Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 120295 June 28, 1996

JUAN G. FRIVALDO, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

G.R. No. 123755 June 28, 1996

RAUL R. LEE, petitioner,

vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p

The ultimate question posed before this Court in these twin cases is: Who should be declared the
rightful governor of Sorsogon -

(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his
alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru
repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in
favor of Frivaldo should be considered void; that the electorate should be deemed to have
intentionally thrown away their ballots; and that legally, he secured the most number of valid votes;
or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the
position of governor, but who according to prevailing jurisprudence should take over the said post
inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has
occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice
over pure legalisms.

G.R. No. 123755

This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and
preliminary injunction to review and annul a Resolution of the respondent Commission on Elections
(Comelec), First Division, 1 promulgated on December 19, 1995 2 and another Resolution of the
Comelec en banc promulgated February 23, 1996 3 denying petitioner's motion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the
office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R.
Lee, another candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a
citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second
Division of the Comelec promulgated a Resolution 5granting the petition with the following disposition 6:

WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the Philippines. Accordingly, respondent's
certificate of candidacy is canceled.

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995
elections. So, his candidacy continued and he was voted for during the elections held on said date.
On May 11, 1995, the Comelec en banc 7 affirmed the aforementioned Resolution of the Second
Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate
of Votes 8dated May 27, 1995 was issued showing the following votes obtained by the candidates for the
position of Governor of Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

Raul R. Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his
proclamation as the duly-elected Governor of Sorsogon.

In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the
Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose
of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on
June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of
Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317,
praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He
alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the
Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee
- should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution 13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled
to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of
votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES

to GRANT the Petition.

Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee
as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not
having garnered the highest number of votes to warrant his proclamation.

Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to immediately reconvene and, on the basis of the
completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected
Governor of Sorsogon having garnered the highest number of votes, and he having
reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.

Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of
Sorsogon of this resolution immediately upon the due implementation thereof.

On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en
banc in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition
was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a
Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of
this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following
propositions" 15:

First -- The initiatory petition below was so far insufficient in form and substance to
warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in taking cognizance of and deciding said
petition;

Second -- The judicially declared disqualification of respondent was a continuing

condition and rendered him ineligible to run for, to be elected to and to hold the Office
of Governor;

Third -- The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office of
Governor; and
 Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected Governor of Sorsogon.

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are
also at issue in G.R. No. 123755, as follows:

1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying

Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the
ground that he is not a citizen of the Philippines";

2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and

3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 suspending
the proclamation of, among others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo
assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus
Election Code, which is reproduced hereinunder:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered
"within the period allowed by law" i.e., "not later than fifteen days before the election."

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a
jurisdictional defect which renders the said Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they
are intimately related in their factual environment and are identical in the ultimate question
raised, viz., who should occupy the position of governor of the province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to
file simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship
as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given
retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to
his eligibility to run for, be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317
considering that said petition is not "a pre-proclamation case, an election protest or a quo
warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon,
considering that they were not rendered within the period referred to in Section 78 of the Omnibus
Election Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this
case. All the other matters raised are secondary to this.

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

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a resident therein for
at least one (1) year immediately preceding the day of the election; and able to read
and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member

of the sangguniang panlalawigan, or mayor, vice mayor or member of
the sangguniang panlungsod of highly urbanized cities must be at
least twenty-three (23) years of age on election day.

xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent
upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R.A. 7160).

Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by
repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that
he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to
materialize, notwithstanding the endorsement of several members of the House of Representatives" due,
according to him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the
electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and
20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino
and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us
a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the
Commission on Elections to boot. Moreover, he now boasts of having successfully passed through
the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less
than the Solicitor General himself, who was the prime opposing counsel in the previous cases he
lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to
his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he --
not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon when the
Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably,
he garnered the highest number of votes in the elections and since at that time, he already
reacquired his citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall
now discuss in seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987
Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the
same poses a serious and contentious issue of policy which the present government, in the exercise
of prudence and sound discretion, should best leave to the judgment of the first Congress under the
1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the
Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and all proceedings
within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended." 23

This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed
as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent
ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because
then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not
categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any
legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a
basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not
be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist". 26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for
not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could
be treated as an executive policy addressed to the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever "judgment the first Congress under the
1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it
to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such
law, she should have unequivocally said so instead of referring the matter to Congress. The fact is
she carefully couched her presidential issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound discretion" to leave the matter of repeal
to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now
being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in
just one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the
merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the
President in Malacaang Palace on August 17, 1994. This is confirmed by the Solicitor General.
However, the Special Committee was reactivated only on June 8, 1995, when presumably the said
Committee started processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be said that there was
"indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent," 27 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who
applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a
Manifestation 28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not
been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself
not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements
of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and
cumbersome. In fact, P.D.
725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said
decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-timeentry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States -- a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic
space, wasted no time in returning to his country of birth to offer once more his talent and services to his
people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted
repatriation argues convincingly and conclusively against the existence of favoritism vehemently
posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant
to the doctrine of exhaustion of administrative remedies.

Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could
only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by
the Local Government Code "must exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 104654 30 which held that "both the Local Government
Code and the Constitution require that only Philippine citizens can run and be elected to public office."
Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was
NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

 * a registered voter in the barangay, municipality, city, or province . . . where he
intends to be elected;

* a resident therein for at least one (1) year immediately preceding the day of the
election;

* able to read and write Filipino or any other local language or dialect.

* In addition, "candidates for the position of governor . . . must be at least twenty-

three (23) years of age on election day.

From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at least one
year's residency immediately preceding the day of election) and age (at least twenty three years of
age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an
official begins to govern or to discharge his functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the
very day 32 the term of office of governor (and other elective officials) began -- he was therefore already
qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof
as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the
liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with
the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal)
construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications"
of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time
of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should
thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling
in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure
that our people and country do not end up being governed by aliens,i.e., persons owing allegiance to
another nation, that aim or purpose would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of the elected official and at the start of his
term.

But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect
that the citizenship qualification should be possessed at the time the candidate (or for that matter the
elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much
less a validly registered one -- if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended thecitizenship qualification to be possessed prior to election consistent with the requirement
of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The
law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also
stands to reason that the voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the official be registered as a
voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in
the barangay, municipality, city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to be a registered voter. It
does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this
"qualification". In other words, the law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to govern -- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was
and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by
judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." 36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in
1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a
voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8,
1995." 37

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy.
Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only
provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's
ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation"
of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken
cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June
30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance
earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he
unquestionably garnered the highest number of votes in the immediately preceding elections and such
oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer
ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETROACTED to the date of the filing of his application on August 17, 1994.

It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless
the contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute
is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities,
thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason of some statutory
disability or failure to comply with some technical requirement. They operate on conditions already
existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative
statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are
intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the
purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of
the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the retrospective operation of statutes. 43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new
remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes
the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens"
and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after
the death of their husbands or the termination of their marital status" and who could neither be
benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien
to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725
granted a new right to these women -- the right to re-acquire Filipino citizenship even during their
marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also
provided a new remedyand a new right in favor of other "natural born Filipinos who (had) lost their
Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the
promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire
their Philippine citizenship under the simplified procedure of repatriation.

The Solicitor General 44 argues:

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino
citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and curative.

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation
is given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the
statute was meant to "reach back" to those persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil
right equally as important as the freedom of speech, liberty of abode, the right against unreasonable
searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent
to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said
that a remedial statute must be so construed as to make it effect the evident purpose for which it was
enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future,
then it will be so applied although the statute does not in terms so direct, unless to do so would impair
some vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725, which
did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship
much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American
citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but
even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have
retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that
if, as in this case, it was the intent of the legislative authority that the law should apply to past events
-- i.e., situations and transactions existing even before the law came into being -- in order to benefit
the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest
effect and expression, then there is all the more reason to have the law apply in a retroactive or
retrospective manner to situations, events and transactions subsequent to the passage of such law.
That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect
as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or
would show a contrary intention on the part of the legislative authority; and there is no showing that
damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity
to his repatriation. Neither has Lee shown that there will result the impairment of any contractual
obligation, disturbance of any vested right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should now be
deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants.
If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e.,
to delay the processing of applications for any substantial length of time, then the former Filipinos
who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may
be prejudiced for causes outside their control. This should not be. In case of doubt in the
interpretation or application of laws, it is to be presumed that the law-making body intended right and
justice to prevail. 47

And as experience will show, the Special Committee was able to process, act upon and grant
applications for repatriation within relatively short spans of time after the same were filed. 48 The fact
that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government
as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the effect of wiping out a liability of his to
the government arising in connection with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now
prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's
repatriation as having become effective as of the date of his application, i.e., on August 17, 1994.
This being so, all questions about his possession of the nationality qualification -- whether at the
date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his
certificate of candidacy (March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be
deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino
citizenship restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed
validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of
his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local
Government Code would disqualify him "from running for any elective local position?" 49 We answer
this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the
time he took said oath of allegiance and even 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." 50

On this point, we quote from the assailed Resolution dated December 19, 1995: 51

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

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995
have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness
or
abuse. 52

The Second Issue: Is Lack of Citizenship

a Continuing Disqualification?

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as
affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after
five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable
Court. 54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already
a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which
Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial pronouncements of his political status as an
American citizen absolutely and for all time disqualified (him) from running for, and holding any public
office in the Philippines."

We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed. In the
words of the respondent Commission (Second Division) in its assailed Resolution: 55

The records show that the Honorable Supreme Court had decided that Frivaldo was
not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992
elections. However, there is no record of any "final judgment" of the disqualification of
Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in
its Order of June 21, 1995 (implemented on June 30, 1995), directing the
proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having
been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen
of the Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future
status with finality. This is because a person may subsequently reacquire, or for that matter lose, his
citizenship under any of the modes recognized by law for the purpose. Hence, in Lee
vs. Commissioner of Immigration, 56 we held:

Everytime the citizenship of a person is material or indispensable in a judicial or

administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered res judicata, hence
it has to be threshed out again and again, as the occasion demands.

The Third Issue: Comelec's Jurisdiction

Over The Petition in SPC No. 95-317

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-
317 because the only "possible types of proceedings that may be entertained by the Comelec are a
pre-proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he
was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's)
proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to
him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise
exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all
elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in
the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably
recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of
which SPC No. 95-317 obviously is one. 58 Thus, in Mentang vs.COMELEC, 59 we ruled:

The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases holding
that pre-proclamation controversies may no longer be entertained by the COMELEC
after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando, 187
SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171
SCRA 468.) This rule, however, is premised on an assumption that the proclamation
is no proclamation at all and the proclaimed candidate's assumption of office cannot
deprive the COMELEC of the power to make such declaration of nullity.
(citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA
484.)

The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after
Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the
same.

The Fourth Issue: Was Lee's Proclamation Valid?

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the
choice of the sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a
second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaid Labo 62 case, as follows:

The rule would have been different if the electorate fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In
such case, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the next higher number of votes may be
deemed elected.

But such holding is qualified by the next paragraph, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown,
and none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city Payor as its resolution dated
May 9, 1992 denying due course to petitioner Labo's certificate of candidacy had not
yet become final and subject to the final outcome of this case.

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case
because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on election day as there was in both
cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus)
resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the
May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of
Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such
awareness within the realm of notoriety;" in other words, that the voters intentionally wasted their
ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at
all, it is that the vice-governor -- and not Lee -- should be pro- claimed, since in losing the election,
Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the
emphatic teaching of Labo:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to the
office.

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and
inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should
be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the

Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division)
dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for
want of citizenship should be annulled because they were rendered beyond the fifteen (15) day
period prescribed by Section 78, of the Omnibus Election Code which reads as follows:
 Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided after notice and hearing, not
later than fifteen days before the election. (Emphasis supplied.)

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en
banc 63 on February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:

Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
(emphasis supplied)

Refutation of
Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President
Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as
urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic
distinction because the said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder
CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . .
repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter,
the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a
non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed
earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose
of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were
the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility
of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code
allowing the denial of a certificate of candidacy on the ground of a false material representation
therein as required by Section 74. Citing Loong, he then states his disagreement with our holding
that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error
in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May
11, 1995 were invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec
did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to
try and decide disqualifications even after the elections." In spite of his disagreement with us on this
point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent,
teaches that a petition to deny due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after thefifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the
elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is
no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such
retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second
Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his
qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has
changed his political status -- not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship".
Since our courts are charged only with the duty of determining who are Philippine nationals, we
cannot rule on the legal question of who are or who are not Americans. It is basic in international law
that a State determines ONLY those who are its own citizens -- not who are the citizens of other
countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such
finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such
finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three
previous elections, should be declared winner because "Frivaldo's ineligibility for being an American
was publicly known". First, there is absolutely no empirical evidence for such "public" knowledge.
Second, even if there is, such knowledge can be true post facto only of the last two previous
elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality
before, during and after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications
of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship
qualification [under par. (a) of that section] must be possessed by candidates, not merely at the
commencement of the term, but by election day at the latest. We see it differently. Section 39, par.
(a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the
qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs.
Secondly, if Congress had meant that the citizenship qualification should be possessed at election
day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f)
far other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the
ground, among others, that the law specifically provides that it is only after taking the oath of
allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not
question what the provision states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine
citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have
retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference
to Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the
very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier
in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule
of Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to
interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked
provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of
social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election
laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little
understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon
would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's
conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed
by an elective official at the latest as of the time he is proclaimed and at the start of the term of office
to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's
repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover,
by reason of the remedial or curative nature of the law granting him a new right to resume his
political status and the legislative intent behind it, as well as his unique situation of having been
forced to give up his citizenship and political aspiration as his means of escaping a regime he
abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor,
during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in
contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the
term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his
reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as well. The foregoing, of course, are precisely
consistent with our holding that lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we emphasize herein our previous
rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for
annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to
give fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise
stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we
have held:

. . . (L)aws governing election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be defeated by mere
technical objections (citations omitted). 67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in
deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our democracy. In any action involving
the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to
resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic 68 to constitutional and legal principles that overriding such
ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so
zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could
have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to
his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it
could have disputed the factual findings of the Comelec that he was stateless at the time of
repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any
elective local position." But the real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of
law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against
and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order
to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation
approximating venerability in Philippine political life. Concededly, he sought American citizenship
only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt
about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and
sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy
and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and
sheer determination to re-assume his nationality of birth despite several legal set-backs speak more
loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning
desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to
and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity.
Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and
plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly
insisted on returning to and serving once more his struggling but beloved land of birth. He therefore
deserves every liberal interpretation of the law which can be applied in his favor. And in the final
analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event,
it has no merit.

