LEADING CASE

FIRST DIVISION

[G.R. No. 156658. March 10, 2004]

BONIFACIO ASUFRIN, JR., petitioner, vs. SAN MIGUEL CORPORATION and the COURT OF APPEALS,
respondents.

DECISION

YNARES-SANTIAGO, J.:

Coca Cola Plant, then a department of respondent San Miguel Beer Corporation (SMC), hired petitioner as a
utility/miscellaneous worker in February 1972. On November 1, 1973, he became a regular employee paid on
daily basis as a Forklift Operator. On November 16, 1981, he became a monthly paid employee promoted as
Stock Clerk.

Sometime in 1984, the sales office and operations at the Sum-ag, Bacolod City Sales Office were reorganized.
Several positions were abolished including petitioner’s position as Stock Clerk. After reviewing petitioner’s
qualifications, he was designated warehouse checker at the Sum-ag Sales Office.

On April 1, 1996, respondent SMC implemented a new marketing system known as the “pre-selling scheme” at
the Sum-ag Beer Sales Office. As a consequence, all positions of route sales and warehouse personnel were
declared redundant. Respondent notified the DOLE Director of Region VI that 22 personnel of the Sales
Department of the Negros Operations Center would be retired effective March 31, 1995.

Respondent SMC thereafter wrote a letter to petitioner informing him that, owing to the implementation of the
“pre-selling operations” scheme, all positions of route and warehouse personnel will be declared redundant and
the Sum-ag Sales Office will be closed effective April 30, 1996. Thus, from April 1, 1996 to May 15, 1996,
petitioner reported to respondent’s Personnel Department at the Sta. Fe Brewery, pursuant to a previous
directive.

Thereafter, the employees of Sum-ag sales force were informed that they can avail of respondent’s early
retirement package pursuant to the retrenchment program, while those who will not avail of early retirement
would be redeployed or absorbed at the Brewery or other sales offices. Petitioner opted to remain and
manifested to Acting Personnel Manager Salvador Abadesco his willingness to be assigned to any job,
considering that he had three children in college.

Petitioner was surprised when he was informed by the Acting Personnel Manager that his name was included in
the list of employees who availed of the early retirement package. Petitioner’s request that he be given an
assignment in the company was ignored by the Acting Personnel Manager.

Petitioner thus filed a complaint for illegal dismissal with the NLRC, docketed as RAB Case No. 06-06-10233-
96. On December 27, 1996, the Labor Arbiter dismissed the complaint for lack of merit. Petitioner appealed to
the National Labor Relations Commission (NLRC) which set aside the Labor Arbiter’s decision and ordered
respondent SMC to reinstate petitioner to his former or equivalent position with full backwages.

Respondent filed a petition with the Court of Appeals which reversed the decision of the NLRC and reinstated
the judgment of the Labor Arbiter dismissing the complaint for illegal dismissal. Petitioner’s motion for
reconsideration was denied in a Resolution dated December 11, 2002.
Hence, this petition for review assigning the following errors:

1. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS, WITH DUE RESPECT,

COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PETITIONER WAS
“NOT SINGLED-OUT FOR TERMINATION, AS MANY OTHERS WERE ALSO
ADVERSELY AFFECTED.”

2. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GROSS

MISAPPREHENSION OF FACT WHEN IT AFFIRMED THE FINDING OF THE LABOR
ARBITER THAT THE POSITION OF PETITIONER BECAME REDUNDANT AT THE
SUM-AG SALES OFFICES.

3. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT HELD THAT THE DISMISSAL OF PETITIONER
WAS VALID.

4. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN

DISMISSING THE ENTIRE RELIEFS PRAYED FOR BY THE PETITIONER.

The primordial issue to be resolved is whether or not the dismissal of petitioner is based on a just and authorized
cause.

Factual findings of administrative bodies, being considered experts in their fields, are binding on this Court.
However, this is a general rule which holds true only when established exceptions do not obtain. One of these
exceptive circumstances is when the findings of the Labor Arbiter and the NLRC are conflicting. Considering
that the ruling of the Labor Arbiter was reversed by the NLRC whose judgment was in turn overturned by the
appellate court, it behooves us in the exercise of our equity jurisdiction to determine which findings are more
conformable to the evidentiary facts.

In the case at bar, petitioner was dismissed on the ground of redundancy, one of the authorized causes for
dismissal. In Dole Philippines, Inc. v. NLRC, citing the leading case of Wiltshire File Co., Inc. v. NLRC, we
explained the nature of redundancy as an authorized cause for dismissal thus:

. . . redundancy in an employer’s personnel force necessarily or even ordinarily refers to duplication of work.
That no other person was holding the same position that private respondent held prior to the termination of his
services, does not show that his position had not become redundant. Indeed, in any well-organized business
enterprise, it would be surprising to find duplication of work and two (2) or more people doing the work of one
person. We believe that redundancy, for purposes of the Labor Code, exists where the services of an employee
are in excess of what is reasonably demanded by the actual requirements of the enterprise. Succinctly put, a
position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a
number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular
product line or service activity previously manufactured or undertaken by the enterprise.

The determination that employee’s services are no longer necessary or sustainable and, therefore, properly
terminable is an exercise of business judgment of the employer. The wisdom or soundness of this judgment is
not subject to discretionary review of the Labor Arbiter and the NLRC, provided there is no violation of law and
no showing that it was prompted by an arbitrary or malicious act. In other words, it is not enough for a company
to merely declare that it has become overmanned. It must produce adequate proof that such is the actual
situation to justify the dismissal of the affected employees for redundancy.

Persuasive as the explanation proffered by respondent may be to justify the dismissal of petitioner, a number of
disturbing circumstances, however, leave us unconvinced.
First, of the 23 SMC employees assigned at the Sum-ag Sales Office/Warehouse, 9 accepted the offer of SMC
to avail of the early retirement whose separation benefits was computed at 250% of their regular pay. The rest,
including petitioner, did not accept the offer. Out of the remaining fourteen 14, only petitioner clearly
manifested, through several letters, his desire to be redeployed to the Sta. Fe Brewery or any sales office – and
for any position not necessarily limited to that of a warehouse checker. In short, he was even willing to accept a
demotion just to continue his employment. Meanwhile, other employees who did not even write a letter to SMC
were redeployed to the Sta. Fe Brewery or absorbed by other offices/outlets outside Bacolod City.

Second, petitioner was in the payroll of the Sta. Fe Brewery and assigned to the Materials Section, Logistics
Department, although he was actually posted at the Sum-ag Warehouse. Thus, even assuming that his position
in the Sum-ag Warehouse became redundant, he should have been returned to the Sta. Fe Brewery where he
was actually assigned and where there were vacant positions to accommodate him.

Third, it appears that despite respondent’s allegation that it ceased and closed down its warehousing operations
at the Sum-ag Sales Office, actually it is still used for warehousing activities and as a transit point where buyers
and dealers get their stocks. Indeed, the Sum-ag Office is strategically situated on the southern part of Bacolod
City making it convenient for dealers from the southern towns of Negros Occidental to get their stocks and
deposit their empty bottles in the said warehouse, thereby decongesting the business activities at the Sta. Fe
Brewery.

Fourth, in selecting employees to be dismissed, a fair and reasonable criteria must be used, such as but not
limited to (a) less preferred status, e.g. temporary employee; (b) efficiency; and (c) seniority. In the case at bar,
no criterion whatsoever was adopted by respondent in dismissing petitioner. Furthermore, as correctly
observed by the NLRC, respondent “has not shown how the cessation of operations of the Sum-ag Sales Office
contributed to the ways and means of improving effectiveness of the organization with the end in view of
efficiency and cutting distribution overhead and other related costs. Respondent, thus, clearly resorted to
sweeping generalization[s] in dismissing complainant.” Indeed, petitioner’s predicament may have something
to do with an incident where he incurred the ire of an immediate superior in the Sales Logistics Unit for
exposing certain irregularities committed by the latter.

In the earlier case of San Miguel Corporation v. NLRC, respondent’s reasons for terminating the services of its
employees in the very same Sum-ag Sales Office was rejected, to wit:

Even if private respondents were given the option to retire, be retrenched or dismissed, they were made to
understand that they had no choice but to leave the company. More bluntly stated, they were forced to swallow
the bitter pill of dismissal but afforded a chance to sweeten their separation from employment. They either had
to voluntarily retire, be retrenched with benefits or be dismissed without receiving any benefit at all.

What was the true nature of petitioner’s offer to private respondents? It was in reality a Hobson’s choice. All
that the private respondents were offered was a choice on the means or method of terminating their services but
never as to the status of their employment. In short, they were never asked if they wanted to work for petitioner.

In the case at bar, petitioner is similarly situated. It bears stressing that whether it be by redundancy or
retrenchment or any of the other authorized causes, no employee may be dismissed without observance of the
fundamentals of good faith.

It is not difficult for employers to abolish positions in the guise of a cost-cutting measure and we should not be
easily swayed by such schemes which all too often reduce to near nothing what is left of the rubble of rights of
our exploited workers. Given the nature of petitioner’s job as a Warehouse Checker, it is inconceivable that
respondent could not accommodate his services considering that the warehousing operations at Sum-ag Sales
Office has not shut down.
All told, to sustain the position taken by the appellate court would be to dilute the workingman’s most important
right: his constitutional right to security of tenure. While respondent may have offered a generous compensation
package to those whose services were terminated upon the implementation of the “pre-selling scheme,” we find
such an offer, in the face of the prevailing facts, anathema to the underlying principles which give life to our
labor statutes because it would be tantamount to likening an employer-employee relationship to a salesman and
a purchaser of a commodity. It is an archaic abomination. To quote what has been aptly stated by former
Governor General Leonard Wood in his inaugural message before the 6th Philippine Legislature on October 27,
1922 “labor is neither a chattel nor a commodity, but human and must be dealt with from the standpoint of
human interest.”

As has been said: “We do not treat our workers as merchandise and their right to security of tenure cannot be
valued in precise peso-and-centavo terms. It is a right which cannot be allowed to be devalued by the
purchasing power of employers who are only too willing to bankroll the separation pay of their illegally
dismissed employees to get rid of them.” This right will never be respected by the employer if we merely honor
it with a price tag. The policy of “dismiss now and pay later” favors moneyed employers and is a mockery of
the right of employees to social justice.

WHEREFORE, in view of all the foregoing, the petition is GRANTED. The Decision of the Court of Appeals
in CA-G.R. SP No. 53521 dated April 10, 2002, and the Resolution dated December 11, 2002 denying
petitioner’s Motion for Reconsideration, are SET ASIDE. The decision of the National Labor Relations
Division dated February 20, 1998 is REINSTATED. Accordingly, petitioner’s dismissal is declared illegal, and
respondent is ordered to reinstate him to his former or equivalent position, with full backwages computed from
April 1, 1996 up to his actual reinstatement. Respondent is likewise ordered to pay petitioner the sum
equivalent to ten percent (10%) of his total monetary award as attorney’s fees.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Carpio, and Azcuna, JJ., concur.

Panganiban, J., on official leave.

Record., p. 98.

Id., p. 104.

Rollo, p. 41.

Id., pp. 35-44.

Id., p. 31.

Id., p. 44.

Progressive Development Corporation v. NLRC, 344 SCRA 512 [2000]; PAL v. NLRC, 328 SCRA 273 [2000];
Aklan Electric Cooperative, Inc. v. NLRC, 323 SCRA 258 [2000]; Samson v. NLRC, 330 SCRA 460 [2000].

Article 283, Labor Code.

417 Phil. 428 [2001].

G.R. No. 82249, 7 February 1991, 193 SCRA 665.

Wiltshire File Co., Inc. v. NLRCA, supra.

Golden Thread Knitting Industries, Inc. v. NLRC, 364 Phil. 216 [1999], citing Salonga v. NLRC, G.R. No.
118120, 23 February 1996, 254 SCRA 111; Guerrero v. NLRC, G.R. No. 119842, 30 August 1996, 261 SCRA
301; San Miguel Jeepney Service v. NLRC, G.R. No. 92772, 28 November 1996, 265 SCRA 35.

Record, pp. 324, 326, 501-502.

Id., p. 496.

Id., p. 130.

Id., p. 129.

Capital Wireless, Inc. v. Confesor, 332 Phil. 78 [1996], citing Asiaworld Publishing House, Inc. v. Ople, G.R.
No. 56398, 23 July 1987, 152 SCRA 219.

NLRC Decision, p. 7; Records, p. 41.

Rollo, pp. 39-41.

G.R. No. 107693, 23 July 1998, 293 SCRA 13 [1998].

Hobson’s choice means no choice at all; a choice between accepting what is offered or having nothing at all. It
refers to the practice of Tobias Hobson, an English stable-owner in the 17th century, of offering only the horse
nearest the stable door.

Palmeria v. NLRC, G.R. Nos. 113290-91, 3 August 1995, 247 SCRA 57.

Cited in Dissenting opinion, Puno J., Serrano v. NLRC, 323 SCRA 445, 519 [2000].

Palmeria v. NLRC, supra.

See note 23, p. 523.

PHILIPPINE JURISPRUDENCE - FULL TEXT
The Lawphil Project - Arellano Law Foundation
G.R. No. 120384 January 13, 2004
PEOPLE EXPORT AND FOREIGN LOAN GUARANTEE CORP. vs.
PHILIPPINE INFRASTRUCTURE, INC., ET AL.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 120384 January 13, 2004

PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, petitioner-

appellant,
vs.
PHILIPPINE INFRASTRUCTURES, INC., PHILIPPINE BRITISH ASSURANCE CO.,
INC., THE SOLID GUARANTY, INC., B.F. HOMES, INC., PILAR DEVELOPMENT
CORPORATION and TOMAS F. AGUIRRE, respondents-appellees.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by
Philippine Export and Foreign Loan Guarantee Corporation. Petitioner corporation seeks to set aside
the Decision1 of the Court of Appeals dated August 31, 1994, dismissing CA-G.R. SP No. 31483;
the Resolution dated May 18, 1995 denying petitioner’s motion for reconsideration; the Order of the
Regional Trial Court (Branch 29) of Manila, dated December 7, 1992, dismissing Civil Case No. 86-
381692 and the Order dated April 12, 1993 denying the motion for reconsideration of said dismissal
order.

The antecedent facts are as follows:

The case was commenced at the Regional Trial Court on October 30, 1986, upon the filing
by herein petitioner of a complaint for collection of sum of money against herein respondents
Philippine Infrastructures, Inc. (PII for brevity), Philippine British Assurance Co., Inc.
(PBAC), The Solid Guaranty, Inc. (Solid), B.F. Homes, Inc. (BF Homes), Pilar Development
Corporation (PDC) and Tomas B. Aguirre (Aguirre). The complaint alleges that: petitioner
issued five separate Letters of Guarantee in favor of the Philippine National Bank (PNB) as
security for various credit accommodations extended by PNB to respondent PII; respondents
PII, BF Homes, PDC and Aguirre executed a Deed of Undertaking binding themselves,
jointly and severally, to pay or reimburse petitioner upon demand such amount of money or
to repair the damages, losses or penalties which petitioner may pay or suffer on account of its
guarantees; as security for prompt payment by respondent PII, the latter submitted to
petitioner, surety and performance bonds issued by respondents PBAC and Solid; on April
24, 1985, the PNB called on the guarantees of petitioner, and so, the latter demanded from
respondent PII the immediate settlement of P20,959, 529.36, representing the aggregate
amount of the guarantees of petitioner called by PNB and the further sum of P351,517.57
 representing various fees and charges; PII refused to settle said obligations; petitioner
likewise demanded payment from respondents Solid and PBAC but they also refused to pay
petitioner; and because of the unjustified refusal of respondents to comply with their
respective obligations, petitioner was constrained to secure the services of counsel and incur
expenses for the purpose of prosecuting its valid claims against the respondents. It is prayed
in the complaint that judgment be rendered ordering respondents PII, BF Homes, PDC and
Aguirre to pay petitioner the amount of P21,311,046.93 plus interest and penalty charges
thereon, ordering respondents Solid and PBAC to pay P5,758,000.00 and P9,596,000.00,
respectively, under their surety and/or performance bonds and ordering respondents to pay
petitioner the sums of P2,000,000.00 as attorney’s fees and expenses of litigation and
P50,000.00 as exemplary damages.

Respondent BF Homes filed a Motion to Dismiss3 on the ground that it is undergoing rehabilitation
receivership in the Securities and Exchange Commission (SEC) and pursuant to P.D. 902-A, the trial
court has no jurisdiction to try the case. Respondent PII also filed a Motion to Dismiss4 on the
ground that the complaint states no cause of action since it does not allege that petitioner has
suffered any damage, loss or penalty because of the guarantees petitioner had extended for and on
behalf of respondent PII.

The other respondents filed their respective responsive pleadings.

On June 10, 1987, Judge Roberto M. Lagman issued an Order5 suspending the case only as against
respondent BF Homes and denying respondent PII’s motion to dismiss. Thereafter, hearing on the
merits ensued. On January 21, 1992, petitioner presented Rosauro Termulo, the treasury department
manager of petitioner, who testified that the amount of P19,035,256.57 was paid on July 28, 1990 by
petitioner to the PNB through the account of the National Treasury to cover the principal loan and
interests, as guaranteed by petitioner; and, Exhibit "LL," a debit memo issued by the PNB, showing
that the latter was paid by the National Treasurer in behalf of petitioner corporation. Consequently,
on February 19, 1992, petitioner filed a Motion to Amend Complaint to Conform to Evidence6
pursuant to Section 5, Rule 10 of the Revised Rules of Court, seeking to amend Paragraph 17 and
the pertinent portion of the prayer in the complaint, to read as follows:

17. Because of the unjustified refusal of the defendants to comply with their respective
obligations, the plaintiff as guarantor has been constrained to pay the Philippine National
Bank thru the account of the National Treasury the amount of Nineteen Million Thirty-five
Thousand Two Hundred Fifty-six and 57/100 (P19,035,256.57) on July 28, 1990
representing payment of principal loan of P12,790,094.83 and interest of P6,245,111.54 due
March 16, 1987 on the Philippine Infrastructure, Inc./Philguaranty loan under the PNB
Expanded Loan Collection Program; and which amount was deducted from the equity share
of the National Government in Philguarantee. In view of defendants unwarranted failure and
refusal to settle their respective accountabilities plaintiff was likewise constrained to secure
the services of counsel and incur expenses in the process of prosecuting its just and valid
claims against the defendants; accordingly, the defendants should be held liable, jointly and
severally, to pay the plaintiff attorney’s fees and expenses of litigation in the amount of
P2,000,000.00 or about ten (10%) percent of the guaranteed obligations.

...

PRAYER
 ...

(a) Ordering defendant PII, BF Homes, PILAR and AGUIRRE to pay plaintiff, jointly and
severally, the amount of P19,035,256.57 plus P351,517.57 extension guarantee fees and
amendment fees, plus interests and penalty charges thereon;

. . .7

Acting on the motion to amend, the trial court, at that time presided by Judge Joselito J. Dela Rosa,
issued the assailed Order dated December 7, 1992,8 dismissing the case without prejudice on the
ground of failure of the complaint to state a cause of action, thus in effect, reversing the Order dated
June 10, 1987 issued by Judge Lagman five years earlier. Petitioner’s motion for reconsideration of
the order of dismissal was denied by Judge de la Rosa per his Order9 dated April 12, 1993.

On June 9, 1993, a petition for review on certiorari was filed by petitioner against the Regional Trial
Court with this Court. On June 23, 1993, the Court issued a Resolution10 which reads:

Considering that under Section 9 of Batas Pambansa Blg. 129, the Intermediate Appellate Court
(Court of Appeals) now exercises exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions, the Court Resolved to REFER this case to the Court of Appeals, for
disposition.

The Court of Appeals re-docketed the petition as CA-G.R. SP No. 31483.

On August 31, 1994, the Court of Appeals promulgated the assailed Decision, dismissing the
petition on the following grounds:

FIRSTLY, an order of dismissal, whether right or wrong, is a final order. If it is erroneous,

the remedy of the aggrieved party is appeal. Hence, the same cannot be assailed by certiorari,
as in this case (Marahay vs. Malicor, 181 SCRA 811). Considering the Supreme Court
Circular No. 2-90, paragraph 4 regarding an appeal by wrong mode, the order of dismissal in
this case was therefore correctly issued by the respondent court a quo.

SECONDLY, the real purpose of petitioner herein in asking the respondent court a quo for
leave to amend its complaint was not ostensibly to make the complaint conform to the
evidence presented, as petitioner alleges, but to introduce a cause of action then non-existing
when the complaint was filed. The ruling in the leading case of Surigao Mine Exploration
Co. vs. Harris (69 Phil. 113) does not allow such amendment.

Hence, the trial court was correct in denying the amendment and instead it dismissed the
case.

THIRDLY, in the case at bar, the motion to dismiss was first denied but there is nothing in
the Rules of Court which prohibits the court from later on reversing itself and granting the
motion to dismiss.

This ruling is supported by earlier decisions of the Supreme Court in Lucas vs. Mariano, et al (L-
29157, April 27, 1972) and Vda. De Haberer vs. Martinez, et al. (L-39386, Jan. 29, 1975) where the
trial court dismissed the complaint, then set it aside and finally again ordered it dismissed.11
On May 19, 1995, the appellate court issued a Resolution12 denying petitioner’s motion for
reconsideration.

Hence, on June 14, 1995, petitioner filed the present petition for review on certiorari, claiming that
the Court of Appeals committed the following errors:

I.

THE HONORABLE COURT OF APPEALS’ AFFIRMATION OF THE REGIONAL

TRIAL COURT JUDGE’S ORDER DISMISSING CIVIL CASE NO. 86-38169 MOTU
PROPIO ON THE PREMISE THAT HIS PREDECESSOR JUDGE WAS IN ERROR IN
NOT GRANTING THE MOTION TO DISMISS FILED YEARS BACK, ALLEGEDLY
BECAUSE "THERE WAS NO CAUSE OF ACTION AT THE TIME OF THE FILING OF
THE COMPLAINT" IS CONTRARY TO LAW AND JURISPRUDENCE.

II.

THE HONORABLE COURT OF APPEALS’ AFFIRMATION OF THE REGIONAL

TRIAL COURT JUDGE’S ORDER IN NOT ALLOWING THE AMENDMENT OF THE
COMPLAINT TO CONFORM TO THE EVIDENCE PRESENTED WITHOUT
OBJECTIONS, IS CONTRARY TO LAW AND JURISPRUDENCE.

III.

THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE REAL

PURPOSE OF PETITIONER-APPELLANT IN ASKING FOR LEAVE TO AMEND ITS
COMPLAINT WAS NOT TO MAKE THE COMPLAINT CONFORM TO THE
EVIDENCE PRESENTED BUT TO INTRODUCE A CAUSE OF ACTION THEN NON-
EXISTING WHEN THE COMPLAINT WAS FILED.

IV.

THE HONORABLE COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO

PETITIONER-APPELLANT’S PETITION FOR REVIEW.13

Respondents, on the other hand, asseverate that the petitioner went to the Court of Appeals on a
wrong remedy as the proper remedy was for it to appeal from the order of dismissal and not to file a
petition for review on certiorari; and that the Court of Appeals committed no error in sustaining the
lower court as the original complaint below failed to state a cause of action and the real purpose of
the amendment was to introduce a subsequently acquired cause of action.

The Court will first resolve the question whether an order dismissing a petition without prejudice
should be appealed by way of ordinary appeal, petition for review on certiorari or a petition for
certiorari. Indeed, prior to the 1997 Rules of Civil Procedure, an order dismissing an action may be
appealed by ordinary appeal as what happened in Lucas vs. Mariano14 and Vda. de Haberer vs.
Martinez,15 cited by the Court of Appeals in its assailed decision. However, in the advent of the 1997
Rules of Civil Procedure, Section 1(h), Rule 41 thereof expressly provides that no appeal may be
taken from an order dismissing an action without prejudice. It may be subject of a special civil
action for certiorari under Rule 65 of the Rules of Court, as amended by the said 1997 Rules of Civil
Procedure. Considering that the assailed decision of the Court of Appeals was promulgated in 1994,
respondent appellate court could not have committed any grave abuse of discretion in dismissing
CA-G.R. SP No. 31483.

Nevertheless, in the higher interest of substantial justice and pursuant to the hornbook doctrine that
procedural laws may be applied retroactively,16 the Court gives due course to the present petition
and will resolve the issue whether the Court of Appeals erred in affirming the lower court’s order
dismissing the complaint on the ground that petitioner failed to state a cause of action for not
alleging loss or actual payment made by it to PNB under its guarantees.

The trial court issued an order of dismissal in stead of granting a motion to amend complaint to
conform to evidence, pursuant to Section 5, Rule 10 of the Revised Rules of Court, to wit:

Sec. 5. Amendment to conform to or authorize presentation of evidence. – When issues not

raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects, as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment, but failure to
amend does not affect the result of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so freely when presentation of the merits of the
action will be subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action or defense upon
the merits. The court may grant a continuance to enable the objecting party to meet such
evidence.

It should be stressed that amendment was sought after petitioner had already presented evidence,
more specifically, the testimony of petitioner’s Treasury Department Manager and a debit memo
from the PNB (Exhibit "LL") proving that petitioner had paid the PNB in the amount of
P19,035,256.57 pursuant to the guarantees it accorded to respondent PII.

Petitioner avers that respondents did not raise any objection when it presented evidence to prove
payment to PNB. Hence, as provided for in Section 5, Rule 10 of the Revised Rules of Court, when
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects, as if they had been raised in the pleadings. A scrutiny of the pleadings filed by
respondents reveal that none of them denied petitioner’s claim that said evidence was presented
before the trial court without objections having been raised by respondents. None of them claimed
that they raised any objections at the time when petitioner presented its evidence to prove its
payment to PNB. Respondents Pilar and Aguirre admitted the presentation of the said evidence.

Respondents contend that since they had already alleged the failure of the complaint to state a cause
of action as an affirmative defense in their answer, there was no further need for them to raise an
objection at the time the evidence was introduced. This is not plausible. In Bernardo, Sr. vs. Court of
Appeals,17 respondents therein also put up in their answer the affirmative defense of failure of the
complaint to state a cause of action and the parties went on to present their respective evidence. The
Court did not consider the allegation of this affirmative defense in the answer as an objection to
evidence presented by the plaintiffs. Furthermore, the Court ruled that:

The presentation of the contrariant evidence for and against imputations undoubtedly cured,
clarified or expanded, as the case may be, whatever defects in the pleadings or vagueness in
the issues there might have been in the amended complaint. . . .

It is settled that even if the complaint be defective, but the parties go to trial thereon, and the
 plaintiff, without objection, introduces sufficient evidence to constitute the particular cause
of action which it intended to allege in the original complaint, and the defendant voluntarily
produces witnesses to meet the cause of action thus established, an issue is joined as fully
and as effectively as if it had been previously joined by the most perfect pleadings. Likewise,
when issues not raised by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings.18

Evidently, herein respondents’ failure to object to the evidence at the time it is presented in court is
fatal to their cause inasmuch as whatever perceived defect the complaint had was cured by the
introduction of petitioner’s evidence proving actual loss sustained by petitioner due to payment
made by it to PNB.

Thus, the contention of respondents that the amendment would introduce a subsequently acquired
cause of action as there was none at the time the original complaint was filed, is untenable.

Furthermore, petitioner’s cause of action against respondents stemmed from the obligation of
respondents PII, BF Homes, PDC and Aguirre under their Deed of Undertaking that was secured by
the surety and performance bonds issued by respondents PBAC and Solid. Said Deed of
Undertaking, which was annexed to and made an integral part of the complaint, provides as follows:

...

NOW, THEREFORE, for and in consideration of the foregoing premises, the OBLIGOR
[PII] and CO-OBLIGORS [BF HOMES, PILAR, AGUIRRE] hereby promise, undertake and
bind themselves to keep the OBLIGEE [PETITIONER] free and harmless from any damage
or liability which may arise out of the issuance of its guarantee referred to in the first
"whereas" clause. By these presents, the OBLIGOR and CO-OBLIGORS further bind
themselves, jointly and severally, to pay or reimburse on demand, such amount of money, or
repair the damages, losses or penalties which the OBLIGEE may pay or suffer on account of
the aforementioned guarantees. The OBLIGOR and CO-OBLIGORS further undertake to
comply with and be bound by the aforementioned terms and conditions enumerated in the
attached Annex "A" and to perform such other acts and deeds which the OBLIGEE may
impose for the implementation of the aforementioned guarantees.

It is a condition of this instrument that failure of the OBLIGOR and CO-OBLIGORS to

comply with this undertaking and to make good the performance of the other obligations
herein undertaken and/or promised, shall be sufficient cause for the OBLIGEE to consider
such failure as an event of default which shall give to the OBLIGEE the right to take such
action against the OBLIGOR and/or CO-OBLIGORS for the protection of the OBLIGEE’s
interests.

. . .19

A reading of the foregoing provisions of the contract, specially the phrase "the OBLIGOR and CO-
OBLIGORS hereby promise, undertake and bind themselves to keep the OBLIGEE free and
harmless from any damage or liability which may arise out of the issuance of its guarantee
referred to in the first ‘whereas’ clause," shows that the Deed of Undertaking is actually an
indemnity against liability. In Cochingyan, Jr. vs. R & B Surety and Insurance Co., Inc.,20 the Court
held thus:

The petitioners lose sight of the fact that the Indemnity Agreements are contracts of
 indemnification not only against actual loss but against liability as well. While in a
contract of indemnity against loss an indemnitor will not be liable until the person to be
indemnified makes payment or sustains loss, in a contract of indemnity against liability,
as in this case, the indemnitor’s liability arises as soon as the liability of the person to be
indemnified has arisen without regard to whether or not he has suffered actual loss.

...

(3) Petitioners are indemnitors of R & B Surety against both payments to and liability for
payments to the PNB. The present suit is therefore not premature despite the fact that the
PNB has not instituted any action against R & B Surety for the collection of its matured
obligation under the Surety Bond.21 [Emphasis supplied]

In the present petition, petitioner had become liable to pay the amounts covered by said guarantees
when, as the original complaint alleges, the PNB called upon said guarantees. Respondents’
obligation under the Deed of Undertaking to keep petitioner free and harmless from any damage or
liability then became operative as soon as the liability of petitioner arose and there was no need for
petitioner to first sustain actual loss before it could have a cause of action against respondents. The
mere inclusion in petitioner’s original complaint of the allegation that the PNB had already called on
the guarantees of petitioner is sufficient to constitute a cause of action against respondents. Clearly
therefore, the original complaint, by itself, stated a valid cause of action.

Verily, it was patently erroneous on the part of the trial court not to have allowed the amendments as
to make the complaint conform to petitioner’s evidence that was presented without any objection
from respondents. The trial court likewise patently acted with grave abuse of discretion or in excess
of its jurisdiction amounting to lack of jurisdiction when, acting on a mere motion to amend the
complaint, it erroneously dismissed the complaint on the ground of failure to state a cause of action.
Consequently, the Court of Appeals committed a reversible error in sustaining the trial court.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated August 31,
1994 and its Resolution dated May 18, 1995 are REVERSED and SET ASIDE; and the Orders of
the Regional Trial Court (Branch 29), Manila, dated December 7, 1992 and April 12, 1993 are
NULL and VOID and SET ASIDE.

Let the original records of Civil Case No. 86-38169 be REMANDED to the Regional Trial Court
(Branch 29), Manila, for continuation of the trial on the merits. The presiding judge is directed to
proceed with immediate dispatch upon receipt of the records of the case.

Treble costs against private respondents.

SO ORDERED.

Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.

Footnotes

1
Penned by Justice Jainal D. Rasul, with Justices Arturo B. Buena and Ramon Mabutas, Jr.
concurring.
2
Entitled "Philippine Export and Foreign Loan Guarantee Corporation vs. Philippine
Infrastructures, Inc., Philippine British Assurance Co., Inc., The Solid Guaranty, Inc., B.F.
Homes, Inc., Pilar Development Corporation and Tomas B. Aguirre"
3
Records, pp. 123-125.
4
Records, pp. 172-174.
5
Records, pp. 227-229.
6
Records, p. 605.
7
Records, pp. 606-607
8
Rollo, pp. 38-39.
9
Rollo, p. 41.
10
CA Rollo, p. 57.
11
CA Rollo pp. 106-107.
12
CA Rollo, p. 134.
13
Rollo, p. 13.
14
44 SCRA 501 (1972).
15
62 SCRA 162 (1975).
16
Pfizer, Inc. vs. Galan, 358 SCRA 240, 246 (2001).
17
263 SCRA 660 [1996].
18
Id. at pp. 673-674.
19
Records, p. 25.
20
151 SCRA 339 [1987].
21
Id. at pp. 353-354.
EN BANC
LOIDA NICOLAS-LEWIS, GREGORIO G.R. No. 162759
B. MACABENTA, ALEJANDRO A.
ESCLAMADO, ARMANDO B. HEREDIA,
REUBEN S. SEGURITAN, ERIC
LACHICA FURBEYRE, TERESITA A. Present:
CRUZ, JOSEFINA OPENA
DISTERHOFT, MERCEDES V. OPENA,
CORNELIO R. NATIVIDAD, EVELYN D. PANGANIBAN, C.J.,
NATIVIDAD,
PUNO,
Petitioners,
QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,
- versus -
CARPIO-MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA, and
COMMISSION ON ELECTIONS,
VELASCO, JR., JJ.
Respondent.

Promulgated:

August 4, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

GARCIA, J.:

In this petition for certiorari and mandamus, petitioners, referring to themselves as

"duals" or dual citizens, pray that they and others who retained or reacquired Philippine
citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition
Act of 2003, be allowed to avail themselves of the mechanism provided under the Overseas
Absentee Voting Act of 2003 (R.A. 9189) and that the Commission on Elections (COMELEC)
accordingly be ordered to allow them to vote and register as absentee voters under the aegis of
R.A. 9189.

The facts:

Petitioners are successful applicants for recognition of Philippine citizenship under R.A.
9225 which accords to such applicants the right of suffrage, among others. Long before the May
2004 national and local elections, petitioners sought registration and certification as
"overseas absentee voter" only to be advised by the Philippine Embassy in the United States
that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003,
they have yet no right to vote in such elections owing to their lack of the one-year residence
requirement prescribed by the Constitution. The same letter, however, urged the different
Philippine posts abroad not to discontinue their campaign for voter’s registration, as the
residence restriction adverted to would contextually affect merely certain individuals who
would likely be eligible to vote in future elections.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in
Macalintal vs. COMELEC on the residency requirement, the COMELEC wrote in response:

Although R.A. 9225 enjoys the presumption of constitutionality …, it is the

Commission's position that those who have availed of the law cannot exercise the right of
suffrage given under the OAVL for the reason that the OAVL was not enacted for them. Hence,
as Filipinos who have merely re-acquired their citizenship on 18 September 2003 at the earliest,
and as law and jurisprudence now stand, they are considered regular voters who have to meet the
requirements of residency, among others under Section 1, Article 5 of the Constitution.

Faced with the prospect of not being able to vote in the May 2004 elections owing to the
COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner
Nicolas-Lewis et al., filed on April 1, 2004 this petition for certiorari and mandamus.

A little over a week before the May 10, 2004 elections, or on April 30, 2004, the
COMELEC filed a Comment, therein praying for the denial of the petition. As may be
expected, petitioners were not able to register let alone vote in said elections.

On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in
Lieu of Comment), therein stating that “all qualified overseas Filipinos, including dual citizens
who care to exercise the right of suffrage, may do so” , observing, however, that the conclusion
of the 2004 elections had rendered the petition moot and academic.

The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the
petition moot and academic, but insofar only as petitioners’ participation in such political
exercise is concerned. The broader and transcendental issue tendered or subsumed in the
petition, i.e., the propriety of allowing “duals” to participate and vote as absentee voter in future
elections, however, remains unresolved.

Observing the petitioners’ and the COMELEC’s respective formulations of the issues,
the same may be reduced into the question of whether or not petitioners and others who might
have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may
vote as absentee voter under R.A. 9189.

The Court resolves the poser in the affirmative, and thereby accords merit to the
petition.

In esse, this case is all about suffrage. A quick look at the governing provisions on the
right of suffrage is, therefore, indicated.

We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading
as follows:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election. xxx.

SEC 2. The Congress shall provide … a system for absentee voting by qualified Filipinos
abroad.

In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general

eligibility factor for the right to vote. On the other hand, Section 2 authorizes Congress to
devise a system wherein an absentee may vote, implying that a non-resident may, as an
exception to the residency prescription in the preceding section, be allowed to vote.

In response to its above mandate, Congress enacted R.A. 9189 - the OAVL - identifying
in its Section 4 who can vote under it and in the following section who cannot, as follows:

Section 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives.
Section 5. Disqualifications. – The following shall be disqualified from voting under this
Act:

(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

(b) Those who have expressly renounced their Philippine citizenship and who have
pledged allegiance to a foreign country;

(c) Those who have … [been] convicted in a final judgment by a court or tribunal of
an offense punishable by imprisonment of not less than one (1) year, including those who have
… been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, ….;

(d) An immigrant or a permanent resident who is recognized as such in the host

country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be the cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent disqualification to
vote in absentia.

(e) Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority …. (Words in bracket added.)

Notably, Section 5 lists those who cannot avail themselves of the absentee voting
mechanism. However, Section 5(d) of the enumeration respecting Filipino immigrants and
permanent residents in another country opens an exception and qualifies the disqualification
rule. Section 5(d) would, however, face a constitutional challenge on the ground that, as
narrated in Macalintal, it -
 … violates Section 1, Article V of the 1987 Constitution which requires that the voter
must be a resident in the Philippines for at least one year and in the place where he proposes to
vote for at least six months immediately preceding an election. [The challenger] cites … Caasi
vs. Court of Appeals to support his claim [where] the Court held that a “green card” holder
immigrant to the [US] is deemed to have abandoned his domicile and residence in the
Philippines.

[The challenger] further argues that Section 1, Article V of the Constitution does not
allow provisional registration or a promise by a voter to perform a condition to be qualified to
vote in a political exercise; that the legislature should not be allowed to circumvent the
requirement of the Constitution on the right of suffrage by providing a condition thereon which
in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to
vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of the
Constitution. (Words in bracket added.)

As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189
mainly on the strength of the following premises:

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an
immigrant or permanent resident who is “recognized as such in the host country” because
immigration or permanent residence in another country implies renunciation of one's residence in
his country of origin. However, same Section allows an immigrant and permanent resident
abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not
abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of
Article V that “all citizens of the Philippines not otherwise disqualified by law” must be entitled
to exercise the right of suffrage and, that Congress must establish a system for absentee voting;
for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the
framers of the Constitution to mandate Congress to establish a system for absentee voting.

Contrary to the claim of [the challenger], the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit
under Section 5(d) violates the Constitution that proscribes “provisional registration or a promise
by a voter to perform a condition to be qualified to vote in a political exercise.”

Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress
enacted R.A. 9225 the relevant portion of which reads:
 SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State that all
Philippine citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship. – Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:

xxx xxx xxx

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid
oath.

SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or

adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of the Philippines.

SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:

(1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No. 9189,
otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing
laws;

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship …;

3) xxx xxx xxx.

(4) xxx xxx xxx;

(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the
country of which they are naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned

officers in the armed forces of the country which they are naturalized citizens.
 After what appears to be a successful application for recognition of Philippine citizenship
under R.A. 9189, petitioners now invoke their right to enjoy … political rights, specifically the
right of suffrage, pursuant to Section 5 thereof.

Opposing the petitioners’ bid, however, respondent COMELEC invites attention to the
same Section 5 (1) providing that “duals” can enjoy their right to vote, as an adjunct to political
rights, only if they meet the requirements of Section 1, Article V of the Constitution, R.A. 9189
and other existing laws. Capitalizing on what at first blush is the clashing provisions of the
aforecited provision of the Constitution, which, to repeat, requires residency in the Philippines
for a certain period, and R.A. 9189 which grants a Filipino non-resident absentee voting rights,
COMELEC argues:

4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE

PHILIPPINES

4.01. The inclusion of such additional and specific requirements in RA 9225 is logical.
The ‘duals,’ upon renouncement of their Filipino citizenship and acquisition of
foreign citizenship, have practically and legally abandoned their domicile and
severed their legal ties to the homeland as a consequence. Having subsequently
acquired a second citizenship (i.e., Filipino) then, ‘duals’ must, for purposes of
voting, first of all, decisively and definitely establish their domicile through
positive acts;

The Court disagrees.

As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring
"duals" to actually establish residence and physically stay in the Philippines first before they
can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that
“duals” are most likely non-residents, grants under its Section 5(1) the same right of suffrage as
that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189
aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the
residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to
vote. Thus, wrote the Court in Macalintal:

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

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

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

requirement found in Section 1 of the same Article was in fact the subject of debate when Senate
Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation
to the constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution ….
xxx xxx xxx
Now, Mr. President, the Constitution says, “who shall have resided in the
Philippines.” They are permanent immigrants. They have changed residence so
they are barred under the Constitution. This is why I asked whether this
committee amendment which in fact does not alter the original text of the bill will
have any effect on this?

Senator Angara. Good question, Mr. President. And this has been asked
in various fora. This is in compliance with the Constitution. One, the
interpretation here of “residence” is synonymous with “domicile.”

As the gentleman and I know, Mr. President, “domicile” is the intent to

return to one's home. And the fact that a Filipino may have been physically
absent from the Philippines and may be physically a resident of the United
States, for example, but has a clear intent to return to the Philippines, will make
him qualified as a resident of the Philippines under this law.

This is consistent, Mr. President, with the constitutional mandate that we –

that Congress – must provide a franchise to overseas Filipinos.
 If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can provide for offshore
voting to our offshore kababayan, Mr. President.

Senator Arroyo. Mr. President, when the Constitution says, in Section 2

of Article V, it reads: “The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.”

The key to this whole exercise, Mr. President, is “qualified.” In other

words, anything that we may do or say in granting our compatriots abroad must
be anchored on the proposition that they are qualified. Absent the
qualification, they cannot vote. And “residents” (sic) is a qualification.

xxx xxx xxx

Look at what the Constitution says – “In the place wherein they propose to
vote for at least six months immediately preceding the election.”
Mr. President, all of us here have run (sic) for office.

I live in Makati. My neighbor is Pateros …. We are separated only by a

creek. But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. ….
As I have said, if a voter in Makati would want to vote in Pateros, yes, he
may do so. But he must do so, make the transfer six months before the election,
otherwise, he is not qualified to vote.

xxx xxx xxx

Senator Angara. It is a good point to raise, Mr. President. But it is a point

already well-debated even in the constitutional commission of 1986. And the
reason Section 2 of Article V was placed immediately after the six-month/one-
year residency requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.

The second reason, Mr. President, is that under our jurisprudence … –

“residency” has been interpreted as synonymous with “domicile.”

But the third more practical reason, … is, if we follow the

interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is
exactly the whole point of this exercise – to enfranchise them and empower
them to vote. (Emphasis and words in bracket added; citations omitted)
 Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship
Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting.
According to the poll body:

1.05 With the passage of RA 9225 the scope of overseas absentee voting has been
consequently expanded so as to include Filipinos who are also citizens of other countries,
subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225;

Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the
scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may
now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee
voters. R.A. 9189 defines the terms adverted to in the following wise:

“Absentee Voting” refers to the process by which qualified citizens of the Philippines
abroad exercise their right to vote;

“Overseas Absentee Voter” refers to a citizen of the Philippines who is qualified to

register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of
elections;

While perhaps not determinative of the issue tendered herein, we note that the
expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of
"duals". This may be deduced from the inclusion of the provision on derivative citizenship in
R.A. 9225 which reads:

SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or

adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizens of the Philippines.
 It is very likely that a considerable number of those unmarried children below
eighteen (18) years of age had never set foot in the Philippines. Now then, if the next
generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political
rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners
and other present day "duals," provided they meet the requirements under Section 1, Article V
of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas
absentee voter. Congress could not have plausibly intended such absurd situation.

WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so
holds that those who retain or re-acquire Philippine citizenship under Republic Act No. 9225,
the Citizenship Retention and Re-Acquisition Act of 2003, may exercise the right to vote under
the system of absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act of
2003.

SO ORDERED.

CANCIO C. GARCIA

Associate Justice

WE CONCUR:
 ARTEMIO V. PANGANIBAN

Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

ssociate Justice Associate Justice

ONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

ssociate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

ssociate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

 Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

ssociate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN

Chief Justice

Also known as Overseas Absentee Voting Law or “OAVL” for short.

Signed by Florentino A. Tuason Jr., as then COMELEC Committee Chairman on Overseas Absentee
Voting ; Rollo, p. 33.

G.R. No. 157013, July 10, 2003, 405 SCRA 614.

Concluding paragraph of letter dated November 4, 2003 of the Comelec to the Balane Tamase
Alampay Law Office (counsel for petitioners); Rollo, pp. 42-51.

The other petitioners executed deeds of Special Power of Attorney (SPA), therein authorizing Loida
Nicolas Lewis to file the Petition; Rollo, pp. 92-112.

Rollo, pp. 53-67.

Rollo, pp. 77-78.

Published in the February 16, 2003 issues of Today and Daily Tribune.

G.R. No. 88831, 8 November 1990, 191 SCRA 229.

Macalintal v. COMELEC, supra.

Id. at 645.

Constitution, Article V, Section 1: … … … at least one year and in the place wherein they propose to
vote for at least six months immediately preceding the election ….
COMELEC's Memorandum, p. 6, appended to the Rollo.

Macalintal v. COMELEC, supra, at pp. 641-644.

COMELEC's Memorandum, p. 4, appended to the Rollo