G.R. No.

135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were

candidates for vice mayor of the City of Makati in the May 11, 1998 elections.
The other one was Gabriel V. Daza III. The results of the election were as
follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending

petition for disqualification filed by a certain Ernesto Mamaril who alleged that
private respondent was not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC
granted the petition of Mamaril and ordered the cancellation of the certificate of
candidacy of private respondent on the ground that he is a dual citizen and,
under §40(d) of the Local Government Code, persons with dual citizenship are
disqualified from running for any elective position. The COMELEC's Second
Division said:

What is presented before the Commission is a petition for

disqualification of Eduardo Barrios Manzano as candidate for the
office of Vice-Mayor of Makati City in the May 11, 1998 elections.
The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration
and misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of
a Filipino father and a Filipino mother. He was born in the United
 States, San Francisco, California, September 14, 1955, and is
considered in American citizen under US Laws. But notwithstanding
his registration as an American citizen, he did not lose his Filipino
citizenship.

Judging from the foregoing facts, it would appear that respondent

Manzano is born a Filipino and a US citizen. In other words, he
holds dual citizenship.

The question presented is whether under our laws, he is

disqualified from the position for which he filed his certificate of
candidacy. Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding

dual citizenship are disqualified from running for any elective local
position.

WHEREFORE, the Commission hereby declares the respondent

Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-
Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The

motion remained pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of
the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of
Makati City but suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for

disqualification.4 Petitioner's motion was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en
banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining,
the COMELEC en banc reversed the ruling of its Second Division and declared
private respondent qualified to run for vice mayor of the City of Makati in the
May 11, 1998 elections.5 The pertinent portions of the resolution of the
COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San

Francisco, California, U.S.A. He acquired US citizenship by
operation of the United States Constitution and laws under the
principle ofjus soli.

He was also a natural born Filipino citizen by operation of the 1935

Philippine Constitution, as his father and mother were Filipinos at
the time of his birth. At the age of six (6), his parents brought him
to the Philippines using an American passport as travel document.
His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of
registration. This, however, did not result in the loss of his
Philippine citizenship, as he did not renounce Philippine citizenship
and did not take an oath of allegiance to the United States.

It is an undisputed fact that when respondent attained the age of

majority, he registered himself as a voter, and voted in the
elections of 1992, 1995 and 1998, which effectively renounced his
US citizenship under American law. Under Philippine law, he no
longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the
Second Division, adopted on May 7, 1998, was not yet final.
Respondent Manzano obtained the highest number of votes among
the candidates for vice-mayor of Makati City, garnering one
hundred three thousand eight hundred fifty three (103,853) votes
over his closest rival, Ernesto S. Mercado, who obtained one
hundred thousand eight hundred ninety four (100,894) votes, or a
margin of two thousand nine hundred fifty nine (2,959) votes.
Gabriel Daza III obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying election laws, it
would be far better to err in favor of the popular choice than be
embroiled in complex legal issues involving private international law
which may well be settled before the highest court (Cf. Frivaldo vs.
Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the

resolution of the Second Division, adopted on May 7, 1998,
ordering the cancellation of the respondent's certificate of
candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be

QUALIFIED as a candidate for the position of vice-mayor of Makati
City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of

Canvassers, upon proper notice to the parties, to reconvene and
proclaim the respondent Eduardo Luis Barrios Manzano as the
winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on
the evening of August 31, 1998, proclaimed private respondent as vice mayor of
the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the
office of vice mayor of Makati City. Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen

when he:

1. He renounced his U.S. citizenship when he attained

the age of majority when he was already 37 years
old; and,

2. He renounced his U.S. citizenship when he

(merely) registered himself as a voter and voted in
the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of

Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the
Second Division adopted on 7 May 1998 was not yet final so that,
effectively, petitioner may not be declared the winner even
assuming that Manzano is disqualified to run for and hold the
elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent

Manzano — whether petitioner Mercado his personality to bring this suit
considering that he was not an original party in the case for disqualification filed
by Ernesto Mamaril nor was petitioner's motion for leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of

Procedure of the COMELEC in support of his claim that petitioner has no right to
intervene and, therefore, cannot bring this suit to set aside the ruling denying his
motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. —

Any person allowed to initiate an action or proceeding may, before
or during the trial of an action or proceeding, be permitted by the
 Commission, in its discretion to intervene in such action or
proceeding, if he has legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or
when he is so situated as to be adversely affected by such action or
proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a

motion for intervention, the Commission or the Division, in the
exercise of its discretion, shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the
matter in litigation nor an interest to protect because he is "a defeated
candidate for the vice-mayoralty post of Makati City [who] cannot be
proclaimed as the Vice-Mayor of Makati City if the private respondent be
ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to
intervene in the proceedings before the COMELEC, there had already been a
proclamation of the results of the election for the vice mayoralty contest for
Makati City, on the basis of which petitioner came out only second to private
respondent. The fact, however, is that there had been no proclamation at that
time. Certainly, petitioner had, and still has, an interest in ousting private
respondent from the race at the time he sought to intervene. The rule in Labo v.
COMELEC,6 reiterated in several cases,7 only applies to cases in which the
election of the respondent is contested, and the question is whether one who
placed second to the disqualified candidate may be declared the winner. In the
present case, at the time petitioner filed a "Motion for Leave to File Intervention"
on May 20, 1998, there had been no proclamation of the winner, and petitioner's
purpose was precisely to have private respondent disqualified "from running for
[an] elective local position" under §40(d) of R.A. No. 7160. If Ernesto Mamaril
(who originally instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner since the latter
was a rival candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a
motion for intervention only on May 20, 1998, after private respondent had been
shown to have garnered the highest number of votes among the candidates for
vice mayor. That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent is clear from §6 of
R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which
provides:

Any candidate who his been declared by final judgment to be

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

Under this provision, intervention may be allowed in proceedings for

disqualification even after election if there has yet been no final judgment
rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for

intervention was tantamount to a denial of the motion, justifying petitioner in
filing the instant petition for certiorari. As the COMELEC en banc instead decided
the merits of the case, the present petition properly deals not only with the
denial of petitioner's motion for intervention but also with the substantive issues
respecting private respondent's alleged disqualification on the ground of dual
citizenship.

This brings us to the next question, namely, whether private respondent

Manzano possesses dual citizenship and, if so, whether he is disqualified from
being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of

the Local Government Code of 1991 (R.A. No. 7160), which declares as
"disqualified from running for any elective local position: . . . (d) Those with dual
citizenship." This provision is incorporated in the Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General,
who sides with him in this case, contends that through §40(d) of the Local
Government Code, Congress has "command[ed] in explicit terms the ineligibility
of persons possessing dual allegiance to hold local elective office."

To begin with, dual citizenship is different from dual allegiance. The former
arises when, as a result of the concurrent application of the different laws of two
or more states, a person is simultaneously considered a national by the said
states.9 For instance, such a situation may arise when a person whose parents
are citizens of a state which adheres to the principle of jus sanguinis is born in a
state which follows the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our Constitution, it is possible for
the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign

countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien

fathers if by the laws of their father's' country such children are
citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the
former are considered citizens, unless by their act or omission they
are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without
performing any act, be also a citizen of another state; but the above cases are
clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While
dual citizenship is involuntary, dual allegiance is the result of an individual's
volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by
law." This provision was included in the 1987 Constitution at the instance of
Commissioner Blas F. Ople who explained its necessity as follows: 10

. . . I want to draw attention to the fact that dual allegiance is not

dual citizenship. I have circulated a memorandum to the Bernas
Committee according to which a dual allegiance — and I reiterate a
dual allegiance — is larger and more threatening than that of mere
double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed
marriages or of birth on foreign soil. And so, I do not question
double citizenship at all.

What we would like the Committee to consider is to take

constitutional cognizance of the problem of dual allegiance. For
example, we all know what happens in the triennial elections of the
Federation of Filipino-Chinese Chambers of Commerce which
 consists of about 600 chapters all over the country. There is a
Peking ticket, as well as a Taipei ticket. Not widely known is the
fact chat the Filipino-Chinese community is represented in the
Legislative Yuan of the Republic of China in Taiwan. And until
recently, sponsor might recall, in Mainland China in the People's
Republic of China, they have the Associated Legislative Council for
overseas Chinese wherein all of Southeast Asia including some
European and Latin countries were represented, which was
dissolved after several years because of diplomatic friction. At that
time, the Filipino-Chinese were also represented in that Overseas
Council.

When I speak of double allegiance, therefore, I speak of this

unsettled kind of allegiance of Filipinos, of citizens who are already
Filipinos but who, by their acts, may be said to be bound by a
second allegiance, either to Peking or Taiwan. I also took close
note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the
lack of guarantees of thorough assimilation, and especially
Commissioner Concepcion who has always been worried about
minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to

Taiwan, Singapore, China or Malaysia, and this is already
happening. Some of the great commercial places in downtown
Taipei are Filipino-owned, owned by Filipino-Chinese — it is of
common knowledge in Manila. It can mean a tragic capital outflow
when we have to endure a capital famine which also means
economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly
consider incorporating a new section, probably Section 5, in the
article on Citizenship which will read as follows: DUAL ALLEGIANCE
IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH
ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these

citizens with dual allegiance, thus: 11

. . . A significant number of Commissioners expressed their concern

about dual citizenship in the sense that it implies a double
allegiance under a double sovereignty which some of us who spoke
then in a freewheeling debate thought would be repugnant to the
sovereignty which pervades the Constitution and to citizenship itself
 which implies a uniqueness and which elsewhere in the Constitution
is defined in terms of rights and obligations exclusive to that
citizenship including, of course, the obligation to rise to the defense
of the State when it is threatened, and back of this, Commissioner
Bernas, is, of course, the concern for national security. In the
course of those debates, I think some noted the fact that as a
result of the wave of naturalizations since the decision to establish
diplomatic relations with the People's Republic of China was made
in 1975, a good number of these naturalized Filipinos still routinely
go to Taipei every October 10; and it is asserted that some of them
do renew their oath of allegiance to a foreign government maybe
just to enter into the spirit of the occasion when the anniversary of
the Sun Yat-Sen Republic is commemorated. And so, I have
detected a genuine and deep concern about double citizenship,
with its attendant risk of double allegiance which is repugnant to
our sovereignty and national security. I appreciate what the
Committee said that this could be left to the determination of a
future legislature. But considering the scale of the problem, the real
impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at
the proper time that will prohibit, in effect, or regulate double
citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the

Constitutional Commission was not with dual citizens per se but with naturalized
citizens who maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and
in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status
as persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. As Joaquin G.
Bernas, one of the most perceptive members of the Constitutional Commission,
pointed out: "[D]ual citizenship is just a reality imposed on us because we have
no control of the laws on citizenship of other countries. We recognize a child of a
Filipino mother. But whether she is considered a citizen of another country is
something completely beyond our control." 12

By electing Philippine citizenship, such candidates at the same time forswear

allegiance to the other country of which they are also citizens and thereby
terminate their status as dual citizens. It may be that, from the point of view of
the foreign state and of its laws, such an individual has not effectively renounced
his foreign citizenship. That is of no moment as the following discussion on
§40(d) between Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of

line 41, page 17: "Any person with dual citizenship" is disqualified
to run for any elective local position. Under the present
Constitution, Mr. President, someone whose mother is a citizen of
the Philippines but his father is a foreigner is a natural-born citizen
of the Republic. There is no requirement that such a natural born
citizen, upon reaching the age of majority, must elect or give up
Philippine citizenship.