No costs.

SO ORDERED.

Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Melo, Vitug and Kapunan, JJ., concurs in the result.

Narvasa, C.J. and Mendoza, J., took no part.

 Separate Opinions

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces
the myopia of legalism. Upholding the sovereign will of the people which is the be-all and the end-all
of republicanism, it rests on a foundation that will endure time and its tempest.

The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it
appears as thefirst in our declaration of principles and state policies. Thus, section 1 of Article II of
our fundamental law proclaims that "[t]he Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them." The same
principle served as the bedrock of our 1973 and 1935 Constitutions. 1 It is one of the few principles
whose truth has been cherished by the Americans as self-evident. Section 4, Article IV of the U.S.
Constitution makes it a duty of the Federal government to guarantee to every state a "republican form of
government." With understandable fervor, the American authorities imposed republicanism as the
cornerstone of our 1935 Constitution then being crafted by its Filipino framers. 2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-
oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the Government
is "to serve and protect the people." Section 1, Article XI also provides that ". . . public officers . . .
must at all times be accountable to the people . . ." Sections 15 and 1 of Article XIII define the role
and rights of people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall
strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's
rights in the performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All these
provisions and more are intended to breathe more life to the sovereignty of our people.

To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are buried in
mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in
its broadest sense, sovereignty is meant to be supreme, the jus summi imperu, the absolute right to
govern. 3 Former Dean Vicente Sinco 4 states that an essential quality of sovereignty is legal
omnipotence, viz.: "Legal theory establishes certain essential qualities inherent in the nature of
sovereignty. The first is legal omnipotence. This means that the sovereign is legally omnipotent and
absolute in relation to other legal institutions. It has the power to determine exclusively its legal
competence. Its powers are original, not derivative. It is the sole judge of what it should do at any given
time." 5 Citing Barker, 6 he adds that a more amplified definition of sovereignty is that of "a final power of
final legal adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in the
landmark case of Yick Wo v. Hopkins, 7 where it held that ". . . sovereignty itself is, of course, not subject
to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to
the agencies of government, sovereignty itself remains with the people, by whom and for whom all
government exists and acts."

In our Constitution, the people established a representative democracy as distinguished from a pure
democracy. Justice Isagani Cruz explains: 8

xxx xxx xxx

A republic is a representative government, a government run by and for the people. It

is not a pure democracy where the people govern themselves directly. The essence
of republicanism is representation and renovation, the selection by the citizenry of a
corps of public functionaries who derive their mandate from the people and act on
their behalf, serving for a limited period only, after which they are replaced or
retained, at the option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position as a public
trust and shall, according to the Constitution, "at all times be accountable to the
people" they are sworn to serve. The purpose of a republican government it is almost
needless to state, is the promotion of the common welfare according to the will of the
people themselves.

I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty is indivisible but it
need not always be exercised by the people together, all the time. 9 For this reason, the Constitution
and our laws provide when the entire electorate or only some of them can elect those who make our laws
and those who execute our laws. Thus, the entire electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial electorates vote for the members of our
provincial boards, only our city electorates vote for our city councilors, and only our municipal electorates
vote for our councilors. Also, the entire electorate votes for our President and Vice-President but only our
provincial electorates vote for our governors, only our city electorates vote for our mayors, and only our
municipal electorates vote for our mayors. By defining and delimiting the classes of voters who can
exercise the sovereignty of the people in a given election, it cannot be claimed that said sovereignty has
been fragmented.

It is my respectful submission that the issue in the case at bar is not whether the people of Sorsogon
should be given the right to defy the law by allowing Frivaldo to sit as their governor. Rather, the
issue is: whether the will of the voters of Sorsogon clearly choosing Frivaldo as governor ought to be
given a decisive value considering theuncertainty of the law on when a candidate ought to satisfy the
qualification of citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this
legal issue cannot be denied. In the United States, 10 there are two (2) principal schools of thought on
the matter. One espouses the view that a candidate must possess the qualifications for office at the time
of his election. The other ventures the view that the candidate should satisfy the qualifications at the time
he assumes the powers of the office. I am unaware of any Philippine decision that has squarely resolved
this difficult question of law. The ponencia of Mr. Justice Panganiban adhered to the second school of
thought while Mr. Justice Davide dissents.

I emphasize the honest-to-goodness difference in interpreting our law on the matter for this is vital to
dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to the State. Mr.
Justice Davide's fear is based on the assumption that Frivaldo continues to be disqualified and we
cannot allow him to sit as governor without transgressing the law. I do not concede this assumption
for as stressed above, courts have been sharply divided by this mind boggling issue. Given this
schism, I do not see how we can derogate on the sovereignty of the people by according more
weight to the votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot prosecute
them "because of the doctrine of people's sovereignty." With due respect, the analogy is not
appropriate. In his hypothetical case, rebellion is concededly a crime, a violation of Article 134 of the
Revised Penal Code, an offense against the sovereignty of our people. In the case at bar, it cannot
be held with certitude that the people of Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates allowed by COMELEC to run for governor. At
that time too, Frivaldo was taking all steps to establish his Filipino citizenship. And even our
jurisprudence has not settled the issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then and now, I cannot imagine how it will be
disastrous for the State if we tilt the balance in the case at bar in favor of the people of Sorsogon.

In sum, I respectfully submit that the sovereign will of our people should be resolutory of the case at
bar which is one of its kind, unprecedented in our political history. For three (3) times, Frivaldo ran as
governor of the province of Sorsogon. For two (2) times, he was disqualified on the ground of
citizenship. The people of Sorsogon voted for him as their governor despite his disqualification. The
people never waffled in their support for Frivaldo. In 1988, they gave him a winning margin of
27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a margin of 20,000.
Clearly then, Frivaldo is the overwhelming choice of the people of Sorsogon. In election cases, we
should strive to align the will of the legislature as expressed in its law with the will of the sovereign
people as expressed in their ballots. For law to reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty
and is the ultimate source of established authority." 11 The choice of the governed on who shall be their
governor merits the highest consideration by all agencies of government. In cases where the sovereignty
of the people is at stake, we must not only be legally right but also politically correct. We cannot fail by
making the people succeed.

DAVIDE, JR., J., dissenting:

After deliberating on the re-formulated issues and the conclusions reached by my distinguished
colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.

I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that President
Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No. 725. In my view,
the said memorandum only suspended the implementation of the latter decree by divesting the
Special Committee on Naturalization of its authority to further act on grants of citizenship under LOI
No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and "any other related laws,
orders, issuances and rules and regulations." A reading of the last paragraph of the memorandum
can lead to no other conclusion, thus:

In view of the foregoing, you as Chairman and members of the Special Committee on
Naturalization, are hereby directed to cease and desist from undertaking any and all
proceedings within your functional area of responsibility, as defined in Letter of
Instruction No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836
dated December 3, 1975, as amended, and Presidential Decree No. 1379 dated May
17, 1978, relative to the grant of citizenship under the said laws, and any other
related laws, orders, issuances and rules and regulations. (emphasis supplied)

It is self-evident that the underscored clause can only refer to those related to LOI No. 270, P.D. No.
836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one such "related law" as
it involves the reacquisition of Philippine citizenship by repatriation and designates the Special
Committee on Naturalization created under LOI No. 270 to receive and act on (i.e., approve or
disapprove) applications under the said decree. The power of President Aquino to suspend these
issuances by virtue of the 27 March 1987 memorandum is beyond question considering that under
Section 6, Article XVIII of the 1987 Constitution, she exercised legislative power until the Congress
established therein convened on the fourth Monday of July 1987.

I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987 was
merely a declaration of "executive policy," and not an exercise of legislative power. LOI No. 270, P.D.
No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers -- not executive power. These laws
relate to the acquisition (by naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and
reacquisition of Philippine citizenship shall be in accordance with law), it is indubitable that these
subjects are a matter of legislative prerogative. In the same vein, the creation of the Special
Committee on Naturalization by LOI No. 270 and the conferment of the power to accept and act on
applications under P.D. No. 725 are clearly legislative acts.

Accordingly, the revocation of the cease and desist order and the reactivation or revival of the
Committee can be done only by legislative fiat, i.e., by Congress, since the President had long lost
his authority to exercise "legislative power." Considering that Congress has not seen it fit to do so,
the President cannot, in the exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot validly accept
Frivaldo's application for repatriation and approve it.

II

Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of citizenship." I
depart from the view in the ponencia that Section 39 of the Local Government Code of 1991 does
not specify the time when the citizenship requirement must be met, and that being the case, then it
suffices that citizenship be possessed upon commencement of the term of the office involved;
therefore, since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995 and
the term of office of Governor commenced at 12:00 noon of that day, he had, therefore, complied
with the citizenship requirement.

In the first place, Section 39 actually prescribes the qualifications of elective local officials and not
those of anelected local official. These adjectives are not synonymous, as the ponencia seems to
suggest. The first refers to the nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious candidate for an elective office. The
section unquestionably refers to elective -- not elected -- local officials. It falls under Title Two
entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph
(a) thereof begins with the phrase "An elective local official," while paragraphs (b) to (f) thereof
speak of candidates. It reads as follows:

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a resident therein for
at least one (1) year immediately preceding the day of the election; and able to read
and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
 panlungsod of highly urbanized cities must be at least twenty-three (23) years of age
on election day.

(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of
age on election day.

(d) Candidates for the position of member of the sangguniang panlungsod or

sangguniang bayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age but not more than twenty-one (21) years of age on election day (emphasis
supplied)

It is thus obvious that Section 39 refers to no other than the qualifications of candidates for
elective local offices and their election. Hence, in no way may the section be construed to
mean that possession of qualifications should be reckoned from the commencement of the
term of office of the elected candidate.

For another, it is not at all true that Section 39 does not specify the time when the citizenship
requirement must be possessed. I submit that the requirement must be satisfied, or that Philippine
citizenship must be possessed, not merely at the commencement of the term, but at an earlier time,
the latest being election day itself. Section 39 is not at all ambiguous nor uncertain that it meant this
to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN
THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This
simply means that he possesses all the qualifications to exercise the right of suffrage. The
fundamental qualification for the exercise of this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article V
thereof provides:

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

And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) expressly
provides for the qualifications of a voter. Thus:

Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be a registered voter.
(emphasis supplied)

It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and 1992
elections on the ground that for lack of Philippine citizenship -- he being a naturalized citizen of the
United States of America -- he was DISQUALIFIED to be elected as such and to serve the position
(Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De la
Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's registration as a
voter and declared it void ab initio. Our judgments therein were self-executory and no further
act, e.g., a COMELEC order to cancel his registration as a voter or the physical destruction of his
voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a registered
voter for the elections of May 1992, and May 1995, as there is no showing that Frivaldo registered
anew as a voter for the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally void ab initio. That he
filed his certificate of candidacy for the 1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court. On the
contrary, said acts made a mockery of our judgments. For the Court now to validate Frivaldo's
registration as a voter despite the judgments of disqualification is to modify the said judgments by
making their effectivity and enforceability dependent on a COMELEC order cancelling his
registration as a voter, or on the physical destruction of his certificate of registration as a voter which,
of course, was never our intention. Moreover, to sanction Frivaldo's registration as a voter would be
to sacrifice substance in favor of form (the piece of paper that is the book of voters or list of voters or
voter's ID), and abet the COMELEC's incompetence in failing to cancel Frivaldo's registration and
allowing him to vote.

The second reason in the ponencia as to why the citizenship disqualification should be reckoned not
from the date of the election nor the filing of the certificate of candidacy, but from the date of
proclamation, is that the only available remedy to question the ineligibility (or disloyalty) of a
candidate is a petition for quo warranto which, under Section 253 of the Omnibus Election Code,
may be filed only within ten days from proclamation and not earlier.

I beg to differ.

Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility for public
office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to
or cancel the certificate of candidacy on the ground that any material representation contained
therein, as required by Section 74, is false. Section 74, in turn, requires that the person filing the
certificate of candidacy must state, inter alia, that he is eligible for the office, which means that he
has all the qualifications (including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be filed at any time not later
than 25 days from the filing of the certificate of candidacy. The section reads in full as follows:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.

This remedy was recognized in Loong vs. Commission on Elections (216 SCRA 760, 768
[1992]), where this Court held:

Thus, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the 25-day period Section 78 of the Code for whatever reasons,
the election laws do not leave him completely helpless as he has another chance to
raise the disqualification of the candidate by filing a petition for quo warranto within
ten (10) days from the proclamation of the results of the election, as provided under
 Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules of Procedure
similarly provides that any voter contesting the election of any regional, provincial or
city official on the ground of ineligibility or of disloyalty to the Republic of the
Philippines may file a petition for quo warranto with the Electoral Contest
Adjudication Department. The petition may be filed within ten (10) days from the date
the respondent is proclaimed (Section 2).

Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a petition for
disqualification on the ground of failure to possess all the qualifications of a candidate as provided by
the Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy
but not later than the date of proclamation." Sections 1 and 3 thereof provide:

Rule 25 -- Disqualification of Candidates

Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

xxx xxx xxx

Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.

While the validity of this rule insofar as it concerns petitions for disqualification on the ground
of lack of all qualifications may be doubtful, its invalidity is not in issue here.

In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is provided
in Loong.

We also do not find merit in the contention of respondent Commission that in the light
of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition to deny due
course to or cancel a certificate of candidacy may be filed even beyond the 25-day
period prescribed by Section 78 of the Code, as long as it is filed within a reasonable
time from the discovery of the ineligibility.

Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:

Sec. 6. Effect of Disqualification case. Any candidate who has been

declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and, upon motion
of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
 Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy as
provided in Section 78 of Batas Pambansa Blg. 881.

It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day period
prescribed by Section 78 of the Code for filing the appropriate action to cancel a
certificate of candidacy on account of any false representation made therein. On the
contrary, said Section 7 affirms and reiterates Section 78 of the Code.

We note that Section 6 refers only to the effects of a disqualification case which may
be based on grounds other than that provided under Section 78 of the Code. But
Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which
these disqualification cases may be filed. This is because there are provisions in the
Code which supply the periods within which a petition relating to disqualification of
candidates must be filed, such as Section 78, already discussed, and Section 253 on
petitions for quo warranto.

I then disagree with the asseveration in the ponencia that Section 78 is merely directory because
Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions for disqualification
even after elections. I submit that Section 6 refers to disqualifications under Sections 12 and 68 of
the Omnibus Election Code and consequently modifies Section 72 thereof. As such, the proper court
or the COMELEC are granted the authority to continue hearing the case after the election, and
during the pendency of the case, suspend the proclamation of the victorious candidate, if the
evidence against him is strong. Sections 12, 68, and 72 of the Code provide:

Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed

upon declaration by competent authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.

xxx xxx xxx

Sec. 68. Disqualifications. 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 having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
 immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Sec. 25, 1971 EC)

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.

III

Still assuming that the repatriation is valid, I am not persuaded by the arguments in support of the
thesis that Frivaldo's repatriation may be given retroactive effect, as such goes against the spirit and
letter of P.D. No. 725. The spirit adheres to the principle that acquisition or re-acquisition of
Philippine citizenship is not a right, but a mere privilege. Before the advent of P.D. No. 725, only the
following could apply for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who
lost her citizenship by reason of her marriage to an alien after the death of her spouse (Section 2[2],
C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women who lost their Philippine
citizenship by marriage to aliens even before the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens who lost their Philippine citizenship but
subsequently desired to reacquire the latter.

Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes effect
only after taking the oath of allegiance to the Republic of the Philippines, thus:

. . . may reacquire Philippine citizenship . . . by applying with the Special Committee

on Naturalization created by Letter of Instruction No. 270, and, if their applications
are approved, taking the necessary oath of allegiance to the Republic of the
Philippines, AFTER WHICH THEY SHALL BE DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP. (emphasis and capitalization supplied)

Clearly then, the steps to reacquire Philippine citizenship by repatriation under the decree
are: (1) filing the application; (2) action by the committee; and (3) taking of the oath of
allegiance if the application is approved. It is only UPON TAKING THE OATH OF
ALLEGIANCE that the applicant is deemed ipso jure to have reacquired Philippine
citizenship. If the decree had intended the oath taking to retroact to the date of the filing of
the application, then it should not have explicitly provided otherwise.

This theory in the ponencia likewise dilutes this Court's pronouncement in the first Frivaldo case that
what reacquisition of Filipino citizenship requires is an act "formally rejecting [the] adopted state and
reaffirming . . . allegiance to the Philippines." That act meant nothing less than taking of the oath of
allegiance to the Republic of the Philippines. If we now take this revision of doctrine to its logical end,
then it would also mean that if Frivaldo had chosen and reacquired Philippine citizenship by
naturalization or through Congressional action, such would retroact to the filing of the petition for
naturalization or the bill granting him Philippine citizenship. This is a proposition which both the first
and second Frivaldo cases soundly rejected.

The other reason adduced in the ponencia in support of the proposition that P.D. No. 725 can be
given retroactive effect is its alleged curative or remedial nature.

Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be
characterized as a curative or remedial statute:

Curative or remedial statutes are healing acts. They are remedial by curing defects
and adding to the means of enforcing existing obligations. The rule in regard to
curative statutes is that if the thing omitted or failed to be done, and which constitutes
the defect sought to be removed or made harmless, is something the legislature
might have dispensed with by a previous statute, it may do so by a subsequent one.

Curative statutes are intended to supply defects, abridge superfluities in existing

laws, and curb certain evils. They are intended to enable a person to carry into effect
that which they have designed and intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own action.
They make valid that which, before the enactment of the statute, was invalid.
(RUBEN E. AGPALO, Statutory Construction, Second ed. [1990], 270-271, citations
omitted).

P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a
Filipina to an alien and through naturalization in a foreign country of natural-born Filipino citizens. It
involves then the substantive, nay primordial, right of citizenship. To those for whom it is intended, it
means, in reality, the acquisition of "a new right," as the ponencia cannot but concede. Therefore, it
may not be said to merely remedy or cure a defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As earlier stated, the Constitution provides that
citizenship, once lost, may only be reacquired in the manner provided by law. Moreover, it has also
been observed that:

The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory Construction,
Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).

If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial statute, it
would be an inexcusable error to give it a retroactive effect since it explicitly provides the date of its
effectivity. Thus:

This Decree shall take effect immediately.

Done in the city of Manila, this 5th day of June, in the year of Our Lord, nineteen
hundred and seventy five.

Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship, then
nothing therein supports such theory, for as the decree itself unequivocally provides, it is only
after taking the oath of allegiance to the Republic of the Philippines that the applicant is DEEMED
TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.

IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted to the
date of Frivaldo's application for repatriation, the same could not be said insofar as it concerned the
United States of America, of which he was a citizen. For under the laws of the United States of
America, Frivaldo remained an American national until he renounced his citizenship and allegiance
thereto at 2:00 p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the
Philippines. Section 401 of the Nationality Act of 1940 of the United States of America provides that
a person who is a national of the United States of America, whether by birth or naturalization, loses
his nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal declaration
of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed., [1948] 341-342). It follows then that on
election day and until the hour of the commencement of the term for which he was elected - noon of
30 June 1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption of the
theory that the effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual citizenship, in accordance
with Section 40 (d) of the Local Government Code.

The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of his claim
that he "had long renounced and had long abandoned his American citizenship - long before May 8,
1985" - is untenable, for the following reasons: first, it is based on Frivaldo's unproven, self-serving
allegation; second, informal renunciation or abandonment is not a ground to lose American
citizenship; and third, simply put, never did the status of a STATELESS person attach to Frivaldo.

Statelessness may be either de jure, which is the status of individuals stripped of their nationality by
their former government without having an opportunity to acquire another; or de facto, which is the
status of individuals possessed of a nationality whose country does not give them protection outside
their own country, and who are commonly, albeit imprecisely, referred to as refugees (JORGE R.
COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).

Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the Status of
Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III,
363), a stateless person is defined as "a person who is not considered as a national by any State
under the operation of its law." However, it has not been shown that the United States of America
ever ceased to consider Frivaldo its national at any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.

VI

Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice Reynato S.
Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty of our people is the
primary postulate of the 1987 Constitution" and that the said Constitution is "more people-oriented,"
"borne [as it is] out of the 1986 people power EDSA revolution." I would even go further by saying
that this Constitution is pro-God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16;
Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI,
Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2),
13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3);
Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-
family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I
perceive to be the reasonable constitutional parameters. The doctrine of people's sovereignty is
founded on the principles of democracy and republicanism and refers exclusively to the sovereignty
of the people of the Philippines. Section 1 of Article II is quite clear on this, thus:

Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in

the people and all government authority emanates from them.

And the Preamble makes it clear when it solemnly opens it with a clause "We, the sovereign
Filipino people. . ." Thus, this sovereignty is an attribute of the Filipino people as one
people, one body.

That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme
authority of the people of any of the political subdivisions to determine their own destiny; neither can
we convert and treat every fragment as the whole. In such a case, this Court would provide the
formula for the division and destruction of the State and render the Government ineffective and
inutile. To illustrate the evil, we may consider the enforcement of laws or the pursuit of a national
policy by the executive branch of the government, or the execution of a judgment by the courts. If
these are opposed by the overwhelming majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law, national policy, or judgment must not be
enforced, implemented, or executed in the said province or municipality. More concretely, if, for
instance, the vast majority of the people of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to the said Government or its laws, the
territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other
armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives, then those who did so -- and which are composed of the vast majority of the
people of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion in
violation of Article 134 of the Revised Penal Code because of the doctrine of peoples' sovereignty.
Indeed, the expansion of the doctrine of sovereignty by investing upon the people of a mere political
subdivision that which the Constitution places in the entire Filipino people, may be disastrous to the
Nation.

So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because Frivaldo
had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast majority of the voters of
Sorsogon had expressed their sovereign will for the former, then this Court must yield to that will and
must, therefore, allow to be set aside, for Frivaldo, not just the laws on qualifications of candidates
and elective officials and naturalization and reacquisition of Philippine citizenship, but even the final
and binding decisions of this Court affecting him.

This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No. 120295 and
GRANT G.R. No. 123755.

Separate Opinions

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people and pierces
the myopia of legalism. Upholding the sovereign will of the people which is the be-all and the end-all
of republicanism, it rests on a foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this reason, it
appears as thefirst in our declaration of principles and state policies. Thus, section 1 of Article II of
our fundamental law proclaims that "[t]he Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them." The same
principle served as the bedrock of our 1973 and 1935 Constitutions. 1 It is one of the few principles
whose truth has been cherished by the Americans as self-evident. Section 4, Article IV of the U.S.
Constitution makes it a duty of the Federal government to guarantee to every state a "republican form of
government." With understandable fervor, the American authorities imposed republicanism as the
cornerstone of our 1935 Constitution then being crafted by its Filipino framers. 2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more people-
oriented. Thus, section 4 of Article II provides as a state policy that the prime duty of the Government
is "to serve and protect the people." Section 1, Article XI also provides that ". . . public officers . . .
must at all times be accountable to the people . . ." Sections 15 and 1 of Article XIII define the role
and rights of people's organizations. Section 5(2) of Article XVI mandates that "[t]he state shall
strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's
rights in the performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ." All these
provisions and more are intended to breathe more life to the sovereignty of our people.

To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions are buried in
mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in
its broadest sense, sovereignty is meant to be supreme, the jus summi imperu, the absolute right to
govern. 3 Former Dean Vicente Sinco 4 states that an essential quality of sovereignty is legal
omnipotence, viz.: "Legal theory establishes certain essential qualities inherent in the nature of
sovereignty. The first is legal omnipotence. This means that the sovereign is legally omnipotent and
absolute in relation to other legal institutions. It has the power to determine exclusively its legal
competence. Its powers are original, not derivative. It is the sole judge of what it should do at any given
time." 5 Citing Barker, 6 he adds that a more amplified definition of sovereignty is that of "a final power of
final legal adjustment of all legal issues." The U.S. Supreme Court expressed the same thought in the
landmark case of Yick Wo v. Hopkins, 7 where it held that ". . . sovereignty itself is, of course, not subject
to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to
the agencies of government, sovereignty itself remains with the people, by whom and for whom all
government exists and acts."

In our Constitution, the people established a representative democracy as distinguished from a pure
democracy. Justice Isagani Cruz explains: 8

xxx xxx xxx

A republic is a representative government, a government run by and for the people. It

is not a pure democracy where the people govern themselves directly. The essence
of republicanism is representation and renovation, the selection by the citizenry of a
corps of public functionaries who derive their mandate from the people and act on
their behalf, serving for a limited period only, after which they are replaced or
retained, at the option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position as a public
trust and shall, according to the Constitution, "at all times be accountable to the
people" they are sworn to serve. The purpose of a republican government it is almost
needless to state, is the promotion of the common welfare according to the will of the
people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty is indivisible but it
need not always be exercised by the people together, all the time. 9 For this reason, the Constitution
and our laws provide when the entire electorate or only some of them can elect those who make our laws
and those who execute our laws. Thus, the entire electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial electorates vote for the members of our
provincial boards, only our city electorates vote for our city councilors, and only our municipal electorates
vote for our councilors. Also, the entire electorate votes for our President and Vice-President but only our
provincial electorates vote for our governors, only our city electorates vote for our mayors, and only our
municipal electorates vote for our mayors. By defining and delimiting the classes of voters who can
exercise the sovereignty of the people in a given election, it cannot be claimed that said sovereignty has
been fragmented.

It is my respectful submission that the issue in the case at bar is not whether the people of Sorsogon
should be given the right to defy the law by allowing Frivaldo to sit as their governor. Rather, the
issue is: whether the will of the voters of Sorsogon clearly choosing Frivaldo as governor ought to be
given a decisive value considering theuncertainty of the law on when a candidate ought to satisfy the
qualification of citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this
legal issue cannot be denied. In the United States, 10 there are two (2) principal schools of thought on
the matter. One espouses the view that a candidate must possess the qualifications for office at the time
of his election. The other ventures the view that the candidate should satisfy the qualifications at the time
he assumes the powers of the office. I am unaware of any Philippine decision that has squarely resolved
this difficult question of law. The ponencia of Mr. Justice Panganiban adhered to the second school of
thought while Mr. Justice Davide dissents.

