court, who must promptly react in the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension
order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the
First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The

Court, nevertheless, deems it appropriate to render this decision for future guidance on the
significant issue raised by petitioner.
WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.
SO ORDERED.