On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging to
the Republic of the Philippines, may such a situation disqualify the
person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means

that at the moment when he would want to run for public office, he
has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport

but the country of origin or the country of the father claims that
person, nevertheless, as a citizen? No one can renounce. There are
such countries in the world.

SENATOR PIMENTEL. Well, the very fact that he is running for

public office would, in effect, be an election for him of his desire to
be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution

does not require an election. Under the Constitution, a person
whose mother is a citizen of the Philippines is, at birth, a citizen
without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is:

Under the Gentleman's example, if he does not renounce his other
citizenship, then he is opening himself to question. So, if he is
really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: "I am a Filipino citizen, and I have
only one citizenship."
 SENATOR ENRILE. But we are talking from the viewpoint of
Philippine law, Mr. President. He will always have one citizenship,
and that is the citizenship invested upon him or her in the
Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises

acts that will prove that he also acknowledges other citizenships,
then he will probably fall under this disqualification.

This is similar to the requirement that an applicant for naturalization must

renounce "all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty" 14 of which at the time he is a subject or citizen before he can be
issued a certificate of naturalization as a citizen of the Philippines. In Parado
v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an

oath that he renounce, his loyalty to any other country or
government and solemnly declares that he owes his allegiance to
the Republic of the Philippines, the condition imposed by law is
satisfied and compiled with. The determination whether such
renunciation is valid or fully complies with the provisions of our
Naturalization Law lies within the province and is an exclusive
prerogative of our courts. The latter should apply the law duly
enacted by the legislative department of the Republic. No foreign
law may or should interfere with its operation and application. If
the requirement of the Chinese Law of Nationality were to be read
into our Naturalization Law, we would be applying not what our
legislative department has deemed it wise to require, but what a
foreign government has thought or intended to exact. That, of
course, is absurd. It must be resisted by all means and at all cost.
It would be a brazen encroachment upon the sovereign will and
power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California
on September 4, 1955, of Filipino parents. Since the Philippines adheres to the
principle of jus sanguinis, while the United States follows the doctrine of jus soli,
the parties agree that, at birth at least, he was a national both of the Philippines
and of the United States. However, the COMELEC en banc held that, by
participating in Philippine elections in 1992, 1995, and 1998, private respondent
"effectively renounced his U.S. citizenship under American law," so that now he
is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine
elections is not sufficient evidence of renunciation and that, in any event, as the
alleged renunciation was made when private respondent was already 37 years
old, it was ineffective as it should have been made when he reached the age of
majority.

In holding that by voting in Philippine elections private respondent renounced his

American citizenship, the COMELEC must have in mind §349 of the Immigration
and Nationality Act of the United States, which provided that "A person who is a
national of the United States, whether by birth or naturalization, shall lose his
nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign
territory." To be sure this provision was declared unconstitutional by the U.S.
Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate of
candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's
certificate of candidacy, filed on March 27, 1998, contained the following
statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-

BORN" OR "NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,

BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A

FOREIGN COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I

WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE
THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND
DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT
I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY,
WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I
HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE
AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American
citizenship, effectively removing any disqualification he might have as a dual
citizen. Thus, in Frivaldo v. COMELEC it was held: 17

It is not disputed that on January 20, 1983 Frivaldo became an

American. Would the retroactivity of his repatriation not effectively
give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him "from running for any
elective local position?" We answer this question in the negative, as
there is cogent reason to hold that Frivaldo was really STATELESS
at the time he took said oath of allegiance and even before that,
when he ran for governor in 1988. In his Comment, Frivaldo wrote
that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was
stateless in the interim — when he abandoned and renounced his
US citizenship but before he was repatriated to his Filipino
citizenship."

On this point, we quote from the assailed Resolution dated

December 19, 1995:

By the laws of the United States, petitioner Frivaldo

lost his American citizenship when he took his oath of
allegiance to the Philippine Government when he ran
for Governor in 1988, in 1992, and in 1995. Every
certificate of candidacy contains an oath of allegiance
to the Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality
long before the elections of 1995 have not been effectively
rebutted by Lee. Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent any showing of
capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance
contained in private respondent's certificate of candidacy is insufficient to
constitute renunciation that, to be effective, such renunciation should have been
made upon private respondent reaching the age of majority since no law
requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is
registered as an American citizen in the Bureau of Immigration and Deportation
and that he holds an American passport which he used in his last travel to the
United States on April 22, 1997. There is no merit in this. Until the filing of his
certificate of candidacy on March 21, 1998, he had dual citizenship. The acts
attributed to him can be considered simply as the assertion of his American
nationality before the termination of his American citizenship. What this Court
said in Aznar v. COMELEC 18 applies mutatis mundatis to private respondent in
the case at bar:

. . . Considering the fact that admittedly Osmeña was both a

Filipino and an American, the mere fact that he has a Certificate
staring he is an American does not mean that he is not still a
Filipino. . . . [T]he Certification that he is an American does not
mean that he is not still a Filipino, possessed as he is, of both
nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth to tell, there is
even no implied renunciation of said citizenship. When We consider
that the renunciation needed to lose Philippine citizenship must be
"express," it stands to reason that there can be no such loss of
Philippine citizenship when there is no renunciation, either
"express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino

citizen; that he is not a permanent resident or immigrant of another country;
that he will defend and support the Constitution of the Philippines and bear true
faith and allegiance thereto and that he does so without mental reservation,
private respondent has, as far as the laws of this country are concerned,
effectively repudiated his American citizenship and anything which he may have
said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines,

when considered with the fact that he has spent his youth and adulthood,
received his education, practiced his profession as an artist, and taken part in
past elections in this country, leaves no doubt of his election of Philippine
citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking
made under oath. Should he betray that trust, there are enough sanctions for
declaring the loss of his Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial of entry into
the country of petitioner on the ground that, after taking his oath as a
naturalized citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a Portuguese
national. A similar sanction can be taken against any one who, in electing
Philippine citizenship, renounces his foreign nationality, but subsequently does
some act constituting renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of
merit.1âwphi1.nêt

SO ORDERED.
G.R. No. 142840 May 7, 2001

ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.

CONCURRING OPINION

DISSENTING OPINION

KAPUNAN, J.:

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of

the constitutional requirement that "no person shall be a Member of the House
of Representative unless he is a natural-born citizen."1
Respondent Cruz was a natural-born citizen of the Philippines. He was born in
San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental
law then applicable was the 1935 Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States

Marine Corps and without the consent of the Republic of the Philippines, took an
oath of allegiance to the United States. As a Consequence, he lost his Filipino
citizenship for under Commonwealth Act No. 63, section 1(4), a Filipino citizen
may lose his citizenship by, among other, "rendering service to or accepting
commission in the armed forces of a foreign country." Said provision of law
reads:

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his
citizenship in any of the following ways and/or events:

xxx

(4) By rendering services to, or accepting commission in, the armed of a

foreign country: Provided, That the rendering of service to, or the
acceptance of such commission in, the armed forces of a foreign country,
and the taking of an oath of allegiance incident thereto, with the consent
of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:

(a) The Republic of the Philippines has a defensive and/or offensive pact
of alliance with said foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory
with the consent of the Republic of the Philippines: Provided, That the
Filipino citizen concerned, at the time of rendering said service, or
acceptance of said commission, and taking the oath of allegiance incident
thereto, states that he does so only in connection with his service to said
foreign country; And provided, finally, That any Filipino citizen who is
rendering service to, or is commissioned in, the armed forces of a foreign
country under any of the circumstances mentioned in paragraph (a) or
(b), shall not be Republic of the Philippines during the period of his service
to, or commission in, the armed forces of said country. Upon his discharge
from the service of the said foreign country, he shall be automatically
entitled to the full enjoyment of his civil and politically entitled to the full
enjoyment of his civil political rights as a Filipino citizen x x x.

Whatever doubt that remained regarding his loss of Philippine citizenship was
erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with
his service in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630.3 He ran for and was elected as the
Representative of the Second District of Pangasinan in the May 11, 1998
elections. He won by a convincing margin of 26,671 votes over petitioner Antonio
Bengson III, who was then running for reelection.1âwphi1.nêt

Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with

respondent House of Representatives Electoral Tribunal (HRET) claiming that
respondent Cruz was not qualified to become a member of the House of
Representatives since he is not a natural-born citizen as required under Article
VI, section 6 of the Constitution.4

On March 2, 2000, the HRET rendered its decision5 dismissing the petition
for quo warranto and declaring Cruz the duly elected Representative of the
Second District of Pangasinan in the May 1998 elections. The HRET likewise
denied petitioner's motion for reconsideration of the decision in its resolution
dated April 27, 2000.6

Petitioner thus filed the present petition for certiorari assailing the HRET's
decision on the following grounds:

1. The HRET committed serious errors and grave abuse of discretion,

amounting to excess of jurisdiction, when it ruled that private respondent
is a natural-born citizen of the Philippines despite the fact that he had
ceased being such in view of the loss and renunciation of such citizenship
on his part.

2. The HRET committed serious errors and grave abuse of discretion,

amounting to excess of jurisdiction, when it considered private respondent
as a citizen of the Philippines despite the fact he did not validly acquire his
Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship

was invalid, the HRET committed serious errors and grave abuse of
discretion, amounting to excess of jurisdiction, when it dismissed the
petition despite the fact that such reacquisition could not legally and
constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who
became an American citizen, can still be considered a natural-born Filipino upon
his reacquisition of Philippine citizenship.