I emphasize the honest-to-goodness difference in interpreting our law on the matter for this is vital to
dispel the fear of Mr. Justice Davide that my opinion can bring about ill effects to the State. Mr.
Justice Davide's fear is based on the assumption that Frivaldo continues to be disqualified and we
cannot allow him to sit as governor without transgressing the law. I do not concede this assumption
for as stressed above, courts have been sharply divided by this mind boggling issue. Given this
schism, I do not see how we can derogate on the sovereignty of the people by according more
weight to the votes of the people of Sorsogon.

Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot prosecute
them "because of the doctrine of people's sovereignty." With due respect, the analogy is not
appropriate. In his hypothetical case, rebellion is concededly a crime, a violation of Article 134 of the
Revised Penal Code, an offense against the sovereignty of our people. In the case at bar, it cannot
be held with certitude that the people of Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates allowed by COMELEC to run for governor. At
that time too, Frivaldo was taking all steps to establish his Filipino citizenship. And even our
jurisprudence has not settled the issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then and now, I cannot imagine how it will be
disastrous for the State if we tilt the balance in the case at bar in favor of the people of Sorsogon.

In sum, I respectfully submit that the sovereign will of our people should be resolutory of the case at
bar which is one of its kind, unprecedented in our political history. For three (3) times, Frivaldo ran as
governor of the province of Sorsogon. For two (2) times, he was disqualified on the ground of
citizenship. The people of Sorsogon voted for him as their governor despite his disqualification. The
people never waffled in their support for Frivaldo. In 1988, they gave him a winning margin of
27,000; in 1992, they gave him a winning spread of 57,000; in 1995, he posted a margin of 20,000.
Clearly then, Frivaldo is the overwhelming choice of the people of Sorsogon. In election cases, we
should strive to align the will of the legislature as expressed in its law with the will of the sovereign
people as expressed in their ballots. For law to reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen is a particle of popular sovereignty
and is the ultimate source of established authority." 11 The choice of the governed on who shall be their
governor merits the highest consideration by all agencies of government. In cases where the sovereignty
of the people is at stake, we must not only be legally right but also politically correct. We cannot fail by
making the people succeed.

DAVIDE, JR., J., dissenting:

After deliberating on the re-formulated issues and the conclusions reached by my distinguished
colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join him.

I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground that President
Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed" P.D. No. 725. In my view,
the said memorandum only suspended the implementation of the latter decree by divesting the
Special Committee on Naturalization of its authority to further act on grants of citizenship under LOI
No. 270, as amended, P.D. No. 836, as amended; P.D. No. 1379; and "any other related laws,
orders, issuances and rules and regulations." A reading of the last paragraph of the memorandum
can lead to no other conclusion, thus:

In view of the foregoing, you as Chairman and members of the Special Committee on
Naturalization, are hereby directed to cease and desist from undertaking any and all
proceedings within your functional area of responsibility, as defined in Letter of
Instruction No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836
dated December 3, 1975, as amended, and Presidential Decree No. 1379 dated May
17, 1978, relative to the grant of citizenship under the said laws, and any other
related laws, orders, issuances and rules and regulations. (emphasis supplied)

It is self-evident that the underscored clause can only refer to those related to LOI No. 270, P.D. No.
836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is one such "related law" as
it involves the reacquisition of Philippine citizenship by repatriation and designates the Special
Committee on Naturalization created under LOI No. 270 to receive and act on (i.e., approve or
disapprove) applications under the said decree. The power of President Aquino to suspend these
issuances by virtue of the 27 March 1987 memorandum is beyond question considering that under
Section 6, Article XVIII of the 1987 Constitution, she exercised legislative power until the Congress
established therein convened on the fourth Monday of July 1987.

I disagree with the view expressed in the ponencia that the memorandum of 27 March 1987 was
merely a declaration of "executive policy," and not an exercise of legislative power. LOI No. 270, P.D.
No. 836, P.D. No. 1379 and "any other related laws," such as P.D. No. 725, were issued by President
Ferdinand E. Marcos in the exercise of his legislative powers -- not executive power. These laws
relate to the acquisition (by naturalization) and reacquisition (by repatriation) of Philippine
citizenship, and in light of Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and
reacquisition of Philippine citizenship shall be in accordance with law), it is indubitable that these
subjects are a matter of legislative prerogative. In the same vein, the creation of the Special
Committee on Naturalization by LOI No. 270 and the conferment of the power to accept and act on
applications under P.D. No. 725 are clearly legislative acts.

Accordingly, the revocation of the cease and desist order and the reactivation or revival of the
Committee can be done only by legislative fiat, i.e., by Congress, since the President had long lost
his authority to exercise "legislative power." Considering that Congress has not seen it fit to do so,
the President cannot, in the exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot validly accept
Frivaldo's application for repatriation and approve it.

II

Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of citizenship." I
depart from the view in the ponencia that Section 39 of the Local Government Code of 1991 does
not specify the time when the citizenship requirement must be met, and that being the case, then it
suffices that citizenship be possessed upon commencement of the term of the office involved;
therefore, since Frivaldo "re-assumed" his Philippine citizenship at 2:00 p.m. on 30 June 1995 and
the term of office of Governor commenced at 12:00 noon of that day, he had, therefore, complied
with the citizenship requirement.

In the first place, Section 39 actually prescribes the qualifications of elective local officials and not
those of anelected local official. These adjectives are not synonymous, as the ponencia seems to
suggest. The first refers to the nature of the office, which requires the process of voting by the
electorate involved; while the second refers to a victorious candidate for an elective office. The
section unquestionably refers to elective -- not elected -- local officials. It falls under Title Two
entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election; and paragraph
(a) thereof begins with the phrase "An elective local official," while paragraphs (b) to (f) thereof
speak of candidates. It reads as follows:

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a resident therein for
at least one (1) year immediately preceding the day of the election; and able to read
and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of age
on election day.

(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of
age on election day.

(d) Candidates for the position of member of the sangguniang panlungsod or

sangguniang bayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age but not more than twenty-one (21) years of age on election day (emphasis
supplied)

It is thus obvious that Section 39 refers to no other than the qualifications of candidates for
elective local offices and their election. Hence, in no way may the section be construed to
 mean that possession of qualifications should be reckoned from the commencement of the
term of office of the elected candidate.

For another, it is not at all true that Section 39 does not specify the time when the citizenship
requirement must be possessed. I submit that the requirement must be satisfied, or that Philippine
citizenship must be possessed, not merely at the commencement of the term, but at an earlier time,
the latest being election day itself. Section 39 is not at all ambiguous nor uncertain that it meant this
to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN
THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO VOTE." This
simply means that he possesses all the qualifications to exercise the right of suffrage. The
fundamental qualification for the exercise of this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first qualification, as Section 1, Article V
thereof provides:

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

And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) expressly
provides for the qualifications of a voter. Thus:

Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be a registered voter.
(emphasis supplied)

It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988 and 1992
elections on the ground that for lack of Philippine citizenship -- he being a naturalized citizen of the
United States of America -- he was DISQUALIFIED to be elected as such and to serve the position
(Frivaldo vs. Commission on Elections, 174 SCRA 245 [1989]; Republic of the Philippines vs. De la
Rosa, 232 SCRA 785 [1994]). This disqualification inexorably nullified Frivaldo's registration as a
voter and declared it void ab initio. Our judgments therein were self-executory and no further
act, e.g., a COMELEC order to cancel his registration as a voter or the physical destruction of his
voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a registered
voter for the elections of May 1992, and May 1995, as there is no showing that Frivaldo registered
anew as a voter for the latter elections. Even if he did -- in obvious defiance of his decreed
disqualification -- this did not make him a Filipino citizen, hence it was equally void ab initio. That he
filed his certificate of candidacy for the 1995 elections and was even allowed to vote therein were of
no moment. Neither act made him a Filipino citizen nor nullified the judgments of this Court. On the
contrary, said acts made a mockery of our judgments. For the Court now to validate Frivaldo's
registration as a voter despite the judgments of disqualification is to modify the said judgments by
making their effectivity and enforceability dependent on a COMELEC order cancelling his
registration as a voter, or on the physical destruction of his certificate of registration as a voter which,
of course, was never our intention. Moreover, to sanction Frivaldo's registration as a voter would be
to sacrifice substance in favor of form (the piece of paper that is the book of voters or list of voters or
voter's ID), and abet the COMELEC's incompetence in failing to cancel Frivaldo's registration and
allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be reckoned not
from the date of the election nor the filing of the certificate of candidacy, but from the date of
proclamation, is that the only available remedy to question the ineligibility (or disloyalty) of a
candidate is a petition for quo warranto which, under Section 253 of the Omnibus Election Code,
may be filed only within ten days from proclamation and not earlier.

I beg to differ.

Clearly, quo warranto is not the sole remedy available to question a candidate's ineligibility for public
office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to
or cancel the certificate of candidacy on the ground that any material representation contained
therein, as required by Section 74, is false. Section 74, in turn, requires that the person filing the
certificate of candidacy must state, inter alia, that he is eligible for the office, which means that he
has all the qualifications (including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be filed at any time not later
than 25 days from the filing of the certificate of candidacy. The section reads in full as follows:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of the
filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.

This remedy was recognized in Loong vs. Commission on Elections (216 SCRA 760, 768
[1992]), where this Court held:

Thus, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the 25-day period Section 78 of the Code for whatever reasons,
the election laws do not leave him completely helpless as he has another chance to
raise the disqualification of the candidate by filing a petition for quo warranto within
ten (10) days from the proclamation of the results of the election, as provided under
Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules of Procedure
similarly provides that any voter contesting the election of any regional, provincial or
city official on the ground of ineligibility or of disloyalty to the Republic of the
Philippines may file a petition for quo warranto with the Electoral Contest
Adjudication Department. The petition may be filed within ten (10) days from the date
the respondent is proclaimed (Section 2).

Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a petition for
disqualification on the ground of failure to possess all the qualifications of a candidate as provided by
the Constitution or by existing laws, "any day after the last day for filing of certificates of candidacy
but not later than the date of proclamation." Sections 1 and 3 thereof provide:

Rule 25 -- Disqualification of Candidates

Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
 xxx xxx xxx

Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.

While the validity of this rule insofar as it concerns petitions for disqualification on the ground
of lack of all qualifications may be doubtful, its invalidity is not in issue here.

In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer is provided
in Loong.

We also do not find merit in the contention of respondent Commission that in the light
of the provisions of Sections 6 and 7 of Rep. Act No. 6646, a petition to deny due
course to or cancel a certificate of candidacy may be filed even beyond the 25-day
period prescribed by Section 78 of the Code, as long as it is filed within a reasonable
time from the discovery of the ineligibility.

Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:

Sec. 6. Effect of Disqualification case. Any candidate who has been

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

Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of

Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy as
provided in Section 78 of Batas Pambansa Blg. 881.

It will be noted that nothing in Sections 6 or 7 modifies or alters the 25- day period
prescribed by Section 78 of the Code for filing the appropriate action to cancel a
certificate of candidacy on account of any false representation made therein. On the
contrary, said Section 7 affirms and reiterates Section 78 of the Code.

We note that Section 6 refers only to the effects of a disqualification case which may
be based on grounds other than that provided under Section 78 of the Code. But
Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention made of the period within which
these disqualification cases may be filed. This is because there are provisions in the
Code which supply the periods within which a petition relating to disqualification of
candidates must be filed, such as Section 78, already discussed, and Section 253 on
petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory because
Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide petitions for disqualification
even after elections. I submit that Section 6 refers to disqualifications under Sections 12 and 68 of
the Omnibus Election Code and consequently modifies Section 72 thereof. As such, the proper court
or the COMELEC are granted the authority to continue hearing the case after the election, and
during the pendency of the case, suspend the proclamation of the victorious candidate, if the
evidence against him is strong. Sections 12, 68, and 72 of the Code provide:

Sec. 12. Disqualifications. Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed

upon declaration by competent authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.

xxx xxx xxx

Sec. 68. Disqualifications. 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 having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Sec. 25, 1971 EC)

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.

III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in support of the
thesis that Frivaldo's repatriation may be given retroactive effect, as such goes against the spirit and
letter of P.D. No. 725. The spirit adheres to the principle that acquisition or re-acquisition of
Philippine citizenship is not a right, but a mere privilege. Before the advent of P.D. No. 725, only the
following could apply for repatriation: (a) Army, Navy, or Air Corps deserters; and (b) a woman who
lost her citizenship by reason of her marriage to an alien after the death of her spouse (Section 2[2],
C.A. No. 63). P.D. NO. 725 expanded this to include Filipino women who lost their Philippine
citizenship by marriage to aliens even before the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens who lost their Philippine citizenship but
subsequently desired to reacquire the latter.

Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation takes effect
only after taking the oath of allegiance to the Republic of the Philippines, thus:

. . . may reacquire Philippine citizenship . . . by applying with the Special Committee

on Naturalization created by Letter of Instruction No. 270, and, if their applications
are approved, taking the necessary oath of allegiance to the Republic of the
Philippines, AFTER WHICH THEY SHALL BE DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP. (emphasis and capitalization supplied)

Clearly then, the steps to reacquire Philippine citizenship by repatriation under the decree
are: (1) filing the application; (2) action by the committee; and (3) taking of the oath of
allegiance if the application is approved. It is only UPON TAKING THE OATH OF
ALLEGIANCE that the applicant is deemed ipso jure to have reacquired Philippine
citizenship. If the decree had intended the oath taking to retroact to the date of the filing of
the application, then it should not have explicitly provided otherwise.

