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Constitutional Law 1

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 134015 July 19, 1999

JUAN DOMINO, petitioner,vs.COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIOSAMSON and DIONISIO P. LIM, SR., respondent,LUCILLE CHIONGBIAN-SOLON, intervenor.

DAVIDE, JR., CJ.:

Challenged in this case for certiorariwith a prayer for preliminary injunction are the Resolution of 6 May 19981

of theSecond Division of the Commission on Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafterDOMINO) disqualified as candidate for representative of the Lone Legislative District of the Province of Sarangani in the11 May 1998 elections, and the Decision of 29 May 1998

2of the COMELEC en bancdenying DOMINO's motion for

reconsideration.

The antecedents are not disputed.1wphi1.nt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone LegislativeDistrict of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituencywhere he seeks to be elected for one (1) year and two (2) months immediately preceding the election.

3

On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samsonand Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy,which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondentsalleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registeredvoter, of the province of Sarangani where he seeks election. To substantiate their allegations, private respondentspresented the following evidence:

1. Annex "A" the Certificate of Candidacy of respondent for the position ofCongressman of the Lone District of the Province of Sarangani filed with the Office of theProvincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereofhe wrote his date of birth as December 5, 1953; in item 9, he claims he have resided inthe constituency where he seeks election for one (1) year and two (2) months; and, in

item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel,Sarangani;

2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22, 1997indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City;

3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated January15, 1997;

4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial& Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr.Conrado G. Butil, which reads:

In connection with your letter of even date, we are furnishing you herewith certified xeroxcopy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in thename of Juan Domino.

Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued toCarlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issuedto Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the nameof Marianita Letigio on September 8, 1997.


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5. Annex "E" The triplicate copy of the Community Tax Certificate No. 11132214C inthe name of Juan Domino dated September 5, 1997;

6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer andMunicipal Treasurer of Alabel, Sarangani, which states:

For easy reference, kindly turn-over to the undersigned for safekeeping, the stub ofCommunity Tax Certificate containing Nos. 11132201C-11132250C issued to you onJune 13, 1997 and paid under Official Receipt No. 7854744.

Upon request of Congressman James L. Chiongbian.

7. Annex "G" Certificate of Candidacy of respondent for the position of Congressmanin the 3rd District of Quezon City for the 1995 elections filed with the Office of theRegional Election Director, National Capital Region, on March 17, 1995, where, in item 4thereof, he wrote his birth date as December 22, 1953; in item 8 thereof his "residence inthe constituency where I seek to be elected immediately preceding the election" as 3

years and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182,Barangay Balara, Quezon City;

8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF REGISTRATIONRECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, onSeptember 22, 1997, stating among others, that "[T]he undersigned's previous residenceis at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein heis a registered voter" and "that for business and residence purposes, the undersignedhas transferred and conducts his business and reside at Barangay Poblacion, Alabel,Province of Sarangani prior to this application;"

9. Annex "I" Copy of the SWORN APPLICATION FOR OF CANCELLATION OF THE

VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed andsworn to on 22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani.4

For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has beenresiding in Sarangani since January 1997. In support of the said contention, DOMINO presented before the COMELECthe following exhibits, to wit:

1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as Lessor andAdministrator of the properties of deceased spouses Maximo and Remedios Dacaldacaland respondent as Lessee executed on January 15, 1997, subscribed and sworn tobefore Notary Public Johnny P. Landero;

2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of

sale executed by and between the heirs of deceased spouses Maximo and RemediosDacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent onNovember 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario;

3. Annex "3" True Carbon Xerox copy of the Decision dated January 19, 1998, of theMetropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO.725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters ofPrecinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino,Petitioners, -versus- Elmer M. Kayanan, Election Officer, Quezon City, District III, and theBoard of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,Respondents." The dispositive portion of which reads:

1. Declaring the registration of petitioners as voters of Precinct No. 4400-

A, Barangay Old Balara, in District III Quezon City as completelyerroneous as petitioners were no longer residents of Quezon City but ofAlabel, Sarangani where they have been residing since December 1996;

2. Declaring this erroneous registration of petitioners in Quezon City asdone in good faith due to an honest mistake caused by circumstancesbeyond their control and without any fault of petitioners;


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3. Approving the transfer of registration of voters of petitioners fromPrecint No. 4400-A of Barangay Old Balara, Quezon City to Precinct No.14A1 of Barangay Poblacion of Alabel, Sarangani; and

4. Ordering the respondents to immediately transfer and forward all theelection/voter's registration records of the petitioners in Quezon City to

the Election Officer, the Election Registration Board and other ComelecOffices of Alabel, Sarangani where the petitioners are obviously qualifiedto excercise their respective rights of suffrage.