Petitioner asserts that respondent Cruz may no longer be considered a natural-

born Filipino since he lost h is Philippine citizenship when he swore allegiance to
the United States in 1995, and had to reacquire the same by repatriation. He
insists that Article citizens are those who are from birth with out having to
perform any act to acquire or perfect such citizenship.

Respondent on the other hand contends that he reacquired his status as natural-
born citizen when he was repatriated since the phrase "from birth" in Article IV,
Section 2 refers to the innate, inherent and inborn characteristic of being a
natural-born citizen.

The petition is without merit.

The 1987 Constitution enumerates who are Filipino citizens as follow:

(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;

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

(3) Those born before January 17, 1973 of Filipino mother, who elect
Philippine citizenship upon reaching the age of majority, and

(4) Those who are naturalized in accordance with law.8

There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the two kinds of
citizens: the natural-born citizen, and the naturalized citizen. A person who at the
time of his birth is a citizen of a particular country, is a natural-born citizen
thereof.9

As defined in the same Constitution, natural-born citizens "are those citizens of

the Philippines from birth without having to perform any act to acquire or perfect
his Philippine citezenship."10

On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization, generally under Commonwealth Act No. 473,
otherwise known as the Revised Naturalization Law, which repealed the former
Naturalization Law (Act No. 2927), and by Republic Act No. 530.11 To be
naturalized, an applicant has to prove that he possesses all the
qualifications12 and none of the disqualification13 provided by law to become a
Filipino citizen. The decision granting Philippine citizenship becomes executory
only after two (2) years from its promulgation when the court is satisfied that
during the intervening period, the applicant has (1) not left the Philippines; (2)
has dedicated himself to a lawful calling or profession; (3) has not been
convicted of any offense or violation of Government promulgated rules; or (4)
committed any act prejudicial to the interest of the nation or contrary to any
Government announced policies.14
Filipino citizens who have lost their citizenship may however reacquire the same
in the manner provided by law. Commonwealth Act. No. (C.A. No. 63),
enumerates the three modes by which Philippine citizenship may be reacquired
by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct
act of Congress.15

Naturalization is mode for both acquisition and reacquisition of Philippine

citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes
to reacquire Philippine citizenship must possess certain qualifications 17and none
of the disqualification mentioned in Section 4 of C.A. 473.18

Repatriation, on the other hand, may be had under various statutes by those
who lost their citizenship due to: (1) desertion of the armed forces;19 services in
the armed forces of the allied forces in World War II;20 (3) service in the Armed
Forces of the United States at any other time,21 (4) marriage of a Filipino woman
to an alien;22 and (5) political economic necessity.23

As distinguished from the lengthy process of naturalization, repatriation simply

consists of the taking of an oath of allegiance to the Republic of the Philippine
and registering said oath in the Local Civil Registry of the place where the person
concerned resides or last resided.

In Angat v. Republic,24 we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and

2630], the person desiring to reacquire Philippine citizenship
would not even be required to file a petition in court, and all that he had
to do was to take an oath of allegiance to the Republic of the Philippines
and to register that fact with the civil registry in the place of his residence
or where he had last resided in the Philippines. [Italics in the original.25

Moreover, repatriation results in the recovery of the original nationality.26 This

means that a naturalized Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.

In respondent Cruz's case, he lost his Filipino citizenship when he rendered

service in the Armed Forces of the United States. However, he subsequently
reacquired Philippine citizenship under R.A. No. 2630, which provides:
 Section 1. Any person who had lost his Philippine citizenship by rendering
service to, or accepting commission in, the Armed Forces of the United
States, or after separation from the Armed Forces of the United States,
acquired United States citizenship, may reacquire Philippine citizenship by
taking an oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he
resides or last resided in the Philippines. The said oath of allegiance shall
contain a renunciation of any other citizenship.

Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in
accordance with the aforecited provision, respondent Cruz is deemed to have
recovered his original status as a natural-born citizen, a status which he acquired
at birth as the son of a Filipino father.27 It bears stressing that the act of
repatriation allows him to recover, or return to, his original status before
he lost his Philippine citizenship.

Petitioner's contention that respondent Cruz is no longer a natural-born citizen

since he had to perform an act to regain his citizenship is untenable. As correctly
explained by the HRET in its decision, the term "natural-born citizen" was first
defined in Article III, Section 4 of the 1973 Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines

from birth without having to perform any act to acquire or perfect his
Philippine citizenship.

Two requisites must concur for a person to be considered as such: (1) a person
must be a Filipino citizen birth and (2) he does not have to perform any act to
obtain or perfect his Philippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino
citizens which were not considered natural-born: (1) those who were naturalized
and (2) those born before January 17, 1973,38 of Filipino mothers who, upon
reaching the age of majority, elected Philippine citizenship. Those "naturalized
citizens" were not considered natural-born obviously because they were not
Filipino at birth and had to perform an act to acquire Philippine citizenship. Those
born of Filipino mothers before the effectively of the 1973 Constitution were
likewise not considered natural-born because they also had to perform an act to
perfect their Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers
before the effectivity of the 1973 Constitution and who elected Philippine
citizenship upon reaching the majority age as natural-born. After defining who re
natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens." Consequently, only naturalized Filipinos are
considered not natural-born citizens. It is apparent from the enumeration of who
are citizens under the present Constitution that there are only two classes of
citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have
to undergo the process of naturalization to obtain Philippine citizenship,
necessarily is natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after losing Philippine
citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the
reasons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz was not required
by law to go through naturalization proceeding in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of
Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole
judge" of all contests relating to the election, returns, and qualifications of the
members of the House.29 The Court's jurisdiction over the HRET is merely to
check "whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction" on the part of the latter.30 In the absence thereof,
there is no occasion for the Court to exercise its corrective power and annul the
decision of the HRET nor to substitute the Court's judgement for that of the
latter for the simple reason that it is not the office of a petition for certiorari to
inquire into the correctness of the assailed decision.31 There is no such showing
of grave abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

[G.R. No. 150605. December 10, 2002.]

EUFROCINO M. CODILLA, SR., Petitioner, v. HON. JOSE DE VENECIA,

ROBERTO P. NAZARENO, in their official capacities as Speaker and
Secretary-General of the House of Representatives, respectively, and
MA. VICTORIA L. LOCSIN, Respondents.

DECISION

PUNO, J.:

In a democracy, the first self-evident principle is that he who has been rejected
by the people cannot represent the people. Respondent Ma. Victoria L. Locsin
lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001
elections as Representative of the 4th legislative district of Leyte. The most
sophisticated legal alchemy cannot justify her insistence that she should continue
governing the people of Leyte against their will. The enforcement of the
sovereign will of the people is not subject to the discretion of any official of the
land.chanrob1es virtua1 law library

This is a Petition for Mandamus and Quo Warranto directed against respondents
Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the
House of Representatives to compel them to implement the decision of the
Commission on Elections en banc by (a) administering the oath of office to
petitioner as the duly-elected Representative of the 4th legislative district of
Leyte, and (b) registering the name of the petitioner in the Roll of Members of
the House of Representatives, and against respondent Ma. Victoria L. Locsin for
usurping, intruding into, and unlawfully holding and exercising the said public
office on the basis of a void proclamation.

The facts are uncontroverted. Petitioner and respondent Locsin were candidates
for the position of Representative of the 4th legislative district of Leyte during
the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City
while respondent Locsin was the sitting Representative of the 4th legislative
district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of
Kananga, Leyte, filed directly with the COMELEC main office a Petition for
Disqualification 1 against the petitioner for indirectly soliciting votes from the
registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68(a)
of the Omnibus Election Code. It was alleged that the petitioner used the
equipments and vehicles owned by the City Government of Ormoc to extract,
haul and distribute gravel and sand to the residents of Kananga and Matag-ob,
Leyte, for the purpose of inducing, influencing or corrupting them to vote for
him. Attached to the petition are the (a) Affidavits of Basilio Bates, 2 Danilo D.
Maglasang, 3 Cesar A. Laurente; 4 (b) Joint Affidavit of Agripino C. Alferez and
Rogelio T. Salvera; 5 (c) Extract Records from the Police Blotter executed by
Police Superintendent Elson G. Pecho; 6 and (d) Photographs showing
government dump trucks, haulers and surfacers and portions of public roads
allegedly filled-in and surfaced through the intercession of the Respondent. 7
The case was docketed as SPA No. 01-208 and assigned to the COMELEC’s
Second Division.

On May 10, 2001, the COMELEC Second Division issued an Order delegating the
hearing and reception of evidence on the disqualification case to the Office of the
Regional Director of Region VIII. 8 On May 11, 2001, the COMELEC Second
Division sent a telegram informing the petitioner that a disqualification case was
filed against him and that the petition was remanded to the Regional Election
Director for investigation. 9

At the time of the elections on May 14, 2001, the Regional Election Director had
yet to hear the disqualification case. Consequently, petitioner was included in the
list of candidates for district representative and was voted for. The initial results
showed that petitioner was the winning candidate.chanrob1es virtua1 1aw
1ibrary

On May 16, 2001, before the counting could be finished, respondent Locsin
joined as intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend
Proclamation of Respondent [herein petitioner]" with the COMELEC Second
Division. 10 Respondent Locsin alleged that "the evidence on record against
respondent is very strong and unless rebutted remains." She urged the
Commission to set the hearing of the disqualification case and prayed for the
suspension of the proclamation of the respondent "so as not to render the
present disqualification case moot and academic." A copy of the Motion was
allegedly served on petitioner by registered mail but no registry receipt was
attached thereto. 11

On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to
Suspend Proclamation of Respondent" stating "there is clear and convincing
evidence showing that the respondent is undoubtedly guilty of the charges
against him and this remains unrebutted by the Respondent." A copy of the
Motion was sent to the petitioner and the corresponding registry receipt was
attached to the pleading. 12 The records, however, do not show the date the
petitioner received the motion.chanrob1es virtua1 1aw 1ibrary

On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-
Parte Order 13 directing the Provincial Board of Canvassers of Leyte to suspend
the proclamation of petitioner in case he obtains the highest number of votes by
reason of "the seriousness of the allegations in the petition for disqualification."
14 It also directed the Regional Election Director to speed up the reception of
evidence and to forward immediately the complete records together with its
recommendation to the Office of the Clerk of the Commission. 15 As a result,
petitioner was not proclaimed as winner even though the final election results
showed that he garnered 71,350 votes as against respondent Locsin’s 53,447
votes. 16

At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on
May 24, 2001 that petitioner was able to file an Answer to the petition for his
disqualification with the Regional Election Director, alleging that: (a) he has not
received the summons together with the copy of the petition; (b) he became
aware of the matter only by virtue of the telegram sent by the COMELEC Second
Division informing him that a petition was filed against him and that the Regional
Election Director was directed to investigate and receive evidence therewith; and
(c) he obtained a copy of the petition from the COMELEC Regional Office No. 8
at his own instance. 17 Petitioner further alleged that the maintenance, repair
and rehabilitation of barangay roads in the municipalities of Matag-ob and
Kananga were undertaken without his authority, participation or directive as City
Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B.
Borinaga; 18 (b) Copy of the Excerpt from the Minutes of the Regular Session of
Barangay Monterico; 19 (c) Affidavit of Wilfredo A. Fiel; 20 (d) Supplemental
Affidavit of Wilfredo A. Fiel; 21 and (e) Affidavit of Arnel Y. Padayao. 22

On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension, 23

alleging that (a) he did not receive a copy of the Motion to Suspend his
Proclamation and hence, was denied the right to rebut and refute the allegations
in the Motion; (b) that he did not receive a copy of the summons on the petition
for disqualification and after personally obtaining a copy of the petition, filed the
requisite answer only on May 24, 2001; and (c) that he received the telegraph
Order of the COMELEC Second Division suspending his proclamation only on May
22, 2001. He attached documentary evidence in support of his Motion to Lift the
Suspension of his proclamation, and requested the setting of a hearing on his
Motion. 24

On May 30, 2001, an oral argument was conducted on the petitioner’s Motion
and the parties were ordered to submit their respective memoranda. 25 On June
4, 2001, petitioner submitted his Memorandum 26 in support of his Motion
assailing the suspension of his proclamation on the grounds that: (a) he was not
afforded due process; (b) the order has no legal and factual basis; and (c)
evidence of his guilt is patently inexistent for the purpose of suspending his
proclamation. He prayed that his proclamation as winning congressional
candidate be expediently made, even while the disqualification case against him
continue upon due notice and hearing. He attached the following additional
evidence in his Memorandum: (a) Copy of certification issued by PNP Senior
Inspector Benjamin T. Gorre; 27 (b) Certification issued by Elena S. Aviles, City
Budget Officer; 28 (c) Copy of certification issued by Wilfredo A. Fiel, City
Engineer of Ormoc; 29 (d) Joint Affidavit of Antonio Patenio and Pepito Restituto;
30 and (e) Affidavits of Demetrio Brion, 31 Igmedio Rita 32 and Gerardo
Monteza. 33 Respondent Locsin’s memorandum also contained additional
affidavits of his witnesses. 34

Petitioner’s Motion to Lift the Order of Suspension, however, was not resolved.
Instead, on June 14, 2001, the COMELEC Second Division promulgated its
Resolution 35 in SPA No. 01-208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification. It directed the "immediate
proclamation of the candidate who garnered the highest number of votes . . . ."
A copy of said Resolution was sent by fax to the counsel of petitioner in Cebu
City in the afternoon of the following day. 36

By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350,
were declared stray even before said Resolution could gain finality. On June 15,
2001, respondent Locsin was proclaimed as the duly elected Representative of
the 4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte.
It issued a Certificate of Canvass of Votes and Proclamation of the Winning
Candidates for Member of the House of Representatives stating that "MA.
VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND
FOUR HUNDRED FORTY SEVEN (53,447) votes representing the highest number
of votes legally cast in the legislative district for said office." 37 Respondent
Locsin took her oath of office on June 18, 2001 and assumed office on June 30,
2001.

On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a
Motion for Reconsideration 38 from the June 14, 2001 Resolution of the
COMELEC Second Division which ordered his disqualification, as well as an
Addendum to the Motion for Reconsideration. 39 Petitioner alleged in his Motion
for Reconsideration that the COMELEC Second Division erred: (1) in disqualifying
petitioner on the basis solely of the dubious declaration of the witnesses for
respondent Locsin; (2) in adopting in toto the allegations of the witnesses for
respondent Locsin; and (3) in promulgating the resolution in violation of its own
rules of procedure and in directing therein the immediate proclamation of the
second highest ‘vote getter.’ Respondent Locsin and her co-petitioner in SPA No.
01-208 filed a joint Opposition to the Motion for Reconsideration. 40

On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation, 41 docketed as SPC No. 01-324, assailing
the validity of the proclamation of respondent Locsin who garnered only the
second highest number of votes. Respondent Locsin filed her Answer alleging
that: (1) the Commission lost jurisdiction to hear and decide the case because of
the proclamation of Locsin and that any question on the "election, returns, and
qualification" of Locsin can only be taken cognizance of by the House of
Representatives Electoral Tribunal (HRET); (2) the case should be filed and
heard in the first instance by a Division of the Commission and not directly by
the Commission en banc; and (3) the proclamation of Locsin was valid because
she received the highest number of valid votes cast, the votes of Codilla being
stray.

On June 28, 2001, petitioner filed an Urgent Manifestation 42 stating that he was
deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his Memorandum was in support of his Motion
for the lifting of the suspension of his proclamation, the COMELEC Second
Division instead ruled on the main disqualification case. In consonance with his
prayer that a full-dress hearing be conducted on the disqualification case, he
submitted Affidavits of additional witnesses 43 which he claims would refute and
substantially belie the allegations of petitioner’s/intervenor’s witnesses. A Reply,
44 Rejoinder 45 and Sur-Rejoinder 46 were respectively filed by the parties.
Consequently, the motion for reconsideration in SPA No. 01-208 and the petition
for declaration of nullity in SPC No. 01-324 were submitted for
resolution.chanrob1es virtua1 1aw 1ibrary

From the records, it appears that initially, a "Resolution" penned by

Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the
Office of the Chairman, dismissing the petition for declaration of nullity for lack
of jurisdiction and denying the motion for reconsideration filed by petitioner
Codilla. 47 Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra
submitted their respective dissenting opinions 48 to the Javier resolution. It
bears emphasis that Commissioner Tuason, Jr. was the ponente of the
Resolution of the COMELEC Second Division which ordered the disqualification of
petitioner but after considering the additional evidence presented by the latter,
he concluded that the totality of the evidence was clearly in petitioner’s favor.
Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who
was the Presiding Commissioner of the Second Division, also dissented and voted
to grant Codilla’s motion for reconsideration on the ground that" [T]he people of
Leyte have spoken and I respect the electorate’s will. . . ." 49

On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a

"Vote and Opinion and Summary of Votes" reversing the resolution of the Second
Division and declaring the proclamation of respondent Locsin as null and void.
The dispositive portion reads:jgc:chanrobles.com.ph
"JUDGMENT

WHEREFORE, in view of all the foregoing considerations, I concur with

Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and
Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for
reconsideration and to REVERSE the resolution of the Commission (Second
Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently,
in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and
declare as null and void the proclamation of losing candidate Locsin.

Accordingly:chanrob1es virtual 1aw library

1. On the Motion for Reconsideration of the disqualification resolution against

Codilla, promulgated by the Commission (Second Division) on June 14, 2001
(SPA No. 01-208), I vote:chanrob1es virtual 1aw library

(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M.

Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division)
promulgated on June 14, 2001, for insufficiency of evidence;

(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by

the Commission (Second Division) on May 18, 2001, having been issued without
hearing and without any finding that the evidence of guilt of petitioner Codilla is
strong and, thus, null and void;

(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for" (t)he immediate proclamation of
the candidate who garnered the highest number of votes, to the exclusion of
respondent" and the concurrent order for "the Provincial Board of Canvasser (sic)
of Leyte to immediately reconvene and thereafter proclaim forthwith the
candidate who obtained the highest number of votes counting out the
Respondent" the same being violative of election laws, established jurisprudence,
and resolutions of the Commission;

(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, that the votes of respondent Codilla are
"considered stray and invalid" said ruling being issued on the basis of an
inapplicable decision, and contrary to established jurisprudence;

(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate
for Representative of the Fourth Legislative district of Leyte to comply with its
ministerial duty to proclaim the candidate who garnered the highest number of
votes in the elections for that position; and

(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to

vacate the office of Representative of the House of Representatives representing
the Fourth legislative district of Leyte and, for this purpose, to inform the House
of Representatives through the Honorable Speaker of this resolution for its
attention and guidance; and

2. On the petition for Declaration of Nullity of proclamation of respondent Ma.

Victoria L. Locsin (SPC No. 01-324), I vote:chanrob1es virtual 1aw library

(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and
void the proclamation of losing candidate Locsin, the proclamation being violative
of election laws, established jurisprudence, and resolutions of the Commission on
Elections;

(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by

the Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having
been issued without hearing and without any finding that the evidence of guilt of
petitioner Codilla is strong and, thus, null and void;

(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, for" (t)he immediate
proclamation of the candidate who garnered the highest number of votes, to the
exclusion of respondent" and the concurrent order for "the provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim
forthwith the candidate who obtained the highest number of votes counting out
the Respondent" the same being violative of election laws, established
jurisprudence, and resolutions of the Commission;

(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of
respondent Codilla are "considered stray and invalid" said ruling being issued on
the basis of an inapplicable decision, and contrary to established jurisprudence;

(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate
for Representative of the Fourth legislative district of Leyte he (sic) having
garnered the highest number of votes in the elections for the position; and

(f) to order respondent Locsin, upon the finality of this resolution, to vacate the
office of Representative of the House of Representatives representing the Fourth
Legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its
attention and guidance.chanrob1es virtua1 1aw 1ibrary

Summary of Votes

Considering the FOUR (4) VOTES of the Chairman and Commissioners

Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant
the Motion for Reconsideration of Codilla and reverse the disqualification
Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated
on June 14, 2001, and as an inevitable consequence, in voting to grant the
petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in
SPC No. 01-324, the verdict/opinion of the Chairman and the three (3)
Commissioners taken together now stands, as it is, the MAJORITY DECISION of
the Commission En Banc in both cases; and the "Resolution" submitted by three
(3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner
Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is considered, as
it is, the MINORITY DECISION of the Commission En Banc in both cases.

The MAJORITY DECISION was arrived at after proper consultation with those
who joined the majority. The Chairman and the three (3) Commissioners
comprising the majority decided that no one will be assigned to write a Majority
Decision. Instead, each one will write his own separate opinion. Commissioners
Borra, Tuason, Jr. and the undersigned Chairman submitted separate opinions.
Commissioner Lantion wrote an explanation on his vote." 50

The aforequoted judgment was adopted in a "Vote of Adoption" signed by

Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A.
Tuason, Jr. 51

Respondent Locsin did not appeal from this decision annulling her proclamation.
Instead, she filed a "Comment and Manifestation" 52 with the COMELEC en banc
questioning the procedure and the manner by which the decision was issued. In
addition, respondent Locsin requested and was issued an opinion by House of
Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte
III declaring that the COMELEC has no jurisdiction to nullify the proclamation of
respondent Locsin after she had taken her oath and assumed office since it is the
HRET which is the sole judge of election, returns and qualifications of Members
of the House. 53 Relying on this opinion, respondent Locsin submitted a written
privileged speech to the House during its regular session on September 4, 2001,
where she declared that she will not only disregard but will openly defy and
disobey the COMELEC en banc resolution ordering her to vacate her position. 54

On September 6, 2001, the COMELEC en banc issued an Order 55 constituting

the members of the Provincial Board of Canvassers of Leyte to implement the
aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the
candidate who obtained the highest number of votes in the district, as the duly-
elected Representative of the Fourth Legislative district of Leyte, and accordingly
issue a Certificate of Canvass and Proclamation of Winning Candidate for
Member of the House of Representatives . . ., based on the city/municipal
certificates of canvass submitted beforehand to the previous Provincial Board of
Canvassers of Leyte. . . ."cralaw virtua1aw library

On September 12, 2001, petitioner Codilla was proclaimed by the Provincial

Board of Canvassers as the duly-elected Representative of the 4th legislative
district of Leyte, having obtained a total of 71,350 votes representing the highest
number of votes cast in the district. 56 On the same day, petitioner took his oath
of office before Executive Judge Fortunito L. Madrona of the Regional Trial Court
of Ormoc City. 57

On September 14, 2001, petitioner wrote the House of Representatives, thru

respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc resolution annulling the proclamation of respondent Locsin,
and proclaiming him as the duly-elected Representative of the 4th legislative
district of Leyte. 58 Petitioner also served notice that "I am assuming the duties
and responsibilities as Representative of the fourth legislative district of Leyte to
which position I have been lawfully elected and proclaimed. On behalf of my
constituents, I therefore expect that all rights and privileges intended for the
position of Representative of the fourth legislative district of Leyte be accorded
to me, including all physical facilities and staff support." On the basis of this
letter, a Memorandum 59 dated October 8, 2001 was issued by Legal Affairs
Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia,
stating that "there is no legal obstacle to complying with the duly promulgated —
and now final and executory — COMELEC Decision of August 29, 2001 . . .
." chanrob1es virtua1 1aw 1ibrary

These notwithstanding, and despite receipt by the House of Representatives of a

copy of the COMELEC en banc resolution on September 20, 2001, 60 no action
was taken by the House on the letter-appeal of petitioner. Hence, petitioner
sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter 61
addressed to respondent Speaker De Venecia, dated October 25, 2001, and
signed by Party President Teofisto T. Guingona, Jr., Secretary-General Heherson
T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting
the House of Representatives to act decisively on the matter in order that
petitioner "can avail of whatever remedy is available should their action remain
unfavorable or otherwise undecisive."cralaw virtua1aw library

In response, Speaker De Venecia sent a letter 62 dated October 30, 2001,

stating that:jgc:chanrobles.com.ph
"We recognize the finality of the COMELEC decision and we are inclined to
sustain it. However, Rep. Locsin has officially notified the HOUSE in her privilege
speech, inserted in the HOUSE Journal dated September 4, 2001, that she shall
‘openly defy and disobey’ the COMELEC ruling. This ultimately means that
implementing the decision would result in the spectacle of having two (2)
legislators occupying the same congressional seat, a legal situation, the only
consideration, that effectively deters the HOUSE’s liberty to take action.

In this light, the accepted wisdom is that the implementation of the COMELEC
decision is a matter that can be best, and with finality, adjudicated by the
Supreme Court, which, hopefully, shall act on it most expeditiously." (emphases
supplied)

Hence, the present petition for mandamus and quo warranto.

Petitioner submits that by virtue of the resolution of the COMELEC en banc which
has become final and executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of the Speaker of the House of
Representatives, as its Administrative Head and Presiding Officer, to implement
the said resolution of the COMELEC en banc by installing him as the duly-elected
Representative of the 4th legislative district of Leyte; and (2) of the Secretary-
General, as official custodian of the records of the House, to formally register his
name in the Roll of Members of the House and delete the name of respondent
Locsin therefrom. Petitioner further contends that respondent Locsin has been
usurping and unlawfully holding the public office of Representative of the 4th
legislative district of Leyte considering that her premature proclamation has been
declared null and void by the COMELEC en banc. He alleges that the action or
inaction of public respondents has deprived him of his lawful right to assume the
office of Representative of the 4th legislative district of Leyte.

In his Comment, 63 public respondent Speaker De Venecia alleged that

mandamus will not lie to compel the implementation of the COMELEC decision
which is not merely a ministerial duty but one which requires the exercise of
discretion by the Speaker of the House considering that: (1) it affects the
membership of the House; and (2) there is nothing in the Rules of the House of
Representatives which imposes a duty on the House Speaker to implement a
COMELEC decision that unseats an incumbent House member.

In his Comment, 64 public respondent Secretary-General Nazareno alleged that

in reading the name of respondent Locsin during the roll call, and in allowing her
to take her oath before the Speaker-elect and sit as Member of the House during
the Joint Session of Congress, he was merely performing official acts in
compliance with the opinions 65 rendered by House of Representatives Chief
Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC
has no jurisdiction to declare the proclamation of respondent Locsin as null and
void since it is the HRET which is the sole judge of all election, returns and
qualifications of Members of the House. He also contends that the determination
of who will sit as Member of the House of Representatives is not a ministerial
function and cannot, thus, be compelled by mandamus.

Respondent Locsin, in her Comment, 66 alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the
House of Representatives for under Section 17, Article VI of the Constitution it is
the HRET which is the sole judge of all contests relating to the election, returns
and qualifications of Members of the House of Representatives. She likewise
asserts that this Court cannot issue the writ of mandamus against a co-equal
legislative department without grossly violating the principle of separation of
powers. She contends that the act of recognizing who should be seated as a
bona fide member of the House of Representatives is not a ministerial function
but a legislative prerogative, the performance of which cannot be compelled by
mandamus. Moreover, the prayer for a writ of mandamus cannot be directed
against the Speaker and Secretary-General because they do not have the
authority to enforce and implement the resolution of the COMELEC.chanrob1es
virtua1 1aw 1ibrary

Additionally, respondent Locsin urges that the resolution of the COMELEC en

banc is null and void for lack of jurisdiction. First, it should have dismissed the
case pending before it after her proclamation and after she had taken her oath
of office. Jurisdiction then was vested in the HRET to unseat and remove a
Member of the House of Representatives. Second, the petition for declaration of
nullity is clearly a pre-proclamation controversy and the COMELEC en banc has
no original jurisdiction to hear and decide a pre-proclamation controversy. It
must first be heard by a COMELEC Division. Third, the questioned decision is
actually a "hodge-podge" decision because of the peculiar manner in which the
COMELEC disposed of the case.

Finally, respondent Locsin asserts that the matter of her qualification and
eligibility has been categorically affirmed by the HRET when it dismissed the quo
warranto case filed against her, docketed as HRET Case No. 01-043, entitled
"Paciano Travero v. Ma. Victoria Locsin," on the ground that "the allegations
stated therein are not proper grounds for a petition for quo warranto against a
Member of the House of Representatives under section 253 of the Omnibus
Election Code and Rule 17 of the HRET Rules, and that the petition was filed
late." 67

In his Reply, 68 petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court,
not to seek an opinion from the Chief Legal Counsel of the House of
Representatives; that the HRET has no jurisdiction over a petition for declaration
of nullity of proclamation which is based not on ineligibility or disloyalty, but by
reason that the candidate proclaimed as winner did not obtain the highest
number of votes; that the petition for annulment of proclamation is a pre-
proclamation controversy and, hence, falls within the exclusive jurisdiction of the
COMELEC pursuant to section 242 of B.P. Blg. 881 69 and section 3, Article IX
(C) of the Constitution; that respondent Speaker De Venecia himself recognizes
the finality of the COMELEC decision but has decided to refer the matter to the
Supreme Court for adjudication; that the enforcement and implementation of a
final decision of the COMELEC involves a ministerial act and does not encroach
on the legislative power of Congress; and that the power to determine who will
sit as Member of the House does not involve an exercise of legislative power but
is vested in the sovereign will of the electorate.

The core issues in this case are: (a) whether the proclamation of respondent
Locsin by the COMELEC Second Division is valid; (b) whether said proclamation
divested the COMELEC en banc of jurisdiction to review its validity; and (c)
assuming the invalidity of said proclamation, whether it is the ministerial duty of
the public respondents to recognize petitioner Codilla, Sr. as the legally elected
Representative of the 4th legislative district of Leyte vice respondent Locsin.

Whether the proclamation of respondent Locsin is valid.

After carefully reviewing the records of this case, we find that the proclamation
of respondent Locsin is null and void for the following reasons:chanrob1es virtual
1aw library

First. The petitioner was denied due process during the entire proceedings
leading to the proclamation of respondent Locsin.

COMELEC Resolution Nos. 3402 70 sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:jgc:chanrobles.com.ph

"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE

OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION

(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the

Omnibus Election Code and the verified petition to disqualify a candidate for lack
of qualifications or possessing same grounds for disqualification, may be filed
any day after the last day for filing of certificates of candidacy but not later than
the date of proclamation.

(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus

Election Code shall be filed in ten (10) legible copies by any citizen of voting age,
or duly registered political party, organization or coalition of political parties
against any candidate who in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the
Commission of.

2.a having given money or other material consideration to influence, induce or

corrupt the voters or public officials performing electoral functions;

2.b having committed acts of terrorism to enhance his candidacy;cralawlibrary :

red

2.c having spent in his election campaign an amount in excess of that allowed by
the Omnibus Election Code;

2.d having solicited, received or made any contribution prohibited under Sections
89, 95, 96, 97 and 104 of the Omnibus Election Code;

2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.

x x x

(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00,
the offices concerned shall docket the petition and assign to it a docket number
which must be consecutive, according to the order of receipt and must bear the
year and prefixed as SPA with the corresponding initial of the name of the office,
i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-001;

(5) Within three (3) days from filing of the petitions, the offices concerned shall
issue summons to the respondent candidate together with a copy of the petition
and its enclosures, if any;

(6) The respondent shall be given three (3) days from receipt of summons within
which to file his verified answer (not a motion to dismiss) to the petition in ten
(10) legible copies, serving a copy thereof upon the petitioner. Grounds for
Motion to Dismiss may be raised as an affirmative defense;

(7) The proceeding shall be summary in nature. In lieu of the testimonies, the
parties shall submit their affidavits or counter-affidavits and other documentary
evidences including their position paper;

(8) The hearing must be completed within ten (10) days from the date of the
filing of the answer. The hearing officer concerned shall submit to the Clerk of
the Commission through the fastest means of communication, his findings,
reports and recommendations within five (5) days from the completion of the
hearing and reception of evidence together with the complete records of the
case;

(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the Commission
shall immediately docket the case consecutively and calendar the same for raffle
to a division;

(10) The division to whom the case is raffled, shall after consultation, assign the
same to a member who shall pen the decision, within five (5) days from the date
of consultation."cralaw virtua1aw library

Resolution No. 3402 clearly requires the COMELEC, through the Regional Election
Director, to issue summons to the respondent candidate together with a copy of
the petition and its enclosures, if any, within three (3) days from the filing of the
petition for disqualification. Undoubtedly, this is to afford the respondent
candidate the opportunity to answer the allegations in the petition and hear his
side. To ensure compliance with this requirement, the COMELEC Rules of
Procedure requires the return of the summons together with the proof of service
to the Clerk of Court of the COMELEC when service has been completed,
viz:jgc:chanrobles.com.ph

"Rule 14. Summons

x x x

Section 5. Return. — When the service has been completed by personal service,
the server shall give notice thereof, by registered mail, to the protestant or his
counsel and shall return the summons to the Clerk of Court concerned who
issued it, accompanied with the proof of service.

Section 6. Proof of Service. — Proof of service of summons shall be made in the

manner provided for in the Rules of Court in the Philippines."cralaw virtua1aw
library

Thereafter, hearings, to be completed within ten (10) days from the filing of the
Answer, must be conducted. The hearing officer is required to submit to the
Clerk of the Commission his findings, reports and recommendations within five
(5) days from the completion of the hearing and reception of evidence together
with the complete records of the case.

(a) Petitioner was not notified of the petition for his disqualification through the
service of summons nor of the Motions to suspend his proclamation.chanrob1es
virtua1 1aw 1ibrary

The records of the case do not show that summons was served on the petitioner.
They do not contain a copy of the summons allegedly served on the petitioner
and its corresponding proof of service. Furthermore, private respondent never
rebutted petitioner’s repeated assertion that he was not properly notified of the
petition for his disqualification because he never received summons. 71
Petitioner claims that prior to receiving a telegraphed Order from the COMELEC
Second Division on May 22, 2001, directing the District Board of Canvassers to
suspend his proclamation, he was never summoned nor furnished a copy of the
petition for his disqualification. He was able to obtain a copy of the petition and
the May 22 Order of the COMELEC Second Division by personally going to the
COMELEC Regional Office on May 23, 2001. Thus, he was able to file his Answer
to the disqualification case only on May 24, 2001.

More, the proclamation of the petitioner was suspended in gross violation of

section 72 of the Omnibus Election Code which provides:jgc:chanrobles.com.ph

"Sec. 72. Effects of disqualification cases and priority. — The Commission and
the courts shall give priority to cases of disqualification by reason of violation of
this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number
of votes in such election, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption to office." (emphases
supplied)

In the instant case, petitioner has not been disqualified by final judgment when
the elections were conducted on May 14, 2001. The Regional Election Director
has yet to conduct hearing on the petition for his disqualification. After the
elections, petitioner was voted in office by a wide margin of 17,903. On May 16,
2001, however, respondent Locsin filed a Most Urgent Motion for the suspension
of petitioner’s proclamation. The Most Urgent Motion contained a statement to
the effect that a copy was served to the petitioner through registered mail. The
records reveal that no registry receipt was attached to prove such service. 72
This violates COMELEC Rules of Procedure requiring notice and service of the
motion to all parties, viz:jgc:chanrobles.com.ph

"Section 4. Notice. — Notice of a motion shall be served by the movant to all

parties concerned, at least three (3) days before the hearing thereof, together
with a copy of the motion. For good cause shown, the motion may be heard on
shorter notice, especially on matters which the Commission or the Division may
dispose of on its own motion.

The notice shall be directed to the parties concerned and shall state the time and
place of the hearing of the motion.

Section 5. Proof of Service. — No motion shall be acted upon by the Commission

without proof of service of notice thereof, except when the Commission or a
Division is satisfied that the rights of the adverse party or parties are not
affected."cralaw virtua1aw library

Respondent’s Most Urgent Motion does not fall under the exceptions to notice
and service of motions. First, the suspension of proclamation of a winning
candidate is not a matter which the COMELEC Second Division can dispose of
motu proprio. Section 6 of R.A. No. 6646 73 requires that the suspension must
be "upon motion by the complainant or any intervenor",
viz:jgc:chanrobles.com.ph

"Section 6. Effect of Disqualification Case. — Any candidate who has been

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

Second, the right of an adverse party, in this case, the petitioner, is clearly
affected. Given the lack of service of the Most Urgent Motion to the petitioner,
said Motion is a mere scrap of paper. 74 It cannot be acted upon by the
COMELEC Second Division.chanrob1es virtua1 1aw 1ibrary

On May 18, 2001 at exactly 5:00 p.m., 75 respondent Locsin filed a Second Most
Urgent Motion for the suspension of petitioner’s proclamation. Petitioner was
served a copy of the Second Motion again by registered mail. A registry receipt
76 was attached evidencing service of the Second Most Urgent Motion to the
petitioner but it does not appear when the petitioner received a copy thereof.
That same day, the COMELEC Second Division issued an Order suspending the
proclamation of petitioner. Clearly, the petitioner was not given any opportunity
to contest the allegations contained in the petition for disqualification. The Order
was issued on the very same day the Second Most Urgent Motion was filed. The
petitioner could not have received the Second Most Urgent Motion, let alone
answer the same on time as he was served a copy thereof by registered mail.

Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only
when evidence of the winning candidate’s guilt is strong. In the case at bar, the
COMELEC Second Division did not make any specific finding that evidence of
petitioner’s guilt is strong. Its only basis in suspending the proclamation of the
petitioner is the "seriousness of the allegations" in the petition for
disqualification. Pertinent portion of the Order reads:jgc:chanrobles.com.ph

"Without giving due course to the petition . . . the Commission (2nd Division),
pursuant to Section 72 of the Omnibus Election Code in relation to Section 6,
Republic Act No. 6646 . . . and considering the serious allegations in the petition,
hereby directs the Provincial Board of Canvassers of Leyte to suspend the
proclamation of respondent, if winning, until further orders." 77 (emphases
supplied)

We hold that absent any finding that the evidence on the guilt of the petitioner is
strong, the COMELEC Second Division gravely abused its power when it
suspended his proclamation.

(b) The COMELEC Second Division did not give ample opportunity to the
petitioner to adduce evidence in support of his defense in the petition for his
disqualification.

All throughout the proceeding, no hearing was conducted on the petition for
disqualification in gross violation of section 6 of R.A. No. 6646 which specifically
enjoins the COMELEC to "continue with the trial or hearing of the action, inquiry,
or protest." This is also in violation of COMELEC Resolution No. 3402 requiring
the Regional Election Director to complete the hearing and reception of evidence
within ten (10) days from the filing of the Answer, and to submit his findings,
reports, and recommendations within the five (5) days from completion of the
hearing and the reception of evidence.

Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on

May 25, 2001. Although an oral argument on this Motion was held, and the
parties were allowed to file their respective memoranda, the Motion was not
acted upon. Instead, the COMELEC Second Division issued a Resolution on the
petition for disqualification against the petitioner. It was based on the following
evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the
affidavits attached to the Answer; and (c) the respective memoranda of the
parties.

On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed that the evidence of the
parties in the main disqualification case are the same as those in the Motion to
Lift the Order of Suspension. The parties may have other evidence which they
may deem proper to present only on the hearing for the disqualification case.
Also, there may be evidence which are unavailable during the hearing for the
Motion to Lift the Order of Suspension but which may be available during the
hearing for the disqualification case.

In the case at bar, petitioner asserts that he submitted his Memorandum merely
to support his Motion to Lift the Order of Suspension. It was not intended to
answer and refute the disqualification case against him. This submission was
sustained by the COMELEC en banc. Hence, the members of the COMELEC en
banc concluded, upon consideration of the additional affidavits attached in his
Urgent Manifestation, that the evidence to disqualify the petitioner was
insufficient. More specifically, the ponente of the challenged Resolution of the
COMELEC Second Division held:chanrob1es virtua1 1aw 1ibrary

"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
(Second Division) concerns only the incident relating to the Motion to Lift Order
of Suspension of Proclamation. It also appears that the order for the submission
of the parties’ respective memoranda was in lieu of the parties’ oral argument on
the motion. This would explain the fact that Codilla’s Memorandum refers mainly
to the validity of the issuance of the order of suspension of proclamation. There
is, however, no record of any hearing on the urgent motion for the suspension of
proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by
Codilla that the Members of the Commission (Second Division) and other
Members of the Commission en banc had the opportunity to consider Codilla’s
affidavits. This time, Codilla was able to present his side, thus, completing the
presentation of evidentiary documents from both sides." 78 (emphases supplied)

Indeed, careful reading of the petitioner’s Memorandum shows that he confined

his arguments in support of his Motion to Lift the Order of Suspension. In said
Memorandum, petitioner raised the following issues: (a) he was utterly deprived
of procedural due process, and consequently, the order suspending his
proclamation is null and void; (b) the said order of suspension of proclamation
has no legal and factual basis; and (c) evidence of guilt on his part is patently
inexistent for the purpose of directing the suspension of his proclamation. 79 He
urged the COMELEC Second Division to conduct a full dress hearing on the main
disqualification case should the suspension be lifted. 80

(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is
not based on substantial evidence.

The Resolution of the COMELEC Second Division cannot be considered to be

based on substantial evidence. It relied merely on affidavits of witnesses
attached to the petition for disqualification. As stressed, the COMELEC Second
Division gave credence to the affidavits without hearing the affiants. In reversing
said Resolution, the COMELEC en banc correctly observed:jgc:chanrobles.com.ph

"Lacking evidence of Codilla, the Commission (Second Division) made its

decisions based mainly on the allegation of the petitioner and the supporting
affidavits. With this lopsided evidence at hand, the result was predictable. The
Commission (Second Division) had no choice. Codilla was disqualified." 81

Worse, the Resolution of the COMELEC Second Division, even without the
evidence coming from the petitioner, failed to prove the gravamen of the offense
for which he was charged. 82

Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which
reads:jgc:chanrobles.com.ph

"Section 68. Disqualifications. — Any candidate who, in action or protest in which

he is a party is declared by final decision of a competent court guilty of, or found
by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing official
functions, . . . shall be disqualified from continuing as candidate, or if he has
been elected, from holding office"

To be disqualified under the above-quoted provision, the following elements

must be proved: (a) the candidate, personally or through his instructions, must
have given money or other material consideration; and (b) the act of giving
money or other material consideration must be for the purpose of influencing,
inducing, or corrupting the voters or public officials performing electoral
functions.chanrob1es virtua1 1aw 1ibrary

In the case at bar, the petition for disqualification alleged that (a) petitioner
ordered the extraction, hauling and distribution of gravel and sand, and (b) his
purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte
to vote for him. Pertinent portion of the petition reads:jgc:chanrobles.com.ph

" [T]he respondent [herein petitioner], within the election period, took advantage
of his current elective position as City Mayor of Ormoc City by illegally and
unlawfully using during the prohibited period, public equipments and vehicles
belonging to and owned by the City Government of Ormoc City in extracting,
hauling and distributing gravel and sand to the residents and voters of the
Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of
the 4th Congressional District of Leyte, which acts were executed without period,
and clearly for the illicit purpose of unduly inducing or directly corrupting various
voters of Kananga and Matag-ob, within the 4th legislative district of Leyte, for
the precise purpose of inducing and influencing the voters/beneficiaries of
Kananga and Matag-ob, Leyte to cast their votes for said Respondent." 83

The affidavits relied upon by the COMELEC Second Division failed to prove these
allegations. For instance, Cesar A. Laurente merely stated that he saw three (3)
ten-wheeler dump trucks and a Hyundai Payloader with the markings "Ormoc
City Government" extracting and hauling sand and gravel from the riverbed
adjacent to the property owned by the Codilla family. 84

Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated
that they saw white trucks owned by the City Government of Ormoc dumping
gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A
payloader then scattered the sand and gravel unloaded by the white trucks. 85

On the other hand, Danilo D. Maglasang, a temporary employee of the City

Government of Ormoc assigned to check and record the delivery of sand and
gravel for the different barangays in Ormoc, stated as
follows:jgc:chanrobles.com.ph

"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of
the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as
that will be the source of the sand and gravel. I inquired why we had to go to
Kananga but Engr. Padayao said that it’s not a problem as it was Mayor
Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the
family of Mayor Codilla. We were to deliver sand and gravel to whoever requests
from Mayor Codilla." 86

Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against
the petitioner. He alleged that on April 18, 2001, a white truck with the marking
"City Government of Ormoc" came to his lot at Montebello, Kananga, Leyte and
unloaded mixed sand and that the driver of the truck told him to "vote for Codilla
as a (sic) congressman during election." 87 His statement is hearsay. He has no
personal knowledge of the supposed order of the petitioner to distribute gravel
and sand for the purpose of inducing the voters to vote for him. The same could
be said about the affidavits of Randy T. Merin, 88 Alfredo C. De la Peña, 89
Miguel P. Pandac, 90 Paquito Bregeldo, Cristeta Alferez, Glicerio Rios, 91 Romulo
Alkuino, Sr., 92 Abner Casas, 93 Rita Trangia, 94 and Judith Erispe 95 attached
to respondent Locsin’s Memorandum on the Motion to Lift the Suspension of
Proclamation.

Also valueless are the affidavits of other witnesses 96 of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the road
in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area
where the cockfights were to be held. These allegations are extraneous to the
charge in the petition for disqualification. More importantly, these allegations do
not constitute a ground to disqualify the petitioner based on section 68 of the
Omnibus Election Code.

To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code,
viz:jgc:chanrobles.com.ph

"Section 261. Prohibited Acts. — The following shall be guilty of an election

offense:chanrob1es virtual 1aw library

(a) Vote-buying and vote-selling. — (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment,
franchise or grant, public or private, or make or offers to make an expenditure,
directly or indirectly, or cause an expenditure to be made to any person,
association, corporation, entity or community in order to induce anyone or the
public in general, to vote for or against any candidate or withhold his vote in the
election, or to vote for or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a political
party.chanrob1es virtua1 1aw 1ibrary

x x x

(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign. — Any person who uses
under any guise whatsoever directly or indirectly, . . . (3) any equipment,
vehicle, facility, apparatus, or paraphernalia owned by the government or by its
political subdivisions, agencies including government-owned or controlled
corporations, or by the Armed Forces of the Philippines for any election
campaign or for any partisan political activity . . . ."cralaw virtua1aw library

However, the jurisdiction of the COMELEC to disqualify candidates is limited to

those enumerated in section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction. 97 They are criminal and
not administrative in nature. Pursuant to sections 265 and 268 of the Omnibus
Election Code, the power of the COMELEC is confined to the conduct of
preliminary investigation on the alleged election offenses for the purpose of
prosecuting the alleged offenders before the regular courts of justice,
viz:jgc:chanrobles.com.ph

"Section 265. Prosecution. — The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the complainant may file
the complaint with the office of the fiscal or with the Ministry of Justice for
proper investigation and prosecution, if warranted.

x x x

Section 268. Jurisdiction. — The regional trial court shall have the exclusive
original jurisdiction to try and decide any criminal action or proceeding for
violation of this Code, except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdictions of metropolitan or municipal
trial courts. From the decision of the courts, appeal will lie as in other criminal
cases."cralaw virtua1aw library

The COMELEC Second Division grievously erred when it decided the

disqualification case based on section 261(a) and (o), and not on section 68 of
the Omnibus Election Code.

(d) Exclusion of the votes in favor of the petitioner and the proclamation of
respondent Locsin was done with undue haste.

The COMELEC Second Division ordered the exclusion of the votes cast in favor of
the petitioner, and the proclamation of the respondent Locsin, without affording
the petitioner the opportunity to challenge the same. In the morning of June 15,
2001, the Provincial Board of Canvassers convened, and on the strength of the
said Resolution excluding the votes received by the petitioner, certified that
respondent Locsin received the highest number of votes. On this basis,
respondent Locsin was proclaimed.

Records reveal that the petitioner received notice of the Resolution of the
COMELEC Second Division only through his counsel via a facsimile message in
the afternoon of June 15, 2001 98 when everything was already fait accompli.
Undoubtedly, he was not able to contest the issuance of the Certificate of
Canvass and the proclamation of respondent Locsin. This is plain and simple
denial of due process.

The essence of due process is the opportunity to be heard. When a party is

deprived of that basic fairness, any decision by any tribunal in prejudice of his
rights is void.

Second. The votes cast in favor of the petitioner cannot be considered "stray"
and respondent cannot be validly proclaimed on that basis.

The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for
the position of Congressman of the Fourth District of Leyte; and (2) it ordered
the immediate proclamation of the candidate who garnered the highest number
of votes, to the exclusion of the respondent [herein petitioner].

As previously stated, the disqualification of the petitioner is null and void for
being violative of due process and for want of substantial factual basis. Even
assuming, however, that the petitioner was validly disqualified, it is still improper
for the COMELEC Second Division to order the immediate exclusion of votes cast
for the petitioner as stray, and on this basis, proclaim the respondent as having
garnered the next highest number of votes.chanrob1es virtua1 1aw 1ibrary

(a) The order of disqualification is not yet final, hence, the votes cast in favor of
the petitioner cannot be considered "stray."cralaw virtua1aw library

Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate to
be considered "stray." Hence, when a candidate has not yet been disqualified by
final judgment during the election day and was voted for, the votes cast in his
favor cannot be declared stray. To do so would amount to disenfranchising the
electorate in whom sovereignty resides. 99 For in voting for a candidate who has
not been disqualified by final judgment during the election day, the people voted
for him bona fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to whom
they would entrust the exercise of the powers of government. 100

This principle applies with greater force in the case at bar considering that the
petitioner has not been declared by final judgment to be disqualified not only
before but even after the elections. The Resolution of the COMELEC Second
Division disqualifying the petitioner did not attain finality, and hence, could not
be executed, because of the timely filing of a Motion for Reconsideration. Section
13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and
Resolutions reads:jgc:chanrobles.com.ph
"Sec. 13. Finality of Decisions or Resolutions. — (a) In ordinary actions, special
proceedings, provisional remedies and special reliefs, a decision or resolution of
the Commission en banc shall become final and executory after thirty (30) days
from its promulgation.

(b) In Special Actions and Special Cases a decision or resolution of the

Commission en banc shall become final and executory after five (5) days in
Special Actions and Special Cases and after fifteen (15) days in all other
proceedings, following their promulgation.

(c) Unless a motion for reconsideration is seasonably filed, a decision or

resolution of a Division shall become final and executory after the lapse of five
(5) days in Special Actions and Special Cases and after fifteen (15) days in all
other actions or proceedings, following its promulgation." (Emphasis supplied)

In this wise, COMELEC Resolution No. 4116, 101 issued in relation to the finality
of resolutions or decisions in disqualification cases,
provides:jgc:chanrobles.com.ph

"This pertains to the finality of decisions or resolutions of the Commission en

banc or division, particularly on Special Actions (Disqualification Cases).

Special Action cases refer to the following:chanrob1es virtual 1aw library

(a) Petition to deny due course to a certificate of candidacy;

(b) Petition to declare a candidate as a nuisance candidate;

(c) Petition to disqualify a candidate; and

(d) Petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on special action cases (disqualification cases) the
Commission, RESOLVES, as it is hereby RESOLVED, as follows:chanrob1es virtual
1aw library

(1) the decision or resolution of the En Banc of the Commission on

disqualification cases shall become final and executory after five (5) days from its
promulgation unless restrained by the Supreme Court;

(2) the decision or resolution of a Division on disqualification cases shall become

final and executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the day
of the election the resolution has not become final and executory the BEI shall
tally and count the votes for such disqualified candidate;

(4) the decision or resolution of the En Banc on nuisance candidates, particularly

whether the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly

where the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory after the lapse of five (5) days unless a motion
for reconsideration is seasonably filed. In which case, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide
candidate.chanrob1es virtua1 1aw 1ibrary

All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed."cralaw virtua1aw library

Considering the timely filing of a Motion for Reconsideration, the COMELEC

Second Division gravely abused its discretion in ordering the immediate
disqualification of the petitioner and ordering the exclusion of the votes cast in
his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear
that a timely Motion for Reconsideration shall suspend the execution or
implementation of the resolution, viz:chanrob1es virtual 1aw library

Section 2. Period for filing Motion for Reconsideration. — A motion to reconsider

a decision, resolution, order, or ruling of a Division shall be filed within five (5)
days from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling."
(emphases supplied)

(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.

More brazen is the proclamation of respondent Locsin which violates the settled
doctrine that the candidate who obtains the second highest number of votes may
not be proclaimed winner in case the winning candidate is disqualified. 102 In
every election, the people’s choice is the paramount consideration and their
expressed will must at all times be given effect. When the majority speaks and
elects into office a candidate by giving him the highest number of votes cast in
the election for the office, no one can be declared elected in his place. 103 In
Domino v. COMELEC, 104 this Court ruled, viz:jgc:chanrobles.com.ph
"It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him. To simplistically assume that the second placer
would have received that (sic) other votes would be to substitute our judgment
for the mind of the voters. He could not be considered the first among the
qualified candidates because in a field which excludes the qualified candidate,
the conditions would have substantially changed.

x x x

The effect of a decision declaring a person ineligible to hold an office is only that
the election fails entirely, that the wreath of victory cannot be transferred from
the disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration in favor of the person who has obtained a plurality of
votes, and does not entitle the candidate receiving the next highest number of
votes to be declared elected. In such case, the electors have failed to make a
choice and the election is a nullity. To allow the defeated and repudiated
candidate to take over the elective position despite his rejection by the electorate
is to disenfranchise the electorate without any fault on their part and to
undermine the importance and meaning of democracy and the people’s right to
elect officials of their choice." 105

Respondent Locsin proffers a distinction between a disqualification based on

personal circumstances such as age, residence or citizenship and disqualification
based on election offenses. She contends that the election of candidates later
disqualified based on election offenses like those enumerated in section 68 of the
Omnibus Election Code should be invalidated because they violate the very
essence of suffrage and as such, the votes cast in his favor should not be
considered. 106

This contention is without merit. In the recent case of Trinidad v. COMELEC, 107
this Court ruled that the effect of a judgment disqualifying a candidate, after
winning the election, based on personal circumstances or section 68 of the
Omnibus Election Code is the same: the second placer could not take the place
of the disqualified winner.

II

Whether the proclamation of respondent Locsin divested the COMELEC en banc

of jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to
annul her proclamation. She maintains that the COMELEC en banc has been
divested of jurisdiction to review the validity of her proclamation because she has
become a member of the House of Representatives. Thus, she contends that the
proper forum to question her membership to the House of Representatives is the
House of Representative Electoral Tribunal (HRET).

We find no merit in these contentions.

First. The validity of the respondent’s proclamation was a core issue in the
Motion for Reconsideration seasonably filed by the petitioner.

In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:jgc:chanrobles.com.ph

"(1) in disqualifying petitioner on the basis solely of the dubious declaration of

the witnesses for respondent Locsin;

(2) in adopting in toto the allegations of the witnesses for respondent Locsin;
and

(3) in promulgating the resolution in violation of its own rules of procedure and
in directing therein the immediate proclamation of the second highest ‘vote
getter." ‘ (emphases supplied)chanrob1es virtua1 1aw 1ibrary

In support of his third assignment of error, petitioner argued that "the Second
Division’s directive for the immediate proclamation of the second highest vote-
getter is premature considering that the Resolution has yet to become final and
executory." 108 Clearly, the validity of respondent Locsin’s proclamation was
made a central issue in the Motion for Reconsideration seasonably filed by the
petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on
the issue.

The fact that the Petition for Nullity of Proclamation was filed directly with the
COMELEC en banc is of no moment. Even without said Petition, the COMELEC en
banc could still rule on the nullity of respondent’s proclamation because it was
properly raised in the Motion for Reconsideration.

Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc
to review, on motion for reconsideration, decisions or resolutions decided by a
division, viz:jgc:chanrobles.com.ph

"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for reconsideration of
decision shall be decided by the Commission en banc."cralaw virtua1aw library

Pursuant to this Constitutional mandate the COMELEC Rules of Procedure

provides:jgc:chanrobles.com.ph

"Rule 19. Motions for Reconsideration. —

Section 1. Grounds for Motion for Reconsideration. — A motion for

reconsideration may be filed on the grounds that the evidence is insufficient to
justify the decision, order or ruling, or that the said decision, order or ruling is
contrary to law.

Section 2. Period for filing Motion for Reconsideration. — A motion to reconsider

a decision, resolution, order, or ruling of a Division shall be filed within five (5)
days from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling."cralaw
virtua1aw library

Section 3. Form and Contents of Motion for Reconsideration. — The motion shall
be verified and shall point out specifically the findings or conclusions of the
decision, resolution, order or ruling which are not supported by the evidence or
which are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or resolutions.

Section 4. Effect of Motion for Reconsideration on Period to Appeal. — A motion

to reconsider a decision, resolution, order or ruling when not pro forma,
suspends the running of the period to elevate the matter to the Supreme Court.

Section 5. How Motion for Reconsideration Disposed Of. — Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the Presiding Commissioner. The latter shall within two (2) days
thereafter certify the case to the Commission en banc.

Section 6. Duty of the Clerk of Court of the Commission to set Motion for
Hearing. — The Clerk of Court concerned shall calendar the motion for
reconsideration for the resolution of the Commission en banc within ten (10)
days from the certification thereof." (emphases supplied)

Since the petitioner seasonably filed a Motion for Reconsideration of the Order of
the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of the
said Order of the Second Division. The said Order of the Second Division was yet
unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for
the assumption in office of the respondent as the duly elected Representative of
the 4th legislative district of Leyte.

Second. It is the House of Representatives Electoral Tribunal (HRET) which has

no jurisdiction in the instant case.

Respondent contends that having been proclaimed and having taken oath as
representative of the 4th legislative district of Leyte, any question relative to her
election and eligibility should be brought before the HRET pursuant to section 17
of Article VI of the 1987 Constitution. 109

We reject respondent’s contention.

(a) The issue on the validity of the Resolution of the COMELEC Second Division
has not yet been resolved by the COMELEC en banc.

To stress again, at the time of the proclamation of respondent Locsin, the validity
of the Resolution of the COMELEC Second Division was seasonably challenged by
the petitioner in his Motion for Reconsideration. The issue was still within the
exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET
cannot assume jurisdiction over the matter.chanrob1es virtua1 1aw 1ibrary

In Puzon v. Cua, 110 even the HRET ruled that the "doctrinal ruling that once a
proclamation has been made and a candidate-elect has assumed office, it is this
Tribunal that has jurisdiction over an election contest involving members of the
House of Representatives, could not have been immediately applicable due to
the issue regarding the validity of the very COMELEC pronouncements
themselves." This is because the HRET has no jurisdiction to review resolutions
or decisions of the COMELEC, whether issued by a division or en banc.

(b) The instant case does not involve the election and qualification of respondent
Locsin.

Respondent Locsin maintains that the proper recourse of the petitioner is to file a
petition for quo warranto with the HRET.

A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines. 111 In the case at bar, neither the
eligibility of the respondent Locsin nor her loyalty to the Republic of the
Philippines is in question. There is no issue that she was qualified to run, and if
she won, to assume office.

A petition for quo warranto in the HRET is directed against one who has been
duly elected and proclaimed for having obtained the highest number of votes but
whose eligibility is in question at the time of such proclamation. It is evident that
respondent Locsin cannot be the subject of quo warranto proceeding in the
HRET. She lost the elections to the petitioner by a wide margin. Her
proclamation was a patent nullity. Her premature assumption to office as
Representative of the 4th legislative district of Leyte was void from the
beginning. It is the height of absurdity for the respondent, as a loser, to tell
petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding.

III

Whether it is the ministerial duty of the public respondents to recognize

petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative
district of Leyte vice respondent Locsin.

Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may
file a verified petition for mandamus "when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law." 112 For a petition for mandamus to
prosper, it must be shown that the subject of the petition for mandamus is a
ministerial act or duty, and not purely discretionary on the part of the board,
officer or person, and that the petitioner has a well-defined, clear and certain
right to warrant the grant thereof.

The distinction between a ministerial and discretionary act is well delineated. A

purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of official
discretion or judgment." 113

In the case at bar, the administration of oath and the registration of the
petitioner in the Roll of Members of the House of Representatives representing
the 4th legislative district of Leyte is no longer a matter of discretion on the part
of the public respondents. The facts are settled and beyond dispute: petitioner
garnered 71,350 votes as against respondent Locsin who only got 53,447 votes
in the May 14, 2001 elections. The COMELEC Second Division initially ordered the
proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC
en banc set aside the order of its Second Division and ordered the proclamation
of the petitioner. The Decision of the COMELEC en banc has not been challenged
before this Court by respondent Locsin and said Decision has become final and
executory.

In sum, the issue of who is the rightful Representative of the 4th legislative
district of Leyte has been finally settled by the COMELEC en banc, the
constitutional body with jurisdiction on the matter. The rule of law demands that
its Decision be obeyed by all officials of the land. There is no alternative to the
rule of law except the reign of chaos and confusion.

IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the
House of Representatives shall administer the oath of petitioner EUFROCINO M.
CODILLA, SR., as the duly-elected Representative of the 4th legislative district of
Leyte. Public respondent Secretary-General shall likewise register the name of
the petitioner in the Roll of Members of the House of Representatives after he
has taken his oath of office. This decision shall be immediately
executory.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.