This theory in the ponencia likewise dilutes this Court's pronouncement in the first Frivaldo case that
what reacquisition of Filipino citizenship requires is an act "formally rejecting [the] adopted state and
reaffirming . . . allegiance to the Philippines." That act meant nothing less than taking of the oath of
allegiance to the Republic of the Philippines. If we now take this revision of doctrine to its logical end,
then it would also mean that if Frivaldo had chosen and reacquired Philippine citizenship by
naturalization or through Congressional action, such would retroact to the filing of the petition for
naturalization or the bill granting him Philippine citizenship. This is a proposition which both the first
and second Frivaldo cases soundly rejected.

The other reason adduced in the ponencia in support of the proposition that P.D. No. 725 can be
given retroactive effect is its alleged curative or remedial nature.

Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No. 725 be
characterized as a curative or remedial statute:

Curative or remedial statutes are healing acts. They are remedial by curing defects
and adding to the means of enforcing existing obligations. The rule in regard to
curative statutes is that if the thing omitted or failed to be done, and which constitutes
the defect sought to be removed or made harmless, is something the legislature
might have dispensed with by a previous statute, it may do so by a subsequent one.

Curative statutes are intended to supply defects, abridge superfluities in existing

laws, and curb certain evils. They are intended to enable a person to carry into effect
that which they have designed and intended, but has failed of expected legal
consequence by reason of some statutory disability or irregularity in their own action.
 They make valid that which, before the enactment of the statute, was invalid.
(RUBEN E. AGPALO, Statutory Construction, Second ed. [1990], 270-271, citations
omitted).

P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a
Filipina to an alien and through naturalization in a foreign country of natural-born Filipino citizens. It
involves then the substantive, nay primordial, right of citizenship. To those for whom it is intended, it
means, in reality, the acquisition of "a new right," as the ponencia cannot but concede. Therefore, it
may not be said to merely remedy or cure a defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As earlier stated, the Constitution provides that
citizenship, once lost, may only be reacquired in the manner provided by law. Moreover, it has also
been observed that:

The idea is implicit from many of the cases that remedial statutes are statutes
relating to procedure and not substantive rights. (Sutherland, Statutory Construction,
Vol. 3, Third ed. [1943], 5704 at 74, citations omitted).

If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial statute, it
would be an inexcusable error to give it a retroactive effect since it explicitly provides the date of its
effectivity. Thus:

This Decree shall take effect immediately.

Done in the city of Manila, this 5th day of June, in the year of Our Lord, nineteen
hundred and seventy five.

Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine citizenship, then
nothing therein supports such theory, for as the decree itself unequivocally provides, it is only
after taking the oath of allegiance to the Republic of the Philippines that the applicant is DEEMED
TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.

IV

Assuming yet again, for the sake of argument, that taking the oath of allegiance retroacted to the
date of Frivaldo's application for repatriation, the same could not be said insofar as it concerned the
United States of America, of which he was a citizen. For under the laws of the United States of
America, Frivaldo remained an American national until he renounced his citizenship and allegiance
thereto at 2:00 p.m. on 30 June 1995, when he took his oath of allegiance to the Republic of the
Philippines. Section 401 of the Nationality Act of 1940 of the United States of America provides that
a person who is a national of the United States of America, whether by birth or naturalization, loses
his nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal declaration
of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed., [1948] 341-342). It follows then that on
election day and until the hour of the commencement of the term for which he was elected - noon of
30 June 1995 as per Section 43 of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a Filipino citizen through the adoption of the
theory that the effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual citizenship, in accordance
with Section 40 (d) of the Local Government Code.

V
The assertion in the ponencia that Frivaldo may be considered STATELESS on the basis of his claim
that he "had long renounced and had long abandoned his American citizenship - long before May 8,
1985" - is untenable, for the following reasons: first, it is based on Frivaldo's unproven, self-serving
allegation; second, informal renunciation or abandonment is not a ground to lose American
citizenship; and third, simply put, never did the status of a STATELESS person attach to Frivaldo.

Statelessness may be either de jure, which is the status of individuals stripped of their nationality by
their former government without having an opportunity to acquire another; or de facto, which is the
status of individuals possessed of a nationality whose country does not give them protection outside
their own country, and who are commonly, albeit imprecisely, referred to as refugees (JORGE R.
COQUIA, et al., Conflict of Laws Cases, Materials and Comments, 1995 ed., 290).

Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the Status of
Stateless Persons (Philippine Treaty Series, Compiled and Annotated by Haydee B. Yorac, vol. III,
363), a stateless person is defined as "a person who is not considered as a national by any State
under the operation of its law." However, it has not been shown that the United States of America
ever ceased to consider Frivaldo its national at any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.

VI

Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice Reynato S.
Puno. I am absolutely happy to join him in his statement that "[t]he sovereignty of our people is the
primary postulate of the 1987 Constitution" and that the said Constitution is "more people-oriented,"
"borne [as it is] out of the 1986 people power EDSA revolution." I would even go further by saying
that this Constitution is pro-God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16;
Article XI, Section 1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI,
Sections 5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1, 4(2),
13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3);
Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II, Section 12), and pro-
family (Article II, Section 12; Article XV).

Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond what I
perceive to be the reasonable constitutional parameters. The doctrine of people's sovereignty is
founded on the principles of democracy and republicanism and refers exclusively to the sovereignty
of the people of the Philippines. Section 1 of Article II is quite clear on this, thus:

Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in

the people and all government authority emanates from them.

And the Preamble makes it clear when it solemnly opens it with a clause "We, the sovereign
Filipino people. . ." Thus, this sovereignty is an attribute of the Filipino people as one
people, one body.

That sovereign power of the Filipino people cannot be fragmentized by looking at it as the supreme
authority of the people of any of the political subdivisions to determine their own destiny; neither can
we convert and treat every fragment as the whole. In such a case, this Court would provide the
formula for the division and destruction of the State and render the Government ineffective and
inutile. To illustrate the evil, we may consider the enforcement of laws or the pursuit of a national
policy by the executive branch of the government, or the execution of a judgment by the courts. If
these are opposed by the overwhelming majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law, national policy, or judgment must not be
enforced, implemented, or executed in the said province or municipality. More concretely, if, for
instance, the vast majority of the people of Batanes rise publicly and take up arms against the
Government for the purpose of removing from the allegiance to the said Government or its laws, the
territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other
armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives, then those who did so -- and which are composed of the vast majority of the
people of Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion in
violation of Article 134 of the Revised Penal Code because of the doctrine of peoples' sovereignty.
Indeed, the expansion of the doctrine of sovereignty by investing upon the people of a mere political
subdivision that which the Constitution places in the entire Filipino people, may be disastrous to the
Nation.

So it is in this case if we follow the thesis in the concurring opinion. Thus, simply because Frivaldo
had obtained a margin of 20,000 votes over his closest rival, Lee, i.e., a vast majority of the voters of
Sorsogon had expressed their sovereign will for the former, then this Court must yield to that will and
must, therefore, allow to be set aside, for Frivaldo, not just the laws on qualifications of candidates
and elective officials and naturalization and reacquisition of Philippine citizenship, but even the final
and binding decisions of this Court affecting him.

This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No. 120295 and
GRANT G.R. No. 123755.

1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente; Comm. Graduacion A.R.

Claravall, concurring, and Comm. Julio F. Desamito, dissenting.

2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee, respondent; rollo, pp.
110-129.

3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A. Salazar-

Fernando, Manolo B. Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo certified that
"Commissioner Julio F. Desamito was on official travel at the time of the deliberation and resolution
of this case. However, the Commission has reserved to Comm. Desamito the right to submit a
dissenting opinion." Rollo, pp. 159-171.

4 Rollo, pp. 46-49.

5 Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedios A. Salazar-
Fernando,ponente; Comm. Teresita Dy-Liaco Flores, concurring, and Comm. Manolo B. Gorospe
("on official business").

6 Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No. 87193, Frivaldo
vs. Commission on Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court, by reason of
such naturalization, declared Frivaldo "not a citizen of the Philippines and therefore DISQUALIFIED
from serving as Governor of the Province of Sorsogon." On February 28, 1992, the Regional Trial
Court of Manila granted the petition for naturalization of Frivaldo. However, the Supreme Court in
G.R. No. 104654, Republic of the Philippines vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994),
overturned this grant, and Frivaldo was "declared not a citizen of the Philippines" and ordered to
vacate his office. On the basis of this latter Supreme Court ruling, the Comelec disqualified Frivaldo
in SPA No. 95-028.
7 Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners, namely, Regalado
E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe, Graduacion A. Reyes-Claravall,
Julio F. Desamito and Teresita Dy-Liaco Flores; rollo, pp. 56-57.

8 Rollo, p. 60.

9 Rollo, pp. 61-67.

10 Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray votes", and thus
Lee was held as having garnered the "highest number of votes."

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

12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).

13 Rollo, pp. 110-128.

14 Rollo, pp. 159-170.

15 Rollo, pp. 16-17; petition, pp. 14-15.

16 Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.

17 Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.

18 Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec Commissioners.

19 Republic Act No. 7160.

20 See footnote no. 6, supra.

21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p. 254, observed
that "(i)f he (Frivaldo) really wanted to disavow his American citizenship and reacquire Philippine
citizenship, petitioner should have done so in accordance with the laws of our country. Under C.A.
No. 63 as amended by C.A. No. 473 and P.D. 725, Philippine citizenship may be reacquired by direct
act of Congress, by naturalization, or by repatriation."

22 Supra, p. 794.

23 Petition, p. 27; rollo, p. 29.

24 The full text of said memorandum reads as follows:

MEMORANDUM

TO : The Solicitor General

The Undersecretary of Foreign Affairs

The Director-General
National Intelligence Coordinating Agency

The previous administration's practice of granting citizenship by Presidential Decree or any other
executive issuance, and the derivative administrative authority thereof, poses a serious and
contentious issue of policy which the present government, in the exercise of prudence and sound
discretion, should best leave to the judgment of the first Congress under the 1987 Constitution.

In view of the foregoing, you as Chairman and members of the Special Committee on Naturalization,
are hereby directed to cease and desist from undertaking any and all proceedings within your
functional area of responsibility, as defined in Letter of Instructions No. 270 dated April 11, 1975, as
amended, Presidential Decree No. 836 dated December 3, 1975, as amended, and Presidential
Decree No. 1379 dated May 17, 1978, relative to the grant of citizenship under the said laws, and
any other related laws, orders, issuances and rules and regulations.

(Sgd.) Corazon C. Aquino

Manila, March 27, 1987.

25 Art. 7, Civil Code of the Philippines.

26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995).

27 Petition, p. 28; rollo, p. 30.

28 The aforesaid Manifestation reads as follows:

MANIFESTATION

The Solicitor General, as Chairman of the Special Committee on Naturalization, hereby manifests
that the following persons have been repatriated by virtue of Presidential Decree No. 725, since
June 8, 1995:

1. Juan Gallanosa Frivaldo R-000900

2. Manuel Reyes Sanchez 901

3. Ma. Nelly Dessalla Ty 902

4. Terry Herrera and

Antonio Ching 903

5. Roberto Salas Benedicto 904

6. Winthrop Santos Liwag 905

7. Samuel M. Buyco 906

8. Joselito Holganza Ruiz 907

9. Samuel Villanueva 908

10. Juan Leonardo Collas, Jr. 909

11. Felicilda Otilla Sacnanas-Chua 910

29 The text of P.D. 725 is reproduced below:

PRESIDENTIAL DECREE No. 725

PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR PHILIPPINE
CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN FILIPINOS.

WHEREAS, there are many Filipino women who had lost their Philippine citizenship by marriage to
aliens;

WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to retain her
Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced
her Philippine citizenship, such provision of the new Constitution does not apply to Filipino women
who had married aliens before said constitution took effect;

WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation of Filipino women
who lost their citizenship by reason of their marriage to aliens only after the death of their husbands
or the termination of their marital status; and

WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but now desire
to re-acquire Philippine citizenship;

Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby decree and order that: (1) Filipino women who
lost their Philippine citizenship by marriage to aliens; and (3) natural born Filipinos who have lost
their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with
the Special Committee on Naturalization created by Letter of Instructions No. 270, and, if their
applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired Philippine citizenship. The Commission on
Immigration and Deportation shall thereupon cancel their certificate of registration.

The aforesaid Special Committee is hereby authorized to promulgate rules and regulations and
prescribe the appropriate forms and the required fees for the effective implementation of this Decree.

This Decree shall take effect immediately.

Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen hundred and
seventy-five.

30 See footnote no. 6, supra.

31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
32 The term of office of all local elective officials elected after the effectivity of this Code shall be
three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, . . ."
Sec. 43, Local Government Code.

33 96 Phil. 447, 453 (1955).

34 The following are excerpts from the transcript of stenographic notes of the oral argument held on
March 19, 1996:

JUSTICE PANGANIBAN: Mr. Counsel, it is your position then that the candidate
should be a citizen at the time of proclamation?

ATTY. BRILLANTES: Yes, Your Honor, it is required that he must be a citizen at the
time of proclamation and not only that, at the time that he assumes the office he must
have the continuing qualification as a citizen.

JUSTICE PANGANIBAN: Should that not be reckoned from the time of filing of
certificate of candidacy or at least the day of the election?

ATTY. BRILLANTES: Yes, Your Honor, there are positions taken that it should be
reckoned from the date of certificate of candidacy as in the case of qualification for
Batasang Pambansa before under B.P. 53 - it says that for purposes of residence it
must be reckoned . . . from the time of the filing of the certificate, for purposes of age,
from the time of the date of the election. But when we go over all the provisions of
law under current laws, Your Honor, there is no qualification requirement insofar as
citizenship is concern(ed) as to when, as to when you should be a citizen of the
Philippines and we say that if there is no provision under any existing law which
requires that you have to be a citizen of the Philippines on the date of the filing or on
the date of election then it has to be equitably interpreted to mean that if you are
already qualified at the time that the office is supposed to be assumed then you
should be allowed to assume the office.