4. Annex "4" Copy of the Application for Transfer of Registration Records due toChange of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani,dated August 30, 1997.

5. Annex "5" Certified True Copy of the Notice of Approval of Application, the roster ofapplications for registration approved by the Election Registration Board on October 20,1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and112 both under Precinct No. 14A1, the last two names in the slate indicated astransferees without VRR numbers and their application dated August 30, 1997 and

September 30, 1997, respectively.

6. Annex "6" same as Annex "5"

7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's PreviousRegistration (Annex "I", Petition);

8. Annex "7" Copy of claim card in the name of respondent showing his VRR No.31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, BarangayPoblacion, Alabel, Sarangani;

9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan,

Election Officer IV, District III, Quezon City, which reads:

This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longerregistered voters of District III, Quezon City. Their registration records (VRR) weretransferred and are now in the possession of the Election Officer of Alabel, Sarangani.

This certification is being issued upon the request of Mr. JUAN DOMINO.

10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating thecircumstances and incidents detailing their alleged acquaintance with respondent.

11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of witness

Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribedand sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodyingtheir alleged personal knowledge of respondent's residency in Alabel, Sarangani;

12. Annex "8-e" A certification dated April 20, 1998, subscribed and sworn to beforeNotary Public Bonifacio, containing a listing of the names of fifty-five (55) residents ofAlabel, Sarangani, declaring and certifying under oath that they personally know therespondent as a permanent resident of Alabel, Sarangani since January 1997 up topresent;

13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax Return for the year1997, BIR form 2316 and W-2, respectively, of respondent; and,

14. Annex "10" The affidavit of respondent reciting the chronology of events andcircumstances leading to his relocation to the Municipality of Alabel, Sarangani,appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and"G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the sameas Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9-b" exceptAnnex "H".

5

On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate forthe position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewiseordered the cancellation of his certificate of candidacy, on the basis of the following findings:


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What militates against respondent's claim that he has met the residency requirement for the positionsought is his own Voter's Registration Record No. 31326504 dated June 22, 1997 [Annex "B", Petition]and his address indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence,standing alone, negates all his protestations that he established residence at Barangay Poblacion, Alabel,Sarangani, as early as January 1997. It is highly improbable, nay incredible, for respondent whopreviously ran for the same position in the 3rd Legislative District of Quezon City during the elections of

1995 to unwittingly forget the residency requirement for the office sought.

Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) yearresidency requirement provided for candidates for Member of the House of Representatives underSection 6, Article VI of the Constitution.

All told, petitioner's evidence conspire to attest to respondent's lack of residence in the constituencywhere he seeks election and while it may be conceded that he is a registered voter as contemplatedunder Section 12 of R.A. 8189, he lacks the qualification to run for the position of Congressman for theLone District of the Province of Sarangani.

6

On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering

that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolutiondisqualifying him as candidate had not yet become final and executory.

7

The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,8shows

that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the Provinceof Sarangani.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied bythe COMELEC en bancin its decision dated 29 May 1998. Hence, the present Petition for Certiorariwith prayer forPreliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretionamounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.

On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the partiesto maintain the status quoprevailing at the time of the filing of the instant petition.9

On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the secondhighest number of votes, was allowed by the Court to Intervene.

10INTERVENOR in her Motion for Leave to Intervene and

in her Comment in Intervention11

is asking the Court to uphold the disqualification of petitioner Juan Domino and toproclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.

Before us DOMINO raised the following issues for resolution, to wit:

a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaringpetitioner as resident of Sarangani and not of Quezon City is final, conclusive and bindingupon the whole world, including the Commission on Elections.

b. Whether or not petitioner herein has resided in the subject congressional district for atleast one (1) year immediately preceding the May 11, 1998 elections; and

c. Whether or not respondent COMELEC has jurisdiction over the petition a quofor thedisqualification of petitioner.

12

The first issue.

The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion proceedingsdeclaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon the COMELECcannot be sustained.

The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny duecourse to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of theCOMELEC to determine whether false representation as to material facts was made in the certificate of candidacy, thatwill include, among others, the residence of the candidate.

The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINOto be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not preclude theCOMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of compliance with theresidency requirement.


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The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factualfindings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the right to votein the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion orexclusion proceedings may pass upon any question necessary to decide the issue raised including the questions ofcitizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list of votersnecessarily caries with it the power to inquire into and settle all matters essential to the exercise of said authority.

However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election inrelation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final andunappealable, does not acquire the nature of res judicata.

13In this sense, it does not operate as a bar to any future action

that a party may take concerning the subject passed upon in the proceeding.14

Thus, a decision in an exclusionproceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on his right to beregistered as a voter in any other election.

15

Thus, in Tan Cohon v.Election Registrar16

we ruled that:

. . . It is made clear that even as it is here held that the order of the City Court in question has becomefinal, the same does not constitute res adjudicataas to any of the matters therein contained. It isridiculous to suppose that such an important and intricate matter of citizenship may be passed upon anddetermined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion

of persons in the registry list of voters. Even if the City Court had granted appellant's petition for inclusionin the permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her allegedFilipino citizenship would still have been left open to question.

Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it declaredDOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's registration fromPrecinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. Itis not within the competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident ofanother municipality. The jurisdiction of the lower court over exclusion cases is limited only to determining the right ofvoter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precint in which heis registered, specifying the ground of the voter's disqualification. The trial court has no power to order the change ortransfer of registration from one place of residence to another for it is the function of the election Registration Board asprovided under Section 12 of R.A. No. 8189.

17The only effect of the decision of the lower court excluding the challenged

voter from the list of voters, is for the Election Registration Board, upon receipt of the final decision, to remove the voter'sregistration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place therecord in the inactive file.

18

Finally, the application of the rule on res judicatais unavailing. Identity of parties, subject matter and cause of action areindispensable requirements for the application of said doctrine. Neither herein Private Respondents nor INTERVENOR, isa party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying thathe and his wife be excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny DueCourse to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged falserepresentation in his certificate of candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it isessential that there must be between the first and the second action identity of parties, identity of subject matter andidentity of causes of action.

19In the present case, the aforesaid essential requisites are not present. In the case of Nuval

v.Guray,et al.,20

the Supreme Court in resolving a similar issue ruled that:

The question to be solved under the first assignment of error is whether or not the judgment rendered inthe case of the petition for the exclusion of Norberto Guray's name from the election list of Luna, is resjudicata, so as to prevent the institution and prosecution of an action in quowarranto, which is now beforeus.

The procedure prescribed by section 437 of the Administrative Code, as amended by Act No. 3387, is ofa summary character and the judgment rendered therein is not appealable except when the petition istried before the justice of the peace of the capital or the circuit judge, in which case it may be appealed tothe judge of first instance, with whom said two lower judges have concurrent jurisdiction.

The petition for exclusion was presented by Gregorio Nuval in his dual capacity as qualified voter of themunicipality of Luna, and as a duly registered candidate for the office of president of said municipality,against Norberto Guray as a registered voter in the election list of said municipality. The presentproceeding of quowarrantowas interposed by Gregorio Nuval in his capacity as a registered candidatevoted for the office of municipal president of Luna, against Norberto Guray, as an elected candidate forthe same office. Therefore, there is no identity of parties in the two cases, since it is not enough that therebe an identity of persons, but there must be an identity of capacities in which said persons litigate. (Art.1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)

In said case of the petition for the exclusion, the object of the litigation, or the litigious matter was theexclusion of Norberto Guray as a voter from the election list of the municipality of Luna, while in thepresent quewarrantoproceeding, the object of the litigation, or the litigious matter is his exclusion or


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expulsion from the office to which he has been elected. Neither does there exist, then, any identity in theobject of the litigation, or the litigious matter.

In said case of the petition for exclusion, the cause of action was that Norberto Guray had not the sixmonths' legal residence in the municipality of Luna to be a qualified voter thereof, while in the presentproceeding of quowarranto, the cause of action is that Norberto Guray has not the one year's legal

residence required for eligibility to the office of municipal president of Luna. Neither does there existtherefore, identity of causes of action.

In order that res judicatamay exist the following are necessary: (a) identity of parties; (b) identity ofthings; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the case of thepetition for excluision and in the present quowarrantoproceeding, as there is no identity of parties, or ofthings or litigious matter, or of issues or causes of action, there is no res judicata.

The Second Issue.

Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998election as stated in his certificate of candidacy?

We hold in the negative.

It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and forelective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but alsopersonal presence in that place, coupled with conduct indicative of such intention.

21"Domicile" denotes a fixed permanent

residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return.22

"Domicile" isa question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind,namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a newone is acquired; and (3) a man can have but one residence or domicile at a time.

23

Records show that petitioner's domicile of origin was Candon, IlocosSur

24and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara,

Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City inthe May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City andhas established a new "domicile" of choice at the Province of Sarangani.

A person's "domicile" once established is considered to continue and will not be deemed lost until a new one isestablished.

25To successfully effect a change of domicile one must demonstrate an actual removal or an actual change

of domicile; a bona fideintention of abandoning the former place of residence and establishing a new one and definiteacts which correspond with thepurpose.

26In other words, there must basically be animusmanendicoupled with animusnon revertendi. The purpose to

remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary;and the residence at the place chosen for the new domicile must be actual.

27

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was

sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits andcertifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality.

While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred hisresidence in that place. To establish a new domicile of choice, personal presence in the place must be coupled withconduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requiresnot only such bodily presence in that place but also a declared and probable intent to make it one's fixed and permanentplace of abode, one's home.

28

As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it asa domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements isabsent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nordoes the fact of physical presence without intention.

29

The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The leasecontract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanencyrequired to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence,no matter how long, without the intention to abandon it does not result in loss or change ofdomicile.

30Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January

1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-year residencerequirement.


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Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act ofregistering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise toa strong presumption of residence especially in this case where DOMINO registered in his former barangay. Exercisingthe right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decidedpreponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence.

31The fact that a

party continously voted in a particular locality is a strong factor in assisting to determine the status of his domicile.32

His claim that his registration in Quezon City was erroneous and was caused by events over which he had no controlcannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2)consecutive weekends, viz.: June 14, 15, 21, and 22.

33

While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house hewas renting on November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22 October1997,

34and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of residence

on 30 August 1997,35

DOMINO still falls short of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district one intends torepresent must satisfy the length of time prescribed by the fundamental law.

36Domino's failure to do so rendered him

ineligible and his election to office null and void.37

The Third Issue.

DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit.

As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over apetition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for anyreason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification isvoted for and receives the highest number of votes

38and provided further that the winning candidate has not been

proclaimed or has taken his oath of office.39

It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and

exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress asprovided under Section 17 of Article VI of the Constitution begins only after a candidate has become a member of theHouse of Representatives.

40

The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winningcandidate.

41A candidate must be proclaimed and must have taken his oath of office before he can be considered a

member of the House of Representatives.

In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of theProvince of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of theelection ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. Thisresolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO ascandidate for the position.

Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of theProvince of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC andnot the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a candidate.

42

Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani, mayINTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winningcandidate?

It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed

winner in case the winning candidate is disqualified.

43

In every election, the people's choice is the paramountconsideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office acandidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in hisplace.

44

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate whohas not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of aconstituency, the majority of which have positively declared through their ballots that they do not choose him.

45To

simplistically assume that the second placer would have received the other votes would be to substitute our judgment forthe mind of the voters. He could not be considered the first among qualified candidates because in a field which excludesthe qualified candidate, the conditions would have substantially changed.

46


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Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast inthe election for that office, and it is fundamental idea in all republican forms of government that no one can be declaredelected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast inthe election.

47

The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath

of victory cannot be transferred48from the disqualified winner to the repudiated loser because the law then as now onlyauthorizes a declaration of election in favor of the person who has obtained a plurality of votes

49and does not entitle the

candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed tomake a choice and the election is a nullity.

50To allow the defeated and repudiated candidate to take over the elective

position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and toundermine the importance and meaning of democracy and the people's right to elect officials of their choice.

51

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained.INTERVENOR's reliance on the opinion made in the Labo, Jr. case

52to wit: 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 nevertheless cast theirvotes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votesby notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining thenext higher number of votes may be deemed elected, is misplaced.

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate.Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is notyet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 thatallowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaringhim ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincerebelief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not betreated as stray, void, or meaningless.

53

WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division andthe decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.1wphi1.nt

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at which itis aimed.1The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered

voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediatelypreceding the election."2The mischief which this provision reproduced verbatim from the 1973 Constitution seeks toprevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and notidentified with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of theFirst District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the followinginformation in item no. 8: 4


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RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELYPRECEDING THE ELECTION: __________ Years and sevenMonths.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First Districtof Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5with the

Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. Inhis petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residencyrequirement for candidates for the House of Representatives on the evidence of declarations made by her inVoter Registration Record 94-No. 33497726and in her Certificate of Candidacy. He prayed that "an order beissued declaring (petitioner) disqualified and canceling the certificate of candidacy."7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry"seven" months to "since childhood" in item no. 8 of the amended certificate. 8On the same day, the ProvincialElection Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the groundthat it is filed out of time, the deadline for the filing of the same having already lapsed on March

20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or beforethe March 20, 1995 deadline.9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's HeadOffice in Intramuros, Manila onMarch 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with thehead office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in heroriginal Certificate of Candidacy was the result of an "honest misinterpretation" 10which she sought to rectifyby adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she hasalways maintained Tacloban City as her domicile or residence.11Impugning respondent's motive in filing thepetition seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter inTacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed herintended registration by writing a letter stating that "she is not a resident of said city but of BarangayOlot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of hersix month actual residence therein, petitioner filed a petition with the COMELEC to transfer the townof Tolosa from the First District to the Second District and pursued such a move up to the SupremeCourt, his purpose being to remove respondent as petitioner's opponent in the congressionalelection in the First District. He also filed a bill, along with other Leyte Congressmen, seeking thecreation of another legislative district to remove the town of Tolosa out of the First District, to achievehis purpose. However, such bill did not pass the Senate. Having failed on such moves, petitionernow filed the instant petition for the same objective, as it is obvious that he is afraid to submit alongwith respondent for the judgment and verdict of the electorate of the First District of Leyte in anhonest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13came upwith a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking offpetitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate ofCandidacy. 14Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy afterthe lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residencyrequirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months)was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, anamendment should subsequently be allowed. She averred that she thought that what was askedwas her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First

Legislative District, to which she could have responded "since childhood." In an accompanyingaffidavit, she stated that her domicile is Tacloban City, a component of the First District, to which shealways intended to return whenever absent and which she has never abandoned. Furthermore, inher memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she hasbeen a resident of the First Legislative District of Leyte since childhood, although she only became aresident of the Municipality of Tolosa for seven months. She asserts that she has always been aresident of Tacloban City, a component of the First District, before coming to the Municipality ofTolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announcedthat she would be registering in Tacloban City so that she can be a candidate for the District.


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However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not toallow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claimand instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, theCertificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quiteaware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did notcite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was askedwas her actual and physical presence in Tolosa is not easy to believe because there is none in thequestion that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaksclearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding theelection." Thus, the explanation of respondent fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, isdevoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the caseofAlialy v.COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced.

The case only applies to the "inconsequential deviations which cannot affect the result of theelection, or deviations from provisions intended primarily to secure timely and orderly conduct ofelections." The Supreme Court in that case considered the amendment only as a matter of form. Butin the instant case, the amendment cannot be considered as a matter of form or an inconsequentialdeviation. The change in the number of years of residence in the place where respondent seeks tobe elected is a substantial matter which determines her qualification as a candidacy, specially thoseintended to suppress, accurate material representation in the original certificate which adverselyaffects the filer. To admit the amended certificate is to condone the evils brought by the shiftingminds of manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order toprolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before

this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated inher certificate of candidacy can be gleaned from her entry in her Voter's Registration Recordaccomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leytefor 6 months at the time of the said registration (Annex A, Petition). Said accuracy is furtherbuttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994,requesting for the cancellation of her registration in the Permanent List of Voters thereat so that shecan be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) differentdocuments show the respondent's consistent conviction that she has transferred her residence toOlot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of

August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore,cannot be persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by thisCommission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has notcomplied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with "domicile"which imports not only the intention to reside in a fixed place but also personal presence in-thatplace, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent

residence to which when absent for business or pleasure, or for like reasons, one intends to return.(Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). Inrespondent's case, when she returned to the Philippines in 1991, the residence she chose was notTacloban but San Juan, Metro Manila. Thus, her animus revertendiis pointed to Metro Manila andnot Tacloban.

This Division is aware that her claim that she has been a resident of the First District since childhoodis nothing more than to give her a color of qualification where she is otherwise constitutionallydisqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit.Except for the time that she studied and worked for some years after graduation in Tacloban City,


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she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived andresided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in SanMiguel, Manila where she was again a registered voter. In 1978, she served as member of theBatasang Pambansa as the representative of the City of Manila and later on served as the Governorof Metro Manila. She could not have served these positions if she had not been a resident of the Cityof Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in

1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24,1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for thecancellation of her registration in the permanent list of voters that she may be re-registered ortransferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been aresident of Tacloban City since childhood up to the time she filed her certificate of candidacybecause she became a resident of many places, including Metro Manila. This debunks her claim thatprior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leytesince childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. Sheregistered as a voter in different places and on several occasions declared that she was a residentof Manila. Although she spent her school days in Tacloban, she is considered to have abandoned

such place when she chose to stay and reside in other different places. In the case of Romualdezvs.RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. Theremust concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and(3) intention to abandon the old domicile. In other words there must basically be animusmanendi with animus non revertendi. When respondent chose to stay in Ilocos and later on inManila, coupled with her intention to stay there by registering as a voter there and expresslydeclaring that she is a resident of that place, she is deemed to have abandoned Tacloban City,where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative ofsuch intention. Respondent's statements to the effect that she has always intended to return toTacloban, without the accompanying conduct to prove that intention, is not conclusive of her choiceof residence. Respondent has not presented any evidence to show that her conduct, one year prior

the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to herresidence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte "sincechildhood."

To further support the assertion that she could have not been a resident of the First District of Leytefor more than one year, petitioner correctly pointed out that on January 28, 1995 respondentregistered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her VoterRegistration Record that she resided in the municipality of Tolosa for a period of six months. Thismay be inconsequential as argued by the respondent since it refers only to her residence in Tolosa,Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her

residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the districtfor six months only.15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en bancdenied petitioner'sMotion for Reconsideration 16of the April 24, 1995 Resolution declaring her not qualified to run for the position ofMember of the House of Representatives for the First Legislative District of Leyte. 17The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, nonew substantial matters having been raised therein to warrant re-examination of the resolutiongranting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the

canvass show that she obtained the highest number of votes in the congressional elections in the First District ofLeyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that theproclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of theelections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completedby the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that sheobtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of saidCertificate of Canvass was annexed to the Supplemental Petition.


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On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District ofLeyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classifiedinto two general areas:

I.The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for aperiod of one year at the time of the May 9, 1995 elections.

II.The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outsidethe period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the

said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction overthe question of petitioner's qualifications after the May 8, 1995 elections.

I.Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application ofsettled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement withthe general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution

reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intendedfor the purpose of determining a candidate's qualifications for election to the House of Representatives as requiredby the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position,has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, thedomicile of natural persons is their place of habitual residence." In Ong vs. Republic 20this court took the concept ofdomicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, oneintends to return, and depends on facts and circumstances in the sense that they disclose intent." 21Based on theforegoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animusmanendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the

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

There is a difference between domicile and residence. "Residence" is used to indicate a place ofabode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which,when absent, one has the intention of returning. A man may have a residence in one place and adomicile in another. Residence is not domicile, but domicile is residence coupled with the intention toremain for an unlimited time. A man can have but one domicile for the same purpose at any time, buthe may have numerous places of residence. His place of residence is generally his place ofdomicile, but it is not by any means necessarily so since no length of residence without intention ofremaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. Asthese concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact thatresidence for election purposes is used synonymously with domicile.

In Nuval vs.Guray, 24the Court held that "the term residence. . . is synonymous with domicile which imports not onlyintention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such


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intention." 25Larena vs. Teves 26reiterated the same doctrine in a case involving the qualifications of the respondenttherein to the post of Municipal President of Dumaguete, Negros Oriental.Faypon vs. Quirino, 27held that the absencefrom residence to pursue studies or practice a profession or registration as a voter other than in the place where one iselected does not constitute loss of residence. 28So settled is the concept (of domicile) in our election law that in these andother election law cases, this Court has stated that the mere absence of an individual from his permanent residencewithout the intention to abandon it does not result in a loss or change of domicile.

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

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, therewas an attempt to require residence in the place not less than one year immediately preceding theday of the elections. So my question is: What is the Committee's concept of residence of a candidatefor the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly areconcerned, the proposed section merely provides, among others, "and a resident thereof", that is, in

the district for a period of not less than one year preceding the day of the election. This was in effectlifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo hasraised the same point that "resident" has been interpreted at times as a matter of intention ratherthan actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual

residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision inthe Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted bylaw. So, we have to stick to the original concept that it should be by domicile and not physicalresidence.30

In Co vs. Electoral Tribunal of the House of Representatives, 31this Court concluded that the framers of the 1987Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having thesame meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency

requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry inpetitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7)months?

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

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in thespace provided for the residency qualification requirement. The circumstances leading to her filing the questionedentry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her

actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in thespace provided. These circumstances and events are amply detailed in the COMELEC's Second Division'squestioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that shewould be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejoopposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered inher place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted downin her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: theentry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where acandidate seeks election thus:


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

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner'sclaimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The

juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence and the second requiring domicilecoupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to herwriting down an unintended entry for which she could be disqualified. This honest mistake should not, however, beallowed to negate the fact of residence in the First District if such fact were established by means more convincingthan a mere entry on a piece of paper.

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

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the SecondDivision of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when(petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila."The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any placewhere she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the electionof her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 andthereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not,have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is wherethe confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived andmaintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given

place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to doother things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion bythe COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filedher certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudencein which this Court carefully made distinctions between (actual) residence and domicile for election law purposes.In Larena vs.Teves, 33supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives withhis family in a municipality without having ever had the intention of abandoning it, and without havinglived either alone or with his family in another municipality, has his residence in the formermunicipality, notwithstanding his having registered as an elector in the other municipality in questionand having been a candidate for various insular and provincial positions, stating every time that he isa resident of the latter municipality.

More significantly, in Faypon vs.Quirino, 34We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, toimprove his lot, and that, of course includes study in other places, practice of his avocation, orengaging in business. When an election is to be held, the citizen who left his birthplace to improvehis lot may desire to return to his native town to cast his ballot but for professional or businessreasons, or for any other reason, he may not absent himself from his professional or businessactivities; so there he registers himself as voter as he has the qualifications to be one and is notwilling to give up or lose the opportunity to choose the officials who are to run the governmentespecially in national elections. Despite such registration, the animus revertendi to his home, to hisdomicile or residence of origin has not forsaken him. This may be the explanation why the

registration of a voter in a place other than his residence of origin has not been deemed sufficient toconstitute abandonment or loss of such residence. It finds justification in the natural desire andlonging of every person to return to his place of birth. This strong feeling of attachment to the placeof one's birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitionerwas ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviouslyreferring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled

jurisprudence on residence in election law and the deliberations of the constitutional commission but also theprovisions of the Omnibus Election Code (B.P. 881). 35


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What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which welift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile inTacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to1949 when she graduated from high school. She pursued her college studies in St. Paul's College,now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, shetaught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work withher cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of IlocosNorte and registered there as a voter. When her husband was elected Senator of the Republic in1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In1965, when her husband was elected President of the Republic of the Philippines, she lived with himin Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu,Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election asPresident of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a

resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner heldvarious residences for different purposes during the last four decades. None of these purposes unequivocally pointto an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila,as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood thereand eventually established residence in different parts of the country for various reasons. Even during her husband'spresidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin byestablishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her homeprovince, instituting well-publicized projects for the benefit of her province and hometown, and establishing apolitical power base where her siblings and close relatives held positions of power either through the ballot or byappointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are partof the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in theCOMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew:the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she didnot live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned herresidency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merelyexpressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, itfollows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin byoperation of law. This domicile was not established only when her father brought his family back to Leyte contrary toprivate respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fideintention of abandoning the former place of residence and establishing a new one;and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed tocontinue. Only with evidence showing concurrence of all three requirements can the presumption of continuity orresidence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannothave two legal residences at the same time. 38In the case at bench, the evidence adduced by private respondentplainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin infavor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishingpetitioner's former domicile with an intent to supplant the former domicile with one of her own choosing (domiciliumvoluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as aresult of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly establisheddistinction between the Civil Code concepts of "domicile" and "residence." 39The presumption that the wife


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automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term"residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are welldelineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms implyrelations between a person and a place; but in residence, the relation is one of fact while in domicile

it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wifefrom living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the femalespouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicileof origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sinembargo, podran con justa causa eximirla de esta obligacion cuando el marido transende suresidencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever(the husband) wishes to establish residence. This part of the article clearly contemplates only actual residencebecause it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is furtherstrengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "whenthe husband shall transfer his residence," referring to another positive act of relocating the family to another home orplace of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only

once, but as often as the husband may deem fit to move his family, a circumstance more consistent with theconcept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen andunify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (oforigin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a singleplace of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS ANDOBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obligesthe husband and wife to live together, thus:

Art. 109. The husband and wife are obligated to live together, observe mutual respect and fidelityand render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into accountthe situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay inor transfer to any one of their residences, the wife should necessarily be with him in order that they may "livetogether." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, weshall be faced with a situation where the wife is left in the domicile while the husband, for professional or otherreasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile Whether the word "residence" as used with reference to particularmatters is synonymous with "domicile" is a question of some difficulty, and the ultimate decisionmust be made from a consideration of the purpose and intent with which the word is used.Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a place.A person can have two or more residences, such as a country residence and a city residence.Residence is acquired by living in place; on the other hand, domicile can exist without actually livingin the place. The important thing for domicile is that, once residence has been established in oneplace, there be an intention to stay there permanently, even if residence is also established in some


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otherplace. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not aniron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our

jurisprudence has recognized certain situations 42where the spouses could not be compelled to live with each othersuch that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practicalreasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina vs.Villareal 43thisCourt held that "[a] married woman may acquire a residence or domicile separate from that of her husband during theexistence of the marriage where the husband has given cause for divorce." 44Note that the Court allowed the wife eitherto obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .underthe Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin,the Court has held that the wife could not be compelled to live with her husband on pain of contempt. InArroyovs. Vasques de Arroyo 45the Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the courts of thiscountry to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other.Of course where the property rights of one of the pair are invaded, an action for restitution of such rightscan be maintained. But we are disinclined to sanction the doctrine that an order, enforcible ( sic) byprocess of contempt, may be entered to compel the restitution of the purely personal right of consortium.At best such an order can be effective for no other purpose than to compel the spouses to live under thesame roof; and he experience of those countries where the courts of justice have assumed to compel thecohabitation of married people shows that the policy of the practice is extremely questionable. Thus inEngland, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at theinstance of either husband or wife; and if the facts were found to warrant it, that court would make amandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquentparty to live with the other and render conjugal rights. Yet this practice was sometimes criticized even bythe judges who felt bound to enforce such orders, and in Weldon v.Weldon (9 P.D. 52), decided in 1883,Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice,expressed his regret that the English law on the subject was not the same as that which prevailed inScotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights inEngland, could be obtained by the injured spouse, but could not be enforced by imprisonment.

Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act(1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights canstill be procured, and in case of disobedience may serve in appropriate cases as the basis of an order forthe periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has everattempted to make a preemptory order requiring one of the spouses to live with the other; and that was ina case where a wife was ordered to follow and live with her husband, who had changed his domicile tothe City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on aprovision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decidedmany years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In otherstates of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of theAudiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative,upon her failure to do so, to make a particular disposition of certain money and effects then in herpossession and to deliver to her husband, as administrator of the ganancial property, all income, rents,and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur.Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile wassanctioned by any other penalty than the consequences that would be visited upon her in respect to theuse and control of her property; and it does not appear that her disobedience to that order would

necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged byvirtue of Article 110 of the Civil Code to follow her husband's actual place of residence fixed by him. The problemhere is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac,Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assumingthat Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage wasactual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as aresult of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. Tounderscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residencehas been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning andspirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's


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rights in the intervening years by making the choice of domicile a product of mutual agreement between thespouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code)and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting therights and obligations of husband and wife the term residence should only be interpreted to mean "actualresidence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that whenpetitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, nota domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and onlyacquired a right to choose a new one after her husband died, petitioner's acts following her return to the countryclearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost byoperation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of thePCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm inOlot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." 47Furthermore, petitionerobtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports thedomiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her

home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and"residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," notdomicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse eitherreverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogicalfor us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act ofselecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domiciledifferent from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we arepersuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner'sclaim of legal residence or domicile in the First District of Leyte.

II.The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutionswere rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the OmnibusElection Code. 48M

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