JUSTICE PANGANIBAN: Is it not also true that under the Local Autonomy Code the
candidate should also be a registered voter and to be a registered voter one must be
a citizen?

ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr. Frivaldo has always been a
registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again
in 1995. In fact, his eligibility as a voter was questioned but the Court dismissed (sic)
his eligibility as a voter and he was allowed to vote as in fact, he voted in all the
previous elections including on May 8, 1995.

JUSTICE PANGANIBAN: But the fact that he voted does not make him a citizen. The
fact is, he was declared not a citizen by this Court twice.

ATTY. BRILLANTES: That is true, Your Honor, we admit that he has been twice
declared not citizen and we admit the ruling of the Supreme Court is correct but the
fact is, Your Honor, the matter of his eligibility to vote as being a registered voter was
likewise questioned before the judiciary. There was a ruling by the Municipal Court,
there was a ruling by the Regional Trial Court and he was sustained as a valid voter,
so he voted.
 JUSTICE PANGANIBAN: I raised this question in connection with your contention
that citizenship should be determined as of the time of proclamation and not as of the
time of the election or at the time of the filing of the certificate of candidacy.

ATTY. BRILLANTES: That is true, Your Honor.

JUSTICE PANGANIBAN: And is it your contention that under the law, particularly the
Local Autonomy Code, the law does not specify when citizenship should be
possessed by the candidate, is that not correct?

ATTY. BRILLANTES: That is right, Your Honor, there is no express provision.

JUSTICE PANGANIBAN: I am also asking you that under the Local Autonomy Code
the candidate for governor or for other local positions should be a voter and to be a
voter one must be a citizen?

ATTY. BRILLANTES: That is right, Your Honor, but the fact of voting is not an issue
here because he was allowed to vote and he did in fact vote and in fact, he was a
registered voter. (TSN, March 19, 1996.)

35 Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus Election Code of the
Philippines", as amended, provides for the various qualifications of voters, one of which is Filipino
citizenship.

36 Comment, p. 11; rollo, p. 259.

37 See footnote no. 33.

38 Section 253 reads as follows:

Sec. 253. Petition for quo warranto. -- Any voter contesting the election of any member of the
Congress, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten
days after the proclamation of the results of the election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec.
189, par. 2, 1978 EC).

Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or
of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the
regional trial court or metropolitan or municipal trial court, respectively, within ten days after the
proclamation of the results of the election. (Art. XVIII, Sec. 189, par. 2, 1978 EC).

39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500 (May 25, 1988), and Nilo
vs. Court of Appeals, 128 SCRA 519 (April 2, 1984).

40 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I, 1990 ed.,
p. 23 states:

Exceptions to Rule. -- Statutes can be given retroactive effect in the following cases: (1) when the
law itself so expressly provides, (2) in case of remedial statutes, (3) in case of curative statutes, (4)
in case of laws interpreting others, and (5) in case of laws creating new rights.
41 Id., p. 25.

42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.

43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208, 210 (1953).

44 Memorandum, p. 9.

45 73 Am Jur 2d, Sec. 351, p. 488.

46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.

47 Art. 10, Civil Code of the Philippines.

48 Based on the "Corrected Compliance" dated May 16, 1996 filed by the Solicitor General, it
appears that, excluding the case of Frivaldo, the longest interval between date of filing of an
application for repatriation and its approval was three months and ten days; the swiftest action was a
same-day approval.

49 Sec. 40. Disqualifications. -- The following persons are disqualified from running for any elective
local position:

xxx xxx xxx

(d) Those with dual citizenship;"

50 p. 11; rollo, p. 259.

51 Resolution, p. 12; rollo, p. 121.

52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17, 1993); Arao vs.
Commission on Elections, 210 SCRA 290 (June 23, 1992).

53 The dispositive portion of said Resolution reads:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is
DISQUALIFIED to run for the office of Provincial Governor of Sorsogon on the ground that he is not
a citizen of the Philippines. Accordingly respondent's certificate of candidacy is cancelled.

54 Petition, p. 19; rollo, p. 21.

55 Resolution promulgated on December 19, 1995, p. 7; rollo, p. 116.

56 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim Yao vs. Commissioner of
Immigration, L-21289, October 4, 1971.

57 Art. IX, Sec. 2.

58 SPC No. 95-317 is entitled "Annulment of Proclamation" and contains the following prayer:
WHEREFORE, it is most respectfully prayed of this Honorable Commission that after due notice and
hearing an Oder (sic) /Resolution/Decision be issued as follows:

a) Annulling/setting aside the 30 June 1995 proclamation of respondent as the duly election (sic),
Governor of Sorsogon for being contrary to law;

b) Ordering the proclamation of the petitioner as duly elected governor of Sorsogon;

xxx xxx xxx

59 229 SCRA 666, 674 (February 4, 1994).

60 211 SCRA 297, 309 (July 3, 1992).

61 G.R. No. 120265, September 18, 1995.

62 Supra, at p. 312.

63 See footnotes 2 and 3.

64 174 SCRA 245, 254 (June 23, 1959).

65 Salonga and Yap, Public International Law, 1966 ed., p. 239.

66 In Espinosa vs. Aquino, (Electoral Case No. 9, Senate Electoral Tribunal [SET]), the election of
the late Senator Benigno S. Aquino, Jr. was upheld, despite his not being of the required age on the
day of the election, although he celebrated his thirty-fifth birthday before his proclamation. Much
later, in 1990, this Court held inAznar vs. Comelec (185 SCRA 703, May 25, 1990) that even if Emilio
"Lito" Osmea held an Alien Certificate of Registration as an American citizen, he was still not
disqualified from occupying the local elective post of governor, since such certificate did not preclude
his being "still a Filipino." The holding in Aquino was subsequently nullified by the adoption of the
1987 Constitution (Art. VI, Sec. 3), which specified that the age qualification must be possessed on
the day of the elections, and not on the day of the proclamation of the winners by the board of
canvassers. On the other hand, Sec. 40 of Republic Act No. 7160 (Local Government Code of 1991)
which took effect on January 1, 1992, provides that those with dual citizenship are disqualified from
running for any elective local position, and effectively overturns the ruling in Aznar. But the point is
that to the extent possible, and unless there exist provisions to the contrary, the laws have always
been interpreted to give fullest effect to the political will.

67 Benito vs. Commission on Elections, 235 SCRA 436, 442 (August 17, 1994).

68 This antagonism was clearly present in the two earlier cases involving Frivaldo. See footnote no.
6.

PUNO, J., concurring:

1 The 1987 Constitution added the word "democratic" in the statement of the principle.

2 Section 24(a) of the Tydings-McDuffie Law which authorized the Filipino people to draft a
Constitution in 1934 required that the "constitution formulated and drafted shall be republican in
form."
This Court has observed that even before the Tydings-McDuffie Law, the Philippine Bill and the
Jones Law have ". . . extended the powers of a republican form of government modeled after that of
the United States to the Philippines." Roa v. Collector of Customs, 23 Phil. 315, 340 [1912], Severino
v. Gov. General, 16 Phil. 366, 383 [1910], US v. Bull, 15 Phil. 7, 27 [1910].

3 Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation v. Southern Kan. R. Co., 33 F. 900,
906.

4 Dean of the UP College of Law; later President of U.P., and Delegate to the 1971 Constitutional
Convention.

5 Since, Philippine Political Law, Principles and Concepts, 1954, ed., p. 22.

6 Barker, Principles of Social and Political Theory, p. 59 (1952 ed.).

7 118 US 356.

8 Cruz, Philippine Political Law, p. 49, [1991 ed.].

9 Sinco, op. cit., pp. 23-24.

10 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.

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

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

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

MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza
III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,275 1

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

In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground
that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual 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. 5The 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 Osmea 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. 1wphi1.nt

SO ORDERED.
Davide, Jr., C.J., Romer

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,

vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.

DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the
Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the
Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the
elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on
the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already
granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence
of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued
that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation
shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to
fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000
allegedly terminated his probation and restored to him all the civil rights he lost as a result of his
conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary
hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified
from running for Punong Barangay.
The Comelec First Division adopted this recommendation. On motion for reconsideration filed with
the Comelecen banc, the Resolution of the First Division was affirmed. According to the Comelec en
banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for
an offense involving moral turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence, are disqualified from running for any
elective local position. 5 Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did not affect his disqualification from
running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take
precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is
a much later enactment and a special law setting forth the qualifications and disqualifications of
elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies
only to those who have served their sentence and not to probationers because the latter do not
serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the
Local Government Code because it is a special law which applies only to probationers. Further, even
assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes
an implied pardon of his previous misconduct.

In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor
General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by
ruling that conviction for an offense involving moral turpitude stands even if the candidate was
granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and
remains totally unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out
material differences between his case and Dela Torre v. Comelec which allegedly warrant a
conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for
violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of
Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for
probation nearly four (4) years after his conviction and only after appealing his conviction, such that
he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified
therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec.
40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two (2)
years after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence; [Emphasis supplied.]

....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the
crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the
first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime
involving moral turpitude was never raised in the petition for disqualification because the ground
relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged
disqualification from running for a local elective office within two (2) years from his discharge from
probation after having been convicted by final judgment for an offense punishable by Four (4)
Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the
crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue
being whether Morenos sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the
grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government
Code was based primarily on the finding that the crime of fencing of which petitioner was convicted
involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase
"within two (2) years after serving sentence" should have been interpreted and understood to apply
both to those who have been sentenced by final judgment for an offense involving moral
turpitude and to those who have been sentenced by final judgment for an offense punishable by one
(1) year or more of imprisonment. The placing of the comma (,) in the provision means that the
phrase modifies both parts of Sec. 40(a) of the Local Government Code.

The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we
should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled
to probation because he appealed his conviction to the Regional Trial Court which, however,
affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the
alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or
opportunism on the part of an accused who, although already eligible, did not at once apply for
probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase
"service of sentence," understood in its general and common sense, means the confinement of a
convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and
unambiguous provision, however, has spawned a controversy worthy of this Courts attention
because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the
law to include even those who did not serve a day of their sentence because they were granted
probation.
Moreno argues, quite persuasively, that he should not have been disqualified because he did not
serve the adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as
the accessory penalties of suspension from public office and from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that petitioner refrain from continuing with
her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period 11 imposed upon Moreno were similarly suspended upon the grant
of probation.

It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation
suspends the execution of the sentence. During the period of probation, 12 the probationer does not
serve the penalty imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order. 13

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case.
They focused on the fact that Morenos judgment of conviction attained finality upon his application
for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec.
40(a) of the Local Government Code unequivocally disqualifies only those who have been
sentenced by final judgment for an offense punishable by imprisonment of one (1) year or
more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of
the grant of probation which, we reiterate, should not be equated with service of sentence, should
not likewise be disqualified from running for a local elective office because the two (2)-year period of
ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position.
Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his
liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno
was finally discharged upon the courts finding that he has fulfilled the terms and conditions of his
probation, his case was deemed terminated and all civil rights lost or suspended as a result of his
conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives
room for judicial interpretation, 14 our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the
intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to
disqualify those who have been granted probation. The Courts function, in the face of this seeming
dissonance, is to interpret and harmonize the Probation Law and the Local Government
Code. Interpretare et concordare legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or
immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he was convicted. 15 Thus, the
Probation Law lays out rather stringent standards regarding who are qualified for probation. For
instance, it provides that the benefits of probation shall not be extended to those sentenced to serve
a maximum term of imprisonment of more than six (6) years; convicted of any offense against the
security of the State; those who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less
than P200.00; those who have been once on probation; and those who are already serving sentence
at the time the substantive provisions of the Probation Law became applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code
covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not specifically disqualify probationers
from running for a local elective office. This omission is significant because it offers a glimpse into
the legislative intent to treat probationers as a distinct class of offenders not covered by the
disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991,
some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the
enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to
have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification
from holding public office. That it chose not to include probationers within the purview of the
provision is a clear expression of the legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to
the Local Government Code. While the Local Government Code is a later law which sets forth the
qualifications and disqualifications of local elective officials, the Probation Law is a special legislation
which applies only to probationers. It is a canon of statutory construction that a later statute, general
in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special
provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the
disqualification to include Moreno, the Comelec committed an egregious error which we here
correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao,
Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the
crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of
Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the
poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where
he said that "it would be far better to err in favor of popular sovereignty than to be right in complex
but little understood legalisms."

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en

banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well
as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The
Commission on Elections is directed to proceed in accordance with this Decision. No
pronouncement as to costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 154512 November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of
Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA
Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer
Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA,
JR. respondents.

-----------------------------

G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.

-----------------------------

G.R. Nos. 155083-84 November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents.

DECISION

CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari1 seeking the reversal of the resolutions issued by
the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for mayor of
Puerto Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto
Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the
Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate
the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto
Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn,
president of the Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which
declared its loss of confidence in Socrates and called for his recall. The PRA requested the
COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall
Resolution.

On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC),
to nullify and deny due course to the Recall Resolution.

On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit
Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled the
recall election on September 7, 2002.

On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited acts in connection with the recall election. The
COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10
days.

On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy
for mayor in the recall election.

On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity)
filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from
running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain
Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also
seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another
petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all anchored on the ground that "Hagedorn is
disqualified from running for a fourth consecutive term, having been elected and having served as
mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for
the same post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.

In a resolution promulgated on September 20, 2002, the COMELEC's First Division 4 dismissed for
lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the
recall election. The COMELEC also reset the recall election from September 7, 2002 to September
24, 2002.

On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for
reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn
qualified to run in the recall election.

Hence, the instant consolidated petitions.

G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M.
No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election
on September 7, 2002.

Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of
the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of
the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally
deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their
respective constituents; (4) the adoption of the resolution was exercised with grave abuse of
authority; and (5) the PRA proceedings were conducted in a manner that violated his and the public's
constitutional right to information.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21,
2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-
day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on
September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days
to campaign.

In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7,
2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from
September 7, 2002 within which to campaign.

Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the
candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the
COMELEC reset the recall election to September 24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002
and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for
mayor in the recall election. They likewise prayed for the issuance of a temporary restraining order to
enjoin the proclamation of the winning candidate in the recall election.

Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's
qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions
against a fourth consecutive term for elective local officials.

In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the Court.
Petitioners were required to post aP20,000 bond.

On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention
seeking the same reliefs as those sought by Adovo, Gilo and Ollave.

In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238
votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes,
respectively.

Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning
candidate and to allow him to assume office to give effect to the will of the electorate.

On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention.

The Issues

The issues for resolution of the Court are:

 1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving
due course to the Recall Resolution and scheduling the recall election for mayor of Puerto
Princesa.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.

In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in
fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002
and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as
prayed for by petitioner.

First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the
Recall Resolution despite the absence of notice to 130 PRA members and the defective service of
notice to other PRA members. The COMELEC, however, found that

"On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor
Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof
pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I
and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached
to the Petition and marked as Annex "G" of Volumes II and III of the Petition.

Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos
establishing the same were attached to the Petition and marked as Annex "H". The proponents
likewise utilized the broadcast mass media in the dissemination of the convening of the PRA.

Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25
names of provincial elective officials, print and broadcast media practitioners, PNP officials,
COMELEC city, regional and national officials, and DILG officials].

xxx

The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that
upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, x x x
the majority of all members of the PRA concerned approved said resolution.' She likewise certified
'that not a single member/signatory of the PRA complained or objected as to the veracity and
authenticity of their signatures.'

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10
July 2002, stated, 'upon proper review, all documents submitted are found in order.'

The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following
recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof
approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.'

x x x ."

This Court is bound by the findings of fact of the COMELEC on matters within the competence and
expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v.
COMELEC,5 which also dealt with alleged defective service of notice to PRA members, we ruled that

"Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature,
and the determination of the same is therefore a function of the COMELEC. In the absence of patent
error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual
findings of the COMELEC, based on its own assessments and duly supported by gathered evidence,
are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of
the same."

In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are
patently erroneous.

Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July
2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant consideration considering that
when the PRA members adopted the Recall Resolution their terms of office had not yet expired.
They were all de jure sangguniang barangay members with no legal disqualification to participate in
the recall assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated his
constitutional right to information on matters of public concern. Socrates, however, admits receiving
notice of the PRA meeting and of even sending his representative and counsel who were present
during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the
Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance
sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto
Princesa. Socrates had the right to examine and copy all these public records in the official custody
of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right.
There is no legal basis in Socrates' claim that respondents violated his constitutional right to
information on matters of public concern.

Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity
of the Recall Resolution and in scheduling the recall election on September 24, 2002.

Second Issue: Hagedorn's qualification to run for mayor

in the recall election of September 24, 2002.

The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution,
which states:

"Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected."

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the
Local Government Code, which provides:

"Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official was
elected."

These constitutional and statutory provisions have two parts. The first part provides that an elective
local official cannot serve for more than three consecutive terms. The clear intent is that only
consecutive terms count in determining the three-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the continuity of service. The
clear intent is that involuntary severance from office for any length of time interrupts continuity of
service and prevents the service before and after the interruption from being joined together to form
a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be
"no immediate reelection" after three terms. This is clear from the following deliberations of the
Constitutional Commission:

"THE PRESIDENT: The Acting Floor Leader is recognized.

MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election after a total of
three terms and Alternative No. 2 where there is no immediate reelection after three
successive terms."7
The Journal of the Constitutional Commission reports the following manifestation on the term of
elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative
No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate
reelection after three successive terms)."8

The framers of the Constitution used the same "no immediate reelection" question in voting for the
term limits of Senators9 and Representatives of the House.10

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any
other subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional Commission evidently show that the
prohibited election referred to by the framers of the Constitution is the immediate reelection after the
third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three-year full term
following the three-term limit, then Senators should also be prohibited from running in any election
within the six-year full term following their two-term limit. The constitutional provision on the term limit
of Senators is worded exactly like the term limit of elective local officials, thus:

"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected."11

In the debates on the term limit of Senators, the following exchange in the Constitutional Convention
is instructive:

"GASCON:12 I would like to ask a question with regard to the issue after the second term. We
will allow the Senator to rest for a period of time before he can run again?

DAVIDE:13 That is correct.

GASCON: And the question that we left behind before - if the Gentleman will remember -
was: How long will that period of rest be? Will it be one election which is three years or one
term which is six years?
 DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that
during the election following the expiration of the first 12 years, whether such election will be
on the third or on the sixth year thereafter, this particular member of the Senate can run. So,
it is not really a period of hibernation for six years. That was the Committee's stand.

GASCON: So, effectively, the period of rest would be three years at the least." 14 (Emphasis
supplied)

The framers of the Constitution thus clarified that a Senator can run after only three years 15 following
his completion of two terms. The framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election, during the six-year period
following the two term limit. The framers of the Constitution did not intend "the period of rest" of an
elective official who has reached his term limit to be the full extent of the succeeding term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in
2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served
in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution
and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term
limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in
the 2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election
of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly
an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June
30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless
continuation of his previous three consecutive terms as mayor. One cannot stitch together
Hagedorn's previous three-terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001
to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as
mayor.

In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in
this manner:

"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected." The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the people's choice and grant their elected official full service of a term
is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in
the computation of the three-term limit; conversely, involuntary severance from office for any length
of time short of the full term provided by law amounts to an interruption of continuity of service. x x
x." (Emphasis supplied)

In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of
three years, constituted an interruption in the continuity of his service as mayor. The Constitution
does not require the interruption or hiatus to be a full term of three years. The clear intent is that
interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an
elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that
an interruption consisting of a portion of a term of office breaks the continuity of service of an
elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as
mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G.
Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term
of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001
elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification
on the ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two
terms so that he was deemed to have already served three consecutive terms as mayor. The Court
ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30,
1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as
mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this
interruption, there having been a break of almost two years during which time Tagarao was the
mayor.

We held in Adormeo that the period an elective local official is out of office interrupts the continuity
of his service and prevents his recall term from being stitched together as a seamless continuation of
his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months
Hagedorn was out of office interrupted his continuity of service and prevents his recall term from
being stitched together as a seamless continuation of his previous three consecutive terms. The only
difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the
interruption occurred after the first two consecutive terms. In the instant case, the interruption
happened after the first three consecutive terms. In both cases, the respondents were seeking
election for a fourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the
recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor.
If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the
2001 elections because he would already have served three consecutive terms prior to the 2001
elections. One who wins and serves a recall term does not serve the full term of his predecessor but
only the unexpired term. The period of time prior to the recall term, when another elective official
holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule
that the winner in the recall election cannot be charged or credited with the full term of three years
for purposes of counting the consecutiveness of an elective official's terms in office.

In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of
Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the
recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth
consecutive term. But to consider Hagedorn's recall term as a full term of three years, retroacting to
June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore
reality. This Court cannot declare as consecutive or successive terms of office which historically and
factually are not.

Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly
curtails the freedom of the people to choose their leaders through popular elections. The concept of
term limits is in derogation of the sovereign will of the people to elect the leaders of their own
choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will
of the people. As this Court aptly stated in Borja, Jr. v. Comelec:

"Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election following the
expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from]
whom the people will choose' as a result of the proposed absolute disqualification, considering that
the draft constitution contained provisions 'recognizing people's power.'" 19 (Emphasis supplied)

A necessary consequence of the interruption of continuity of service is the start of a new term
following the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit.
This is clear from the following discussion in the Constitutional Commission:

"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected
would have to serve the unexpired portion of the term. Would that mean that serving the unexpired
portion of the term is already considered one term? So, half a term, which is actually the correct
statement, plus one term would disqualify the Senator concerned from running? Is that the meaning
of this provision on disqualification, Madam President?

DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the Senator and two more terms for
the Members of the Lower House."21

Although the discussion referred to special elections for Senators and Representatives of the House,
the same principle applies to a recall election of local officials. Otherwise, an elective local official
who serves a recall term can serve for more than nine consecutive years comprising of the recall
term plus the regular three full terms. A local official who serves a recall term should know that the
recall term is in itself one term although less than three years. This is the inherent limitation he takes
by running and winning in the recall election.

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for
mayor of Puerto Princesa because:

1. Hagedorn is not running for immediate reelection following his three consecutive terms as
mayor which ended on June 30, 2001;

2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30,
2001 to September 24, 2002 during which time he was a private citizen;

3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term
is not a fourth consecutive term; and

4. Term limits should be construed strictly to give the fullest possible effect to the right of the
electorate to choose their leaders.

WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The
temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation
of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is
lifted. No costs.

SO ORDERED.

Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio-Morales, and

Callejo, Sr., JJ., concur.
Davide, Jr., C.J., see concurring and dissenting opinion.
Puno, J., see concurring opinion.
Vitug, J., in the result.
Mendoza, J., in the result, without to the filing of separate opinion.
Austria-Martinez, J., on leave.
Corona, J., no part - prior consultation.
Azcuna, J., joins the separate opinion of C.J. Davide.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 120099 July 24, 1996

EDUARDO T. RODRIGUEZ, petitioner,

vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

FRANCISCO, J.:p

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr.

(Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon
Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected
governor.

Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC
(EPC No. 92-28). Marquez revealed that Rodriguez left the United States where a charge,
filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal
Court for fraudulent insurance claims, grand theft and attempted grand theft of personal
property. Rodriguez is therefore a "fugitive from justice" which is a ground for his
disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160),
so argued Marquez.

The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of
February 2, 1993, and likewise denied a reconsideration thereof.

Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition
for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez, is
a "fugitive from justice" as contemplated by Section 40 (e) of the Local Government Code
based on the alleged pendency of a criminal charge against him (as previously mentioned).

In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"'
promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and
hereinafter referred to as theMARQUEZ Decision, declared that:

. . . , "fugitive from justice" includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid prosecution.
This definition truly finds support from jurisprudence (. . .), and it may be so
conceded as expressing the general and ordinary connotation of the term. 1

Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not
passed upon by the Court. That task was to devolve on the COMELEC upon remand of the
case to it, with the directive to proceed therewith with dispatch conformably with
the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an
"Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to
which was attached a certification from the Commission on Immigration showing that
Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the institution of
the criminal complaint filed against him before the Los Angeles court. The Court however
denied a reconsideration of the MARQUEZ Decision.

In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same
position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for
disqualification before the COMELEC, based principally on the same allegation that
Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was
filed by Marquez on April 11, 1995 when Rodriguez' petition forcertiorari (112889) from
where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the
Court.

On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC
promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA
NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the
COMELEC explained that:

1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases

2. the parties, facts and issue involved are identical in both cases

3. the same evidence is to be utilized in both cases in determining the common issue of
whether Rodriguez is a "fugitive from justice"

4. on consultation with the Commission En Banc, the Commissioners unanimously agreed

that a consolidated resolution of the two (2) cases is not procedurally flawed.

Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having
kept in mind theMARQUEZ Decision definition of "fugitive from justice", found Rodriguez to
be one. Such finding was essentially based on Marquez' documentary evidence consisting of

1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los
Angeles municipal court against Rodriguez, and

2. an authenticated copy of the felony complaint

which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the
hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion
for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived
his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The
COMELEC thus made the following analysis:

The authenticated documents submitted by petitioner (Marquez) to show the

pendency of a criminal complaint against the respondent (Rodriguez) in the
Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves petitioner's contention that the
 respondent is a fugitive from justice. The Commission cannot look with favor on
respondent's defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the filing of the
same nor was he aware that he was being proceeded against criminally. In a sense,
thru this defense, respondent implicitly contends that he cannot be deemed a fugitive
from justice, because to be so, one must be aware of the filing of the criminal
complaint, and his disappearance in the place where the long arm of the law, thru the
warrant of arrest, may reach him is predicated on a clear desire to avoid and evade
the warrant. This allegation in the Answer, however, was not even fortified with any
attached document to show when he left the United States and when he returned to
this country, facts upon which the conclusion of absence of knowledge about the
criminal complaint may be derived. On the contrary, the fact of arrest of respondent's
wife on November 6, 1985 in the United States by the Fraud Bureau investigators in
an apartment paid for respondent in that country can hardly rebut whatever
presumption of knowledge there is against the respondent. 2

And proceeding therefrom, the COMELEC, in the dispositive portion, declared:

WHEREFORE, considering that respondent has been proven to be fugitive from

justice, he is hereby ordered disqualified or ineligible from assuming and performing
the functions of Governor of Quezon Province. Respondent is ordered to immediately
vacate said office. Further, he is hereby disqualified from running for Governor for
Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for
the May 8, 1995 elections is hereby set aside.

At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election
for the position of governor.

On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation
which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers
nonetheless proclaimed Rodriguez on May 12, 1995.

The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the
May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of
the instant petition forcertiorari (G.R. No. 120099) on May 16, 1995.

On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of
Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in
Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).

Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995,
nullified Rodriguez' proclamation and ordered certain members of the Quezon Province
Provincial Board of Canvassers to explain why they should not be cited in contempt for
disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation.
But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until
after this Court has resolved the instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC
June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions
(Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively).

As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No.
120099) on July 13, 1995.

Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or
Preliminary Injunction" which sought to retain and enjoin Rodriguez "from exercising the
powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably thereon,
the Court in a Resolution dated August 8, 1995 issued a temporary restraining order.
Rodriguez' "Urgent Motion to Lift Temporary Restraining Order And/Or For Reconsideration"
was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion
was later on filed by Rodriguez which the Court also denied.

In a Resolution dated October 24, 1995, the Court

. . . RESOLVED to DIRECT the Chairman of the Commission on Elections

("COMELEC") to designate a Commissioner or a ranking official of the COMELEC to
RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner
Eduardo Rodriguez may be minded to present by way of refuting the evidence
heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which
can tend to establish petitioner's contention that he does not fall within the legal
concept of a "fugitive from justice." Private respondent Marquez may likewise, if he
so desires, introduce additional and admissible evidence in support of his own
position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be
applied in the reception of the evidence. The Chairman of the COMELEC shall have
the proceedings completed and the corresponding report submitted to this Court
within thirty (30) days from notice hereof.

The COMELEC complied therewith by filing before the Court, on December 26, 1995, a
report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein
the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT
a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus
making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving
at this new conclusion, the COMELEC opined that intent to evade is a material element of
the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case
because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985)
long before the criminal charge was instituted in the Los Angeles Court (November 12,
1985).

But the COMELEC report did not end there. The poll body expressed what it describes as
its "persistent discomfort" on whether it read and applied correctly the MARQUEZ
Decision definition of "fugitive from justice". So as not to miss anything, we quote the
COMELEC's observations in full:
. . . The main opinion's definition of a "fugitive from justice" "include not only those
who flee after conviction to avoid punishment but also those who, after being
charged, flee to avoid prosecution." It proceeded to state that:

This definition truly finds support from jurisprudence (Philippine Law

Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law
Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d
102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v.
Casaus 275 Pacific Reporter 2d p. 792), and it may be so conceded
as expressing the general and ordinary connotation of the term.

But in the majority of the cases cited, the definition of the term "fugitive from justice"
contemplates other instances not explicitly mentioned in the main opinion. Black's
Law Dictionary begins the definition of the term by referring to a "fugitive from justice"
as:

(A) person, who, having committed a crime, flees from jurisdiction of

the court where crime was committed or departs from his usual place
of abode and conceals himself within the district. . . .

Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from
justice" as:

. . . a person who, having committed or been charged with a crime in

one state, has left its jurisdiction and is found within the territory of
another when it is sought to subject him to the criminal process of the
former state. (our emphasis)

In Hughes v. Pflanz, the term was defined as:

a person who, having committed within a state a crime, when sought

for, to be subjected to criminal process, is found within the territory of
another state.

Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:

expression which refers to one having committed, or being accused,

of a crime in one jurisdiction and is absent for any reason from that
jurisdiction.

Specifically, one who flees to avoid punishment . . . (emphasis ours)

From the above rulings, it can be gleaned that the objective facts sufficient to
constitute flight from justice are: (a) a person committed a "crime" or has been
charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the
court where said crime was committed or his usual place of abode.
Filing of charges prior to flight is not always an antecedent requirement to label one a
"fugitive from justice". Mere commission of a "crime" without charges having been
filed for the same and flight subsequent thereto sufficiently meet the definition.
Attention is directed at the use of the word "crime" which is not employed to connote
guilt or conviction for the commission thereof. Justice Davide's separate opinion in
G.R. No. 112889 elucidates that the disqualification for being a fugitive does not
involve the issue of the presumption of innocence, the reason for disqualification
being that a person "was not brought within the jurisdiction of the court because he
had successfully evaded arrest; or if he was brought within the jurisdiction of the
court and was tried and convicted, he has successfully evaded service of sentence
because he had jumped bail or escaped. The disqualification then is based on
his flight from justice."

Other rulings of the United States Supreme Court further amplify the view that intent
and purpose for departure is inconsequential to the inquiry. The texts, which are
persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King
v. US (144 F. 2nd 729), citing Roberts v. Reilly(116 US 80) the United States
Supreme Court held:

. . . it is not necessary that the party should have left the state or the
judicial district where the crime is alleged to have been committed,
after an indictment found, or for the purpose of avoiding an
anticipated prosecution, but that, having committed a crime within a
state or district, he has left and is found in another jurisdiction
(emphasis supplied)

Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable
language:

The simple fact that they (person who have committed crime within a state) are not
within the state to answer its criminal process when required renders them, in legal
intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO.

112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE
UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES
MAKE PETITIONER A "FUGITIVE FROM JUSTICE".

From the foregoing discussions, the determination of whether or not Rodriguez is a

fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured
against the two instances mentioned in the main opinion, or is to be expanded as to
include other situations alluded to by the foreign jurisprudence cited by the Court. In
fact, the spirited legal fray between the parties in this case focused on each camp's
attempt to construe the Court's definition so as to fit or to exclude petitioner within the
definition of a "fugitive from justice". Considering, therefore, the equally valid yet
different interpretations resulting from the Supreme Court decision in G.R. No.
 112889, the Commission deems it most conformable to said decision to evaluate the
evidence in light of the varied constructions open to it and to respectfully submit the
final determination of the case to the Honorable Supreme Court as the final
interpreter of the law.

The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from
justice", the determination of which, as we have directed the COMELEC on two (2)
occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must
conform to how such term has been defined by the Court in the MARQUEZ Decision. To
reiterate, a "fugitive from justice":

. . . includes not only those who flee after conviction to avoid punishment but likewise
who, after being charged, flee to avoid prosecution.

The definition thus indicates that the intent to evade is the compelling factor that animates
one's flight from a particular jurisdiction. And obviously, there can only be an intent to
evade prosecution or punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the
Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of
Immigrations dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint in
the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest
warrant by the same foreign court, by almost five (5) months. It was clearly impossible for
Rodriguez to have known about such felony complaint and arrest warrant at the time he left the
US, as there was in fact no complaint and arrest warrant much less conviction to speak of
yet at such time. What prosecution or punishment then was Rodriguez deliberately running away
from with his departure from the US? The very essence of being a "fugitive from justice" under
the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez.

With that, the Court gives due credit to the COMELEC in having made the same analysis in
its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent
with such analysis made by the poll body that are equally formidable so as to merit their
adoption as part of this decision, to wit:

It is acknowledged that there was an attempt by private respondent to show

Rodriguez' intent to evade the law. This was done by offering for admission a
voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive)
on the alleged crimes committed which led to the filing of the charges against
petitioner. It was offered for the sole purpose of establishing the fact that it was
impossible for petitioner not to have known of said investigation due to its magnitude.
Unfortunately, such conclusion misleads because investigations of this nature, no
matter how extensive or prolonged, are shrouded with utmost secrecy to afford law
enforcers the advantage of surprise and effect the arrest of those who would be
charged. Otherwise, the indiscreet conduct of the investigation would be nothing
short of a well-publicized announcement to the perpetrators of the imminent filing of
charges against them. And having been forewarned, every effort to sabotage the
investigation may be resorted to by its intended objects. But if private respondent's
attempt to show Rodriguez' intent to evade the law at the time he left the United
States has any legal consequence at all, it will be nothing more than proof that even
private respondent accepts that intent to evade the law is a material element in the
definition of a fugitive.

The circumstantial fact that it was seventeen (17) days after Rodriguez' departure
that charges against him were filed cannot overturn the presumption of good faith in
his favor. The same suggests nothing more than the sequence of events which
transpired. A subjective fact as that of petitioner's purpose cannot be inferred from
the objective data at hand in the absence of further proof to substantiate such claim.
In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to
return to the Philippines was due to his desire to join and participate vigorously in the
political campaigns against former President Ferdinand E. Marcos. For indeed, not
long after petitioner's arrival in the country, the upheaval wrought by the political
forces and the avalanche of events which occurred resulted in one of the more
colorful events in the Philippine history. The EDSA Revolution led to the ouster of
former Pres. Marcos and precipitated changes in the political climate. And being a
figure in these developments, petitioner Rodriguez began serving his home province
as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then,
he was elected Governor in 1988 and continues to be involved in politics in the same
capacity as re-elected Governor in 1992 and the disputed re-election in 1995.
Altogether, these landmark dates hem in for petitioner a period of relentless,
intensive and extensive activity of varied political campaigns first against the
Marcos government, then for the governorship. And serving the people of Quezon
province as such, the position entails absolute dedication of one's time to the
demands of the office.

Having established petitioner's lack of knowledge of the charges to be filed against

him at the time he left the United States, it becomes immaterial under such
construction to determine the exact time when he was made aware thereof. While
the law, as interpreted by the Supreme Court, does not countenance flight from
justice in the instance that a person flees the jurisdiction of another state after
charges against him or a warrant for his arrest was issued or even in view of the
imminent filing and issuance of the same, petitioner's plight is altogether a different
situation. When, in good faith, a person leaves the territory of a state not his own,
homeward bound, and learns subsequently of charges filed against him while in the
relative peace and service of his own country, the fact that he does not subject
himself to the jurisdiction of the former state does not qualify him outright as a
fugitive from justice.

The severity of the law construed in the manner as to require of a person that he
subject himself to the jurisdiction of another state while already in his country or else
be disqualified from office, is more apparent when applied in petitioner's case. The
criminal process of the United States extends only within its territorial jurisdiction.
That petitioner has already left said country when the latter sought to subject him to
 its criminal process is hardly petitioner's fault. In the absence of an intent to evade
the laws of the United States, petitioner had every right to depart therefrom at the
precise time that he did and to return to the Philippines. Not justifiable reason existed
to curtail or fetter petitioner's exercise of his right to leave the United State and return
home. Hence, sustaining the contrary proposition would be to unduly burden and
punish petitioner for exercising a right as he cannot be faulted for the circumstances
that brought him within Philippine territory at the time he was sought to be placed
under arrest and to answer for charges filed against him.

Granting, as the evidence warrants, that petitioner Rodriguez came to know of the
charges only later, and under his circumstances, is there a law that requires
petitioner to travel to the United States and subject himself to the monetary burden
and tedious process of defending himself before the country's courts?

It must be noted that moral uprightness is not a standard too far-reaching as to

demand of political candidate the performance of duties and obligations that are
supererogatory in nature. We do not dispute that an alleged "fugitive from justice"
must perform acts in order not to be so categorized. Clearly, a person who is aware
of the imminent filing of charges against him or of the same already filed in
connection with acts he committed in the jurisdiction of a particular state, is under an
obligation not to flee said place of commission. However, as in petitioner's case, his
departure from the United States may not place him under a similar obligation. His
subsequent knowledge while in the Philippines and non-submission to the jurisdiction
of the former country does not operate to label petitioner automatically a fugitive from
justice. As he was a public officer appointed and elected immediately after his return
to the country, petitioner Rodriguez had every reason to devote utmost priority to the
service of his office. He could not have gone back to the United States in the middle
of his term nor could he have traveled intermittently thereto without jeopardizing the
interest of the public he serves. The require that of petitioner would be to put him in a
paradoxical quandary where he is compelled to violate the very functions of his
office.

However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier
quoted) seem to urge the Court to re-define "fugitive from justice". They espouse the broader
concept of the term and culled from foreign authorities (mainly of U.S. vintage) cited in
the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere
fact that he leaves the jurisdiction where a charge is pending against him, regardless of
whether or not the charge has already been filed at the time of his flight.

Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-
definition of"fugitive from justice" (which is at variance with the MARQUEZ Decision) and
proceed therefrom in resolving the instant petition. The various definitions of that doctrine
have been laid down in People v.Pinuila, 103 Phil. 992, 999, to wit:

"Law of the case" has been defined as the opinion delivered on a former appeal.
More specifically, it means that whatever is once irrevocably established as the
 controlling legal rule of decision between the same parties in the same case
continues to be the law of the case, whether correct on a general principles or not, so
long as the facts on which such decision was predicated continue to be the facts of
the case before the court. (21 C.J.S. 330)

It may be stated as a rule of general application that, where the evidence on a

second or succeeding appeal is substantially the same as that on the first or
preceding appeal, all matters, questions, points, or issues adjudicated on the prior
appeal are the law of the case on all subsequent appeals and will not be considered
or readjudicated therein. (5 C.J.S. 1267)

In accordance with the general rule stated in Section 1821, where, after a definite
determination, the court has remanded the cause for further action below, it will
refuse to examine question other than those arising subsequently to such
determination and remand, or other than the propriety of the compliance with its
mandate; and if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a second appeal.

As a general rule a decision on a prior appeal of the same case is held to be the law
of the casewhether that decision is right or wrong, the remedy of the party deeming
himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77).

Questions necessarily involved in the decision on a former appeal will be regarded

as the law of the case on a subsequent appeal, although the questions are not
expressly treated in the opinion of the court, as the presumption is that all the facts in
the case bearing on the point decided have received due consideration whether all or
none of them are mentioned in the opinion. (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not
Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant
petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo
warranto petition before the COMELEC). The instant petition is also an appeal from EPC No.
92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez'
petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as
the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we
specifically refer to the concept of "fugitive from justice" as defined in the main opinion in
the MARQUEZ Decision which highlights the significance of an intent to evade but which
Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize.

Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence
when hardly has the ink dried in the MARQUEZ Decision.

To summarize, the term "fugitive from justice" as a ground for the disqualification or
ineligibility of a person seeking to run for any elective local petition under Section 40(e) of the
Local Government Code, should be understood according to the definition given in
the MARQUEZ Decision, to wit:
 A "fugitive from justice" includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee to avoid prosecution.
(Emphasis ours.)

Intent to evade on the part of a candidate must therefore be established by proof that there
has already been a conviction or at least, a charge has already been filed, at the time of
flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the
Quezon Province gubernatorial post.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the
assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May
11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution
nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and
Canvassers to explain why they should not be cited in contempt) are SET ASIDE.

SO ORDERED.

Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganib