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A. ARTICLE X 1987 Constitution

A. LOCAL GOVERNMENT

GENERAL PROVISIONS

Section 1. The territorial and political subdivisions of the Republic of thePhilippines are the provinces, cities, municipalities, and barangays. Thereshall be autonomous regions in Muslim Mindanao and the Cordilleras ashereinafter provided.

Section 2. The territorial and political subdivisions shall enjoy localautonomy.

Section 3. The Congress shall enact a local government code which shall

provide for a more responsive and accountable local government structureinstituted through a system of decentralization with effective mechanisms ofrecall, initiative, and referendum, allocate among the different localgovernment units their powers, responsibilities, and resources, and providefor the qualifications, election, appointment and removal, term, salaries,powers and functions and duties of local officials, and all other mattersrelating to the organization and operation of the local units.

Section 4. The President of the Philippines shall exercise generalsupervision over local governments. Provinces with respect to componentcities and municipalities, and cities and municipalities with respect tocomponent barangays, shall ensure that the acts of their component unitsare within the scope of their prescribed powers and functions.

Section 5. Each local government unit shall have the power to create itsown sources of revenues and to levy taxes, fees and charges subject tosuch guidelines and limitations as the Congress may provide, consistentwith the basic policy of local autonomy. Such taxes, fees, and charges shall

accrue exclusively to the local governments.

Section 6. Local government units shall have a just share, as determined bylaw, in the national taxes which shall be automatically released to them.

Section 7. Local governments shall be entitled to an equitable share in theproceeds of the utilization and development of the national wealth withintheir respective areas, in the manner provided by law, including sharing thesame with the inhabitants by way of direct benefits.

Section 8. The term of office of elective local officials, except barangayofficials, which shall be determined by law, shall be three years and no suchofficial shall serve for more than three consecutive terms. Voluntaryrenunciation of the office for any length of time shall not be considered asan interruption in the continuity of his service for the full term for which hewas elected.

Section 9. Legislative bodies of local governments shall have sectoralrepresentation as may be prescribed by law.

Section 10. No province, city, municipality, or barangay may be created,divided, merged, abolished, or its boundary substantially altered, except inaccordance with the criteria established in the local government code andsubject to approval by a majority of the votes cast in a plebiscite in thepolitical units directly affected.

Section 11. The Congress may, by law, create special metropolitan politicalsubdivisions, subject to a plebiscite as set forth in Section 10 hereof. Thecomponent cities and municipalities shall retain their basic autonomy andshall be entitled to their own local executive and legislative assemblies. Thejurisdiction of the metropolitan authority that will thereby be created shall belimited to basic services requiring coordination.

Section 12. Cities that are highly urbanized, as determined by law, andcomponent cities whose charters prohibit their voters from voting forprovincial elective officials, shall be independent of the province. The votersof component cities within a province, whose charters contain no such

prohibition, shall not be deprived of their right to vote for elective provincialofficials.

Section 13. Local government units may group themselves, consolidate orcoordinate their efforts, services, and resources for purposes commonly

beneficial to them in accordance with law.

Section 14. The President shall provide for regional development councils orother similar bodies composed of local government officials, regional headsof departments and other government offices, and representatives fromnon-governmental organizations within the regions for purposes ofadministrative decentralization to strengthen the autonomy of the units

therein and to accelerate the economic and social growth and develoof the units in the region.

G.R. No. 133495 September 3, 1998

BENJAMIN U. BORJA, JR., petitioner,vs.COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respond

This case presents for determination the scope of the constiprovision barring elective local officials, with the exception of baofficials, from serving more than three consecutive terms. In particuquestion is whether a vice-mayor who succeeds to the office of maoperation of law and serves the remainder of the term is considered tserved a term in that office for the purpose of the three-term limit.

Private respondent Jose T. Capco, Jr. was elected vice-mayor of PateJanuary 18, 1988 for a term ending June 30, 1992. On September 2he became mayor, by operation of law, upon the death of the incuCesar Borja. On May 11, 1992, he ran and was elected mayor for a tthree years which ended on June 30, 1995. On May 8, 1995, hreelected mayor for another term of three years ending June 30, 1998

On March 27, 1998, private respondent Capco filed a certificcandidacy for mayor of Pateros relative to the May 11, 1998 elePetitioner Benjamin U. Borja Jr., who was also a candidate for sought Capco's disqualification on the theory that the latter woulalready served as mayor for three consecutive terms by June 30, 19would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Eleruled in favor of petitioner and declared private respondent disqualified from running for reelection as mayor of Pateros. 2 Howe

motion of private respondent the COMELEC en banc, voting 5-2, rethe decision and declared Capco eligible to run for mayor in the M1998 elections. 3 The majority stated in its decision:

In both the Constitution and the Local Government Code, the threlimitation refers to the term of office for which the local official was elemade no reference to succession to an office to which he was not eIn the case before the Commission, respondent Capco was not elethe position of Mayor in the January 18, 1988 local elections. He succto such office by operation of law and served for the unexpired termpredecessor. Consequently, such succession into office is not counone (1) term for purposes of the computation of the three-term limunder the Constitution and the Local Government Code.

Accordingly, private respondent was voted for in the elections. He re16,558 votes against petitioner's 7,773 votes and was proclaimed by the Municipal Board of Canvassers.

This is a petition forcertioraribrought to set aside the resolution, da7, 1998, of the COMELEC and to seek a declaration that private respis disqualified to serve another term as mayor of Pateros, Metro Mani

Petitioner contends that private respondent Capco's service as mayoSeptember 2, 1989 to June 30, 1992 should be considered as servone full term, and since he thereafter served from 1992 to 1998 twoterms as mayor, he should be considered to have served three consterms within the contemplation of Art. X, 8 of the Constitution and 4the Local Government Code. Petitioner stresses the fact that, updeath of Mayor Cesar Borja on September 2, 1989, private respbecame the mayor and thereafter served the remainder of thePetitioner argues that it is irrelevant that private respondent becameby succession because the purpose of the constitutional provision in the number of terms elective local officials may serve is to premonopolization of political power.

This contention will not bear analysis. Article X, 8 of the Consprovides:

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

This provision is restated in 43(b) of the Local Government Code (R7160):

Sec. 43. Term of Office. . . .

(b) No local elective official shall serve for more than three (3) conseterms in the same position. Voluntary renunciation of the office f

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length of time shall not be considered as an interruption in the continuity ofservice for the full term for which the elective official concerned was elected.. . .

First, to prevent the establishment of political dynasties is not the only policyembodied in the constitutional provision in question. The other policy is thatof enhancing the freedom of choice of the people. To consider, therefore,only stay in office regardless of how the official concerned came to thatoffice whether by election or by succession by operation of law wouldbe to disregard one of the purposes of the constitutional provision inquestion.

Thus, a consideration of the historical background of Article X, 8 of theConstitution reveals that the members of the Constitutional Commission

were as much concerned with preserving the freedom of choice of thepeople 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 shouldbe no further reelection for local and legislative officials. Instead, theyadopted the alternative proposal of Commissioner Christian Monsod thatsuch officials be simply barred from running for the same position in the ofthe succeeding election following the expiration of the third consecutiveterm. 4 Monsod warned against "prescreening candidates [from] whom thepeople will choose" as a result of the proposed absolute disqualification,considering that the draft constitution contained provisions "recognizingpeople's power." 5

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether this Commission shall impose atemporary or a perpetual disqualification on those who have served theirterms in accordance with the limits on consecutive service as decided by

the Constitutional Commission. I would be very wary about this Commissionexercising a sort of omnipotent power in order to disqualify those who willalready have served their terms from perpetuating themselves in office. Ithink the Commission achieves its purpose in establishing safeguardsagainst the excessive accumulation of power as a result of consecutiveterms. We do put a cap on consecutive service in the case of thePresident, six years, in the case of the Vice-President, unlimited; and in thecase of the Senators, one reelection. In the case of the Members ofCongress, both from the legislative districts and from the party list andsectoral representation, this is now under discussion and later on the policyconcerning local officials will be taken up by the Committee on LocalGovernments. The principle remains the same. I think we want to preventfuture situations where, as a result of continuous service and frequentreelections, officials from the President down to the municipal mayor tend todevelop a proprietary interest in their positions and to accumulate thosepowers and perquisites that permit them to stay on indefinitely or to transferthese posts to members of their families in a subsequent election. I think

that is taken care of because we put a gap on the continuity or the unbrokenservice of all of these officials. But where we now decide to put theseprospective servants of the people or politicians, if we want to use thecoarser term, under a perpetual disqualification, I have a feeling that we aretaking away too much from the people, whereas we should be giving asmuch to the people as we can in terms of their own freedom of choice. . . . 6

Other commissioners went on record against "perpetually disqualifying"elective officials who have served a certain number of terms as this woulddeny the right of the people to choose. As Commissioner Yusup R.Abubakar asked, "why should we arrogate unto ourselves the right to decidewhat the people want?" 7

Commissioner Felicitas S. Aquino spoke in the same vein when she calledon her colleagues to "allow the people to exercise their own sense ofproportion and [rely] on their own strength to curtail power when itoverreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave

[perpetual disqualification after serving a number of terms] to the premiseaccepted by practically everybody here that our people are politicallymature? Should we use this assumption only when it is convenient for us,and not when it may also lead to a freedom of choice for the people and forpoliticians who may aspire to serve them longer?" 9

Two ideas thus emerge from a consideration of the proceedings of theConstitutional Commission. The first is the notion ofservice of term, derivedfrom the concern about the accumulation of power as a result of aprolonged stay in office. The second is the idea ofelection, derived from theconcern that the right of the people to choose those whom they wish togovern them be preserved.

It is likewise noteworthy that, in discussing term limits, the draftersConstitution did so on the assumption that the officials concerneserving by reason of election. This is clear from the following exchathe Constitutional Commission concerning term limits, now embodiedVI, 4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issuthe second term. We will allow the Senator to rest for a period of timehe can run again?

MR. DAVIDE. That is correct.

MR. GASCON. And the question that we left behind before Gentlemen will remember was: How long will that period of rest bit be one election which is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rexpressed the view that during the election following the expirationfirst 12 years, whether such election will be on the third year or on thyear thereafter, this particular member of the Senate can run. So, ireally a period of hibernation for six years. That was the Commstand. 10

Indeed a fundamental tenet of representative democracy is that the should be allowed to choose those whom they please to govern thembar the election of a local official because he has already servedterms, although the first as a result of succession by operation of lawthan election, would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well suthe ruling of the COMELEC that Art. X, 8 contemplates service bofficials for three consecutive terms as a result of election. Thsentence speaks of "the term of office ofelective local officials" an

"such official[s]" from serving for more than three consecutive termsecond sentence, in explaining when an elective local official mdeemed to have served his full term of office, states that "vorenunciation of the office for any length of time shall not be considean interruption in the continuity of his service for the full term for whwas elected." The term served must therefore be one "for which [theconcerned] was elected." The purpose of this provision is to precircumvention of the limitation on the number of terms an electivofficial may serve. Conversely, if he is not serving a term for which helected because he is simply continuing the service of the offisucceeds, such official cannot be considered to have fully served thnotwithstanding his voluntary renunciation of office prior to its expirati

Reference is made to Commissioner Bernas' comment on Art. VI, 7similarly bars members of the House of Representatives from servmore than three terms. Commissioner Bernas states that "if one is Representative to serve the unexpired term of another, that unexpireno matter how short, will be considered one term for the purp

computing the number of successive terms allowed." 12

This is actually based on the opinion expressed by Commissioner Daanswer to a query of Commissioner Suarez: "For example, a election is called for a Senator, and the Senator newly elected woulto serve the unexpired portion of the term. Would that mean that servunexpired portion of the term is already considered one term? So,term, which is actually the correct statement, plus one term would disthe Senator concerned from running? Is that the meaning of this pron disqualification, Madam President?" Commissioner Davide saidbecause we speak of "term," and if there is a special election, he wilonly for the unexpired portion of that particular term plus one more tethe Senator and two more terms for the Members of the Lower House

There is a difference, however, between the case of a vice-mayor aof a member of the House of Representatives who succeeds anothdies, resigns, becomes incapacitated, or is removed from office. Thmayor succeeds to the mayorship by operation of law. 14On the othe

the Representative is elected to fill the vacancy. 15 In a real sense, thesuch Representative serves a term for which he was elected. purpose of the constitutional provision is to limit the right to be electto serve in Congress, his service of the unexpired term is rightly counhis first term. Rather than refute what we believe to be the intendmArt. X, 8 with regard to elective local officials, the case of a Represewho succeeds another confirms the theory.

Petitioner also cites Art. VII, 4 of the Constitution which providsuccession of the Vice-President to the Presidency in case of vacathat office. After stating that "The President shall not be eligible freelection," this provision says that "No person who has succee

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1992 for the Synchronized National and Local Election scheduled for 11May 1992, petitioner registered himself anew as a voter at Precinct No. 9 ofMalbog, Tolosa, Leyte. The chairman of the Board of Election Inspectors,who had known Romualdez to be a resident of the place and, in fact, anelected Barangay Chairman of Malbog in 1982, allowed him to beregistered.

Romualdez's registration, however, was not to be unquestioned. On 21February 1992, herein private respondent Donato Advincula ("Advincula")filed a petition with the Municipal Trial Court of Tolosa, Leyte, praying thatRomualdez be excluded from the list of voters in Precinct No. 9 of Malbog,Tolosa, Leyte, under BP 881 and RA 7166.8 Advincula alleged thatRomualdez was a resident of Massachusetts, U.S.A.; that his professionand occupation was in the U.S.A.; that he had just recently arrived in the

Philippines; and that he did not have the required one-year residence in thePhilippines and the six-month residence in Tolosa to qualify him to registeras a voter in Barangay Malbog, Tolosa, Leyte. 9

On 25 February 1992, Romualdez filed an answer, contending that he hasbeen a resident of Tolosa, Leyte, since the early 1980's, and that he has notabandoned his said residence by his physical absence therefrom during theperiod from 1986 up to the third week of December 1991. 10

After due hearing, the Municipal Court of Tolosa, Leyte rendered adecision 11 on 28 February 1992, the dispositive portion of which reads:

WHEREFORE PREMISES CONSIDERED, the court finds the respondentto be a resident of Brgy. Malbog, Tolosa, Leyte and qualified to register as avoter thereat. Hence, the instant petition for exclusion of Philip G.Romualdez from the list of voter of Precinct No. 9, Malbog, Tolosa, Leyte ishereby ordered DENIED and petition DISMISSED.

SO ORDERED.

Upon receipt of the adverse decision, Advincula appealed the case to therespondent court.

On 03 April 1992, the respondent court rendered the assaileddecision, 12 thus:

WHEREFORE, this Court finds respondent Philip Romualdez disqualified toregister as a voter for the 1992 elections and hereby reverses the decisionof the lower court in toto.

The Municipal Registrar of the Commission on Elections of Tolosa, Leyte, ishereby ordered to delete and cancel the name of respondent Philip G.Romualdez from the list of qualified voters registered February 1, 1992, atPrecinct 9, barangay Malbog, Tolosa, Leyte.

SO ORDERED.

Hence, this recourse.

On 7 May 1992, this Court issued a temporary restraining order directingrespondent Regional Trial Court Judge Pedro Espino to cease and desistfrom enforcing questioned decision. 13

The petitioner has raised several issues which have been well synthesizedby the Solicitor General into

(1) Whether or not the MTC and RTC acquired jurisdiction over,respectively, Case No. 01-S. 1992 and Case No. 92-03-42, the petitionhaving been filed by one who did not allege to be himself a registered voterof the municipality concerned; and

(2) Whether or not the respondent court erred in finding the petitioner tohave voluntarily left the country and abandoned his residence in Malbog,Tolosa, Leyte.

The petition is impressed with merit.

Anent the first issue, the petitioner assails for the first time the jurisdiction of

the respondent Court and the MTC of Tolosa, Leyte, in taking cognizance ofthe case, despite an absence of any allegation in the petition filed with theMTC that Advincula was himself a registered voter in Precinct No. 9 ofBarangay Malbog, Tolosa, Leyte conformably with Section 142 of theOmnibus Election Code. 14

When respondent Advincula filed the petition with the MTC for the exclusionof herein petitioner Romualdez, the latter countered by filing hisanswer15 and praying for the denial of the petition, without raising the issueof jurisdiction. But what can be telling is that when the MTC decision,denying the petition for disqualification, went on appeal to the RTC,Romualdez, in his own appeal-memorandum, explicitly prayed that the MTCdecision be affirmed. This unassailable incident leads us to reiterate that

"while lack of jurisdiction may be assailed at any stage, a party'sparticipation in the proceedings before a court without jurisdiction wisuch party from assailing such lack of jurisdiction." 16 Undoubtedpetitioner is now estopped from questioning the jurisdiction respondent not only by his active participation in the proceedings tbut, more importantly, in having sought an affirmative relief himself whappeal was made to the latter court whose jurisdiction he, in effect, inFurthermore, the question is not really as much the jurisdiction of thebelow as merely the locus standiof the complainant in the proceedmatter that, at this stage, should be considered foreclosed.

In any case, we consider primordial the second issue of whetherRomualdez voluntarily left the country and abandoned his resideMalbog, Tolosa, Leyte. Here, this time, we find for the petitioner.

The Solicitor General himself sustains the view of petitioner RomuExpressing surprise at this stance given by the Solicitor Grespondent Advincula posits non sequiturargument 17 in his coassailing instead the person of Solicitor Edgar Chua. If it would havalue, at all, in disabusing the minds of those concerned, it may werecall what this Court said in Rubio vs. Sto. Tomas: 18

It is also incumbent upon the Office of the Solicitor General to presenCourt the position that will legally uphold the best interest government, although it may run counter to a client's position.

In election cases, the Court treats domicile and residence as synonterms, thus: "(t)he term "residence" as used in the election synonymous with "domicile", which imports not only an intention to rea fixed place but also personal presence in that place, coupled with cindicative of such intention." 19 "Domicile" denotes a fixed permresidence to which when absent for business or pleasure, or f

reasons, one intends to return.

20

That residence, in the case petitioner, was established during the early 1980's to be at BaMalbog, Tolosa, Leyte. Residence thus acquired, however, may be adopting another choice of domicile. In order, in turn, to acquire domicile by choice, there must concur (1) residence or bodily presethe new locality, (2) an intention to remain there, and (3) an intenabandon the old domicile. 21 In other words, there must basically be amanendicoupled with animus non revertendi. The purpose to remaat the domicile of choice must be for an indefinite period of time; the cof residence must be voluntary; and the residence at the place chosthe new domicile must be actual. 22

The political situation brought about by the "People's Power Revomust have truly caused great apprehension to the Romualdezes, as a serious concern over the safety and welfare of the members ofamilies. Their going into self-exile until conditions favorable to themhave somehow stabilized is understandable. Certainly, their sdeparture from the country cannot be described as "voluntary,"

"abandonment of residence" at least in the context that these termused in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that mconvince us that the petitioner had, in fact, abandoned his residencePhilippines and established his domicile elsewhere.

It must be emphasized that the right to vote is a most precious politicas well as a bounden duty of every citizen, enabling and requiring participate in the process of government so as to ensure thgovernment can truly be said to derive its power solely from the conthe governed. 23 We, therefore, must commend respondent Advincspending time and effort even all the way up to this Court, for as the suffrage is not to be abridged, so also must we safeguard and presbut only on behalf of those entitled and bound to exercise it.

WHEREFORE, finding merit on the petition the same is hereby GRADUE COURSE; of the Decision of the respondent Regional Tria

dated 03 April 1992 is hereby REVERSED and SET ASIDE, aDecision of the Municipal Trial Court dated 28 February 1992 is hREINSTATED and the Temporary Restraining Order issued by the Cthis case is correspondingly made PERMANENT. No pronouncemencosts.

SO ORDERED.

G.R. No. 124893 April 18, 1997

LYNETTE G. GARVIDA, petitioner,vs.FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON

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ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIALSUPERVISOR NOLI PIPO, respondents.

Petitioner Lynette G. Garvida seeks to annul and set aside the order datedMay 2, 1996 of respondent Commission on Elections (COMELEC) enbancsuspending her proclamation as the duly elected Chairman of theSangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui,Ilocos Norte.

The facts are undisputed. The Sangguniang Kabataan (SK) electionsnationwide was scheduled to be held on May 6, 1996. On March 16, 1996,petitioner applied for registration as member and voter of the Katipunan ngKabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board ofElection Tellers, however, denied her application on the ground that

petitioner, who was then twenty-one years and ten (10) months old,exceeded the age limit for membership in the Katipunan ng Kabataan aslaid down in Section 3 [b] of COMELEC Resolution No. 2824.

On April 2, 1996, petitioner filed a "Petition for Inclusion as RegisteredKabataang Member and Voter" with the Municipal Circuit Trial Court,Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April18, 1996, the said court found petitioner qualified and ordered herregistration as member and voter in the Katipunan ng Kabataan. 1 TheBoard of Election Tellers appealed to the Regional Trial Court, Bangui,Ilocos Norte. 2 The presiding judge of the Regional Trial Court, however,inhibited himself from acting on the appeal due to his close association withpetitioner. 3

On April 23, 1996, petitioner filed her certificate of candidacy for the positionof Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipalityof Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996,respondent Election Officer Dionisio F. Rios, per advice of Provincial

Election Supervisor Noli Pipo,

4

disapproved petitioner's certificate ofcandidacy again due to her age. 5 Petitioner, however, appealed toCOMELEC Regional Director Filemon A. Asperin who set aside the order ofrespondents and allowed petitioner to run. 6

On May 2, 1996, respondent Rios issued a memorandum to petitionerinforming her of her ineligibility and giving her 24 hours to explain why hercertificate of candidacy should not be disapproved. 7 Earlier and without theknowledge of the COMELEC officials, private respondent Florencio G.Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan,filed with the COMELEC en banca "Petition of Denial and/or Cancellation ofCertificate of Candidacy" against petitioner Garvida for falsely representingher age qualification in her certificate of candidacy. The petition was sent byfacsimile 8 and registered mail on April 29, 1996 to the Commission onElections National Office, Manila.

On May 2, 1996, the same day respondent Rios issued the memorandum topetitioner, the COMELEC en bancissued an order directing the Board of

Election Tellers and Board of Canvassers of Barangay San Lorenzo tosuspend the proclamation of petitioner in the event she won in the election.The order reads as follows:

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate ofCandidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida,received on April 29, 1996, the pertinent allegations of which reads:

xxx xxx xxx

5. That the said respondent is disqualified to become a voter and acandidate for the SK for the reason that she will be more than twenty-one(21) years of age on May 6, 1996; that she was born on June 11, 1974 ascan be gleaned from her birth certificate, copy of which is hereto attachedand marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. SanLorenzo, Bangui, Ilocos Norte, she made material representation which isfalse and as such, she is disqualified; that her certificate of candidacy

should not be given due course and that said candidacy must be cancelled;xxx xxx xxx

the Commission, it appearing that the petition is meritorious, herebyDIRECTS the Board of Election Tellers/Board of Canvassers of BarangaySan Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of LynetteG. Garvida in the event she garners the highest number of votes for theposition of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10)copies of his petition and to pay the filing and legal research fees in theamount of P510.00.

SO ORDERED. 9

On May 6, 1996, election day, petitioner garnered 78 votes as aprivate respondent's votes of 76. 10 In accordance with the May 2order of the COMELEC en banc, the Board of Election Tellers dproclaim petitioner as the winner. Hence, the instant forcertiorariwas filed on May 27, 1996.

On June 2, 1996, however, the Board of Election Tellers procpetitioner the winner for the position of SK chairman, BarangaLorenzo, Bangui, Ilocos Norte. 11 The proclamation was "without prejuany further action by the Commission on Elections or any other inteparty." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasmga Sangguniang Kabataan for the municipality of Bangui, Ilocos

She won as Auditor and was proclaimed one of the elected officialsPederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisof the COMELEC en bancto act on the petition to deny or cancertificate of candidacy; the second, the cancellation of her certificandidacy on the ground that she has exceeded the age requiremenas an elective official of the SK.

I

Section 532 (a) of the Local Government Code of 1991 provides thconduct of the SK elections is under the supervision of the COMELEshall be governed by the Omnibus Election Code. 14 The Omnibus ECode, in Section 78, Article IX, governs the procedure to deny due to or cancel a certificate of candidacy,viz:

Sec. 78. Petition to deny due course to or cancel a certificate of cand A verified petition seeking to deny due course or to cancel a certif

candidacy may be filed by any person exclusively on the ground thmaterial representation contained therein as required under Secthereof is false. The petition may be filed at any time not later than tfive days from the time of filing of the certificate of candidacy and sdecided, after due notice and hearing, not later than fifteen days election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure prthat a petition to deny due course to or cancel a certificate of candidan elective office may be filed with the Law Department of the COMon the ground that the candidate has made a false material represein his certificate. The petition may be heard and evidence received official designated by the COMELEC after which the case shall be dby the COMELEC itself. 15

Under the same Rules of Procedure, jurisdiction over a petition to cacertificate of candidacy lies with the COMELEC sitting in Division,banc. Cases before a Division may only be entertained b

COMELEC en bancwhen the required number of votes to reach a deresolution, order or ruling is not obtained in the Division. Moreovemotions to reconsider decisions, resolutions, orders or rulings COMELEC in Division are resolved by the COMELEC en banc.therefore the COMELEC sitting in Divisions that can hear and election cases. This is clear from Section 3 of the said Rules thus:

Sec. 3. The Commission Sitting in Divisions. The Commission shatwo (2) Divisions to hear and decide protests or petitions in ordinary aspecial actions, special cases, provisional remedies, contempt and proceedings except in accreditation of citizens' arms of the Commissi

In the instant case, the COMELEC en bancdid not refer the case toits Divisions upon receipt of the petition. It therefore acted

jurisdiction or with grave abuse of discretion when it entertained the pand issued the order of May 2, 1996. 18

II

The COMELEC en bancalso erred when it failed to note that the pitself did not comply with the formal requirements of pleadings undCOMELEC Rules of Procedure. These requirements are:

Sec. 1. Filing of Pleadings. Every pleading, motion and other must be filed in ten (10) legible copies. However, when there is morone respondent or protestee, the petitioner or protestant must file adnumber of copies of the petition or protest as there are adrespondents or protestees.

Sec. 2. How Filed. The documents referred to in the immepreceding section must be filed directly with the proper Clerk of CourCommission personally, or, unless otherwise provided in these Ru

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registered mail. In the latter case, the date of mailing is the date of filing andthe requirement as to the number of copies must be complied with.

Sec. 3. Form of Pleadings, etc. (a) All pleadings allowed by these Rulesshall be printed, mimeographed or typewritten on legal size bond paper andshall be in English or Filipino.

xxx xxx xxx

Every pleading before the COMELEC must be printed, mimeographed ortypewritten in legal size bond paper and filed in at least ten (10) legiblecopies. Pleadings must be filed directly with the proper Clerk of Court of theCOMELEC personally, or, by registered mail.

In the instant case, the subject petition was not in proper form. Only two (2)

copies of the petition were filed with the COMELEC.19

Also, theCOMELEC en bancissued its Resolution on the basis of the petitiontransmitted by facsimile, not by registered mail.

A facsimile or fax transmission is a process involving the transmission andreproduction of printed and graphic matter by scanning an original copy,one elemental area at a time, and representing the shade or tone of eacharea by a specified amount of electric current. 20 The current is transmittedas a signal over regular telephone lines or via microwave relay and is usedby the receiver to reproduce an image of the elemental area in the properposition and the correct shade. 21 The receiver is equipped with a stylus orother device that produces a printed record on paper referred to as afacsimile. 22

Filing a pleading by facsimile transmission is not sanctioned by theCOMELEC Rules of Procedure, much less by the Rules of Court. Afacsimile is not a genuine and authentic pleading. It is, at best, an exactcopy preserving all the marks of an original. 23 Without the original, there is

no way of determining on its face whether the facsimile pleading is genuineand authentic and was originally signed by the party and his counsel. Itmay, in fact, be a sham pleading. The uncertainty of the authenticity of afacsimile pleading should have restrained the COMELECen bancfromacting on the petition and issuing the questioned order. The COMELEC enbancshould have waited until it received the petition filed by registered mail.

III

To write finis to the case at bar, we shall now resolve the issue ofpetitioner's age.

The Katipunan ng Kabataan was originally created by Presidential DecreeNo. 684 in 1975 as the Kabataang Barangay, a barangay youthorganization composed of all residents of the barangay who were at least15 years but less than 18 years of age. 24 The Kabataang Barangay soughtto provide its members a medium to express their views and opinions andparticipate in issues of transcendental importance. 25 Its affairs wereadministered by a barangay youth chairman together with six barangayyouth leaders who were actual residents of the barangay and were at least15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg.337, then the Local Government Code, raised the maximum age of theKabataang Barangay members from "less than 18 years of age" to "notmore than 21 years of age."

The Local Government Code of 1991 changed the Kabataang Barangayinto the Katipunan ng Kabataan. It, however, retained the age limit of themembers laid down in B.P. 337 at 15 but not more than 21 years old. 27 Theaffairs of the Katipunan ng Kabataan are administered by the SangguniangKabataan (SK) composed of a chairman and seven (7) members who areelected by the Katipunan ng Kabataan. 28 The chairman automaticallybecomes ex-officio member of the Sangguniang Barangay. 29 A member ofthe SK holds office for a term of three (3) years, unless sooner removed forcause, or becomes permanently incapacitated, dies or resigns from office.30

Membership in the Katipunan ng Kabataan is subject to specificqualifications laid down by the Local Government Code of 1991, viz:

Sec. 424. Katipunan ng Kabataan. The katipunan ng kabataan shall becomposed of all citizens of the Philippines actually residing in the barangayfor at least six (6) months, who are fifteen (15) but not more than twenty-one(21) years of age, and who are duly registered in the list of the sangguniangkabataan or in the official barangay list in the custody of the barangaysecretary.

A member of the Katipunan ng Kabataan may become a candidate for theSangguniang Kabataan if he possesses the following qualifications:

Sec. 428. Qualifications. An elective official of the sangguniang kabataanmust be a citizen of the Philippines, a qualified voter of the katipunan ng

kabataan, a resident of the barangay for at least one (1) year immeprior to election, at least fifteen (15) years but not more than twen(21) years of age on the day of his election, able to read and write FEnglish, or the local dialect, and must not have been convicted of anyinvolving moral turpitude.

Under Section 424 of the Local Government Code, a member Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual reof the barangay for at least six months; (c) 15 but not more than 21 yage; and (d) duly registered in the list of the Sangguniang Kabataathe official barangay list. Section 428 of the Code requires that an eofficial of the Sangguniang Kabataan must be: (a) a Filipino citizenqualified voter in the Katipunan ng Kabataan; (c) a resident of the baat least one (1) year immediately preceding the election; (d) at le

years but not more than 21 years of age on the day of his election; (eto read and write; and (f) must not have been convicted of anyinvolving moral turpitude.

For the May 6, 1996 SK elections, the COMELEC interpreted Sectioand 428 of the Local Government Code of 1991 in Resolution No. 28defined how a member of the Katipunan ng Kabataan becomes a quvoter and an elective official. Thus:

Sec. 3. Qualifications of a voter. To be qualified to register as a vthe SK elections, a person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on eday that is, he must have been born between May 6, 1975 and 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually r

in the barangay wherein he proposes to vote for at least six (6) mimmediately preceding the elections.

xxx xxx xxx

Sec. 6. Qualifications of elective members. An elective official of must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately pthe elections; and

c) able to read and write Filipino or any Philippine language or diaEnglish.

Cases involving the eligibility or qualification of candidates shall be dby the city/municipal Election Officer (EO) whose decision shall be fin

A member of the Katipunan ng Kabataan may be a qualified voter

May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but nothan 21 years of age on election day, i.e., the voter must be born beMay 6, 1975 and May 6, 1981, inclusive; and (c) a resident Philippines for at least one (1) year and an actual resident of the baat least six (6) months immediately preceding the elections. A candidthe SK must: (a) possess the foregoing qualifications of a voter; (bresident in the barangay at least one (1) year immediately precedelections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualificationmember and voter in the Katipunan ng Kabataan and a candidate Sangguniang Kabataan. Petitioner 's age is admittedly beyond the liin Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, hoargues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra virbeyond the scope of Sections 424 and 428 of the Local Governmenof 1991. She contends that the Code itself does not provide that themust be exactly 21 years of age on election day. She urges that so loshe did not turn twenty-two (22) years old, she was still twenty-one y

age on election day and therefore qualified as a member and voterKatipunan ng Kabataan and as candidate for the SK elections.

A closer look at the Local Government Code will reveal a disbetween the maximum age of a member in the Katipunan ng Kabatathe maximum age of an elective SK official. Section 424 of the Codemember's maximum age at 21 years only. There is no further provisiowhen the member shall have turned 21 years of age. On the otherSection 428 provides that the maximum age of an elective SK officiayears old "on the day of his election." The addition of the phrase "or tof his election" is an additional qualification. The member may be mo21 years of age on election day or on the day he registers as membeKatipunan ng Kabataan. The elective official, however, must not be

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than 21 years old on the day of election. The distinction is understandableconsidering that the Code itself provides more qualifications for an electiveSK official than for a member of the Katipunan ng Kabataan. Dissimilumdissimilis est ratio. 31 The courts may distinguish when there are facts andcircumstances showing that the legislature intended a distinction orqualification. 32

The qualification that a voter in the SK elections must not be more than 21years of age on the day of the election is not provided in Section 424 of theLocal Government Code of 1991. In fact the term "qualified voter" appearsonly in COMELEC Resolution No. 2824. 33Since a "qualified voter" is notnecessarily an elective official, then it may be assumed that a "qualifiedvoter" is a "member of the Katipunan ng Kabataan." Section 424 of theCode does not provide that the maximum age of a member of the Katipunan

ng Kabataan is determined on the day of the election. Section 3 [b] ofCOMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets theage limit of a voter for the SK elections at exactly 21 years on the day of theelection.

The provision that an elective official of the SK should not be more than 21years of age on the day of his election is very clear. The Local GovernmentCode speaks of years, not months nor days. When the law speaks of years,it is understood that years are of 365 days each. 34 One born on the first dayof the year is consequently deemed to be one year old on the 365th dayafter his birth the last day of the year. 35 In computing years, the first yearis reached after completing the first 365 days. After the first 365th day, thefirst day of the second 365-day cycle begins. On the 365th day of thesecond cycle, the person turns two years old. This cycle goes on and on ina lifetime. A person turns 21 years old on the 365th day of his 21st 365-daycycle. This means on his 21st birthday, he has completed the entire span of21 365-day cycles. After this birthday, the 365-day cycle for his 22nd yearbegins. The day after the 365th day is the first day of the next 365-day cycleand he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, notbeyond 21 years. It means 21 365-day cycles. It does not mean 21 yearsand one or some days or a fraction of a year because that would be morethan 21 365-day cycles. "Not more than 21 years old" is not equivalent to"less than 22 years old," contrary to petitioner's claims. The law does notstate that the candidate be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the agequalification of a barangay youth official was expressly stated as ". . . atleast fifteen years of age or over but less than eighteen . . ." 36 Thisprovision clearly states that the youth official must be at least 15 years oldand may be 17 years and a fraction of a year but should not reach the ageof eighteen years. When the Local Government Code increased the agelimit of members of the youth organization to 21 years, it did not reenact theprovision in such a way as to make the youth "at least 15 but less than 22

years old." If the intention of the Code's framers was to include citizens lessthan 22 years old, they should have stated so expressly instead of leavingthe matter open to confusion and doubt. 37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author ofthe Local Government Code of 1991 declared that one of the reasons whythe Katipunan ng Kabataan was created and the Kabataang Barangaydiscontinued was because most, if not all, Kabataang Barangay leaderswere already over 21 years of age by the time President Aquino assumedpower. 38 They were not the "youth" anymore. The Local Government Codeof 1991 fixed the maximum age limit at not more than 21 years 39 and theonly exception is in the second paragraph of Section 423 which reads:

Sec. 423. Creation and Election.

a) . . . ;

b) A sangguniang kabataan official who, during his term of office, shall havepassed the age of twenty-one (21) years shall be allowed to serve the

remaining portion of the term for which he was elected.The general rule is that an elective official of the Sangguniang Kabataanmust not be more than 21 years of age on the day of his election. The onlyexception is when the official reaches the age of 21 years during hisincumbency. Section 423 [b] of the Code allows him to serve the remainingportion of the term for which he was elected. According to Senator Pimentel,the youth leader must have "been elected prior to his 21stbirthday." 40 Conversely, the SK official must not have turned 21 years oldbefore his election. Reading Section 423 [b] together with Section 428 of theCode, the latest date at which an SK elective official turns 21 years old is onthe day of his election. The maximum age of a youth official must thereforebe exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a]

of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixmaximum age of an elective SK official on the day of his election.

In the case at bar, petitioner was born on June 11, 1974. On Mar1996, the day she registered as voter for the May 6, 1996 SK elepetitioner was twenty-one (21) years and nine (9) months old. On thethe elections, she was 21 years, 11 months and 5 days old. Wheassumed office on June 1, 1996, she was 21 years, 11 months and 2old and was merely ten (10) days away from turning 22 years old. Pemay have qualified as a member of the Katipunan ng Kabatadefinitely, petitioner was over the age limit for elective SK officials Section 428 of the Local Government Code and Sections 3 [b] anComelec Resolution No. 2824. She was ineligible to run as candidateMay 6, 1996 Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is foon public policy and if he lacks the age on the day of the election, he declared ineligible. 41 In the same vein, if the candidate is over the maage limit on the day of the election, he is ineligible. The fact thcandidate was elected will not make the age requirement directory, novalidate his election. 42 The will of the people as expressed throuballot cannot cure the vice of ineligibility. 43

The ineligibility of petitioner does not entitle private respondecandidate who obtained the highest number of votes in the May 6elections, to be declared elected. 44 A defeated candidate candeemed elected to the office. 45 Moreover, despite his claims, 46

respondent has failed to prove that the electorate themselves actuallof petitioner's ineligibility and that they maliciously voted for her wintention of misapplying their franchises and throwing away their vothe benefit of her rival candidate. 47

Neither can this Court order that pursuant to Section 435 of theGovernment Code petitioner should be succeeded by the SanggKabataan member who obtained the next highest number of votesMay 6, 1996 elections. 48 Section 435 applies when a SanggKabataan Chairman "refuses to assume office, fails to qualify, 49 is coof a felony, voluntarily resigns, dies, is permanently incapacitaremoved from office, or has been absent without leave for more than(3) consecutive months."

The question of the age qualification is a question of eligibility. 5

"eligible" means being "legally qualified; capable of being chosen." 51 Ineligibility, on the other hand, refers to the lack qualifications prescribed in the Constitution or the statutes for holdingoffice. 52 Ineligibility is not one of the grounds enumerated in Section succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court denecessary to order that the vacancy be filled by the SK member cho

the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocoby simple majority from among themselves. The member choseassume the office of SK Chairman for the unexpired portion of the tershall discharge the powers and duties, and enjoy the rights and privappurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner LynGarvida is declared ineligible for being over the age qualificatcandidacy in the May 6, 1996 elections of the Sangguniang Kabataais ordered to vacate her position as Chairman of the Sangguniang Kaof Barangay San Lorenzo, Bangui, Ilocos Norte. The SanggKabataan member voted by simple majority by and from amoincumbent Sangguniang Kabataan members of Barangay San LoBangui, Ilocos Norte shall assume the office of Sangguniang KaChairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the uneportion of the term.

SO ORDERED.

JUAN G. FRIVALDO,petitioner, vs. COMMISSION ON ELECTIONRAUL R. LEE, respondents.[G.R. No. 123755. June 28, 1996]RAUL R. LEE,petitioner, vs. COMMISSION ON ELECTIONS and JG. FRIVALDO, respondents.

Decision

The ultimate question posed before this Court in these twin cases isshould be declared the rightful governor of Sorsogon

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(i) Juan G. Frivaldo, who unquestionably obtained the highest number ofvotes in three successive elections but who was twice declared by thisCourt to be disqualified to hold such office due to his alien citizenship, andwho now claims to have re-assumed his lost Philippine citizenship thrurepatriation;

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

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was notvoted directly to the position of governor, but who according to prevailingjurisprudence 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 andelections, and upholds the superiority of substantial justice over purelegalisms.

G.R. No. 123755.

This is a special civil action under Rules 65 and 58 of the Rules of Court forcertiorari and preliminary injunction to review and annul a Resolution of therespondent Commission on Elections (Comelec), FirstDivision,1 promulgated on December 19,19952 and another Resolution ofthe Comelec en bane promulgated February 23, 19963 denying petitioner'smotion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificateof Candidacy for the office of Governor of Sorsogon in the May 8,1995 elections. On March 23, 1995, petitioner Raul R. Lee, anothercandidate, filed a petition4 with the Comelec docketed as SPA No. 95-028praying that Frivaldo "be disqualified from seeking or holding any publicoffice or position by reason of not yet being a citizen of thePhilippines," andthat his Certificate of Candidacy be cancelled. On May 1, 1995, the SecondDivision of the Comelec promulgated a Resolution5 granting the petitionwith the following disposition:6

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

The Motion for Reconsideration filed by Frivaldo remained unacted uponuntil after the May 8, 1995 elections. So, his candidacy continued and hewas voted for during the elections held on said date. On May 11, 1995, theComelec en banc7affirmed the aforementioned Resolution of the SecondDivision.

The Provincial Board of Canvassers completed the canvass of the electionreturns and a Certificate of Votes8.dated May 27, 1995 was issued showingthe following votes obtained by the candidates for the position of Governorof Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

RaulR.Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)petition9 praying for his proclamation as the duly-elected Governor ofSorsogon.

In an order10 dated June 21, 1995, but promulgated according to thepetition "only on June 29, 1995," the Comelec en bane directed "theProvincial Board of Canvassers of Sorsogon to reconvene for the purposeof proclaiming candidate Raul Lee as the winning gubernatorial candidate inthe province of Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in theevening of June 30,1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 doas SPC No. 95-317, praying for the annulment of the Jun1995 proclamation of Lee and for his own proclamation. He allegeon June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiaa citizen of the Philippines after "his petition for repatriation under P.which he filed with the Special Committee on Naturalization in Sep1994 had been granted." As such, when "the said order (dated Ju1995) (of the Comelec) x x x was released and received by Frivaldo o30, 1995 at 5:30 o'clock in the evening, there was no more legal impeto the proclamation (of Frivaldo) as governor x x x." In the alternataverred that pursuant to the two cases of Labo vs. Comelec,12 theGovernor not Lee should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the

assailed Resolution13 holding that Lee, "not having garnered the hnumber of votes," was not legally entitled to be proclaimed as duly-egovernor; and that Frivaldo, "having garnered the highest number ofand xxx having reacquired his Filipino citizenship by repatriation on Ju1995 under the provisions of Presidential Decree No. 725 xxx (is) quto hold the office of governor of Sorsogon"; thus:

"PREMISES CONSIDERED, the Commission (First Division), thRESOLVES to GRANT the Petition.

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

Upon the finality of the annulment of the proclamation of Raul R. LeProvincial Board of Canvassers is directed to immediately reconvenon the basis of the completed canvass, proclaim petitioner Juan G. F

as the duly elected Governor of Sorsogon having garnered the hnumber of votes, and he having reacquired his Filipino citizensrepatriation on June 30,1995 under the provisions of Presidential No. 725 and, thus, qualified to hold the office of Governor of Sorsogo

Conformably with Section 260 of the Omnibus Election Code (B.881), the Clerk of the Commission is directed to notify His ExcellenPresident of the Philippines, and the Secretary of the SanggPanlalawigan of the Province of Sorsogon of this resolution immeupon the due implementation thereof."

On December 26,1995, Lee filed a motion for reconsideration whicdenied by the Comelec en bancin its Resolution14 promon February 23, 1996. On February 26, 1996, the present petition waActing on the prayer for a temporary restraining order, this Court on February 27, 1996 a Resolution which inter alia directed the parmaintain 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 briefly be capsulizedfollowing propositions":15

"First - The initiatory petition below was so far insufficient in forsubstance to warrant the exercise by the COMELEC of its jurisdictiothe result that, in effect, the COMELEC acted without jurisdiction incognizance of and deciding said petition;

Second- The judicially declared disqualification of respondent continuing condition and rendered him ineligible to run for, to be eleand to hold the Office of Governor;

Third - The alleged repatriation of respondent was neither valid noreffect thereof retroactive as to cure his ineligibility and qualify him tthe Office of Governor; and

Fourth - Correctly read and applied, the Labo Doctrine fully suppovalidity of petitioner's proclamation as duly elected Governor of Sorso

G.R. No. 120295

http://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htmhttp://sc.judiciary.gov.ph/jurisprudence/1996/jun1996/120295.htm

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

1. Resolution16 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. Resolution17 of the Comelec en bane, promulgated on May 11, 1995;and

3. Resolution18 of the Comelec en bane, 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 differentground: that under Section 78 of the Omnibus Election Code, which isreproduced hereinunder:

"Section 78. Petition to deny due course or to cancel a certificate ofcandidacy. A verified petition seeking to deny due course or to cancel acertificate of candidacy may be filed by any person exclusively on theground that any material representation contained therein as required underSection 74 hereof is false. The petition may be filed at any time not laterthan twenty-five days from the time of the filing of the certificate ofcandidacy and shall be decided, after notice and hearing, not later thanfifteen days before the election."(Italics supplied.)

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

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

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

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

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restatedas follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonablycure his lack of citizenship as to qualify him to be proclaimed and to hold theOffice of Governor? If not, may it be given retroactive effect? If so, fromwhen?

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

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

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

5. Did the respondent Commission on Elections exceed its jurisdiction inpromulgating the assailed Resolutions, all of which prevented Frivaldo fromassuming the governorship of Sorsogon, considering that they were notrendered within ( the period referred to in Section 78 of the OmnibusElection 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 mothreshold legal issue in this case. All the other matters raised are secto this.

The Local Government Code of 199119 expressly requires Phcitizenship as a qualification for elective local officials, including provincial governor, thus:

"Sec. 39. Qualifications. (a) An elective local official must be a citthe Philippines; a registered voter in the barangay, municipality, cprovince or, in the case of a member of the sangguniang panlalasangguniang panlungsod, or sangguniang bayan, the district whintends to be elected; a resident therein for at least one (1immediately preceding the day of the election; and able to read anFilipino or any other local language or dialect.

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

xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citis therefore incumbent upon him to show that he has reacquired citizin fine, that he possesses the qualifications prescribed under thstatute (R. A. 7160).

Under Philippine law,21 citizenship may be reacquired by direct Congress, by naturalization or by repatriation. Frivaldo told this CG.R. No. 10465422 and during the oral argument in this case that he resume his citizenship by direct act of Congress, but that the bill ahim to do so "failed to materialize, notwithstanding the endorsemseveral members of the House of Representatives" due, according to the "maneuvers of his political rivals." In the same case, his aat naturalization was rejected by this Court because of jurisdisubstantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwheelected governor by the electorate of Sorsogon, with a margin of votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 ovsame opponent Raul Lee. Twice, he was judicially declared a non-and thus twice disqualified from holding and discharging his pmandate. Now, he comes to us a third time, with a fresh vote fropeople of Sorsogon and a favorable decision from the CommissElections to boot. Moreover, he now boasts of having successfully p

through the third and last mode of reacquiring citizenship: by repaunder P.D. No. 725, with no less than the Solicitor General himsewas the prime opposing counsel in the previous cases he lost, this ticounsel for co-respondent Comelec, arguing the validity of his cauaddition to his able private counsel Sixto S. Brillantes, Jr.). That he tooath of allegiance under the provisions of said Decree at 2:00 p.m. o30, 1995 is not disputed. Hence, he insists that henot Leeshoulbeen proclaimed as the duly-elected governor of Sorsogon whProvincial Board of Canvassers met at 8:30 p.m. on the said dateclearly and unquestionably, he garnered the highest number of voteselections and since at that time, he already reacquired his citizenship

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

First, Lee tells us that P.D. No. 725 had "been effectively repasserting that "then President Corazon Aquino exercising legislative

under the Transitory Provisions of the 1987 Constitution, forbade theof citizenship by Presidential Decree or Executive Issuances as theposes a serious and contentious issue of policy which the pgovernment, in the exercise of prudence and sound discretion, shouleave to the judgment of the first Congress under the 1987 Constadding that in her memorandum dated March 27,1987 to the membthe Special Committee on Naturalization constituted for purpoPresidential Decree No. 725, President Aquino directed them "to ceadesist from undertaking any and all proceedings within your functionof responsibility as defined under Letter of Instructions (LOI) No. 270April 11, 1975, as amended."23

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This memorandum dated March 27, 198724 cannot by any stretch of legalhermeneutics be construed as a law sanctioning or authorizing a repeal ofP.D. No. 725. Laws are repealed only by subsequent ones25 and a repealmay be express or implied. It is obvious that no express repeal was madebecause then President Aquino in her memorandum based on the copyfurnished 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. Infact, she did not even mention it specifically by its number or text. On theother hand, it is a basic rule of statutory construction that repeals byimplication are not favored. An implied repeal will not be allowed "unless it isconvincingly and unambiguously demonstrated that the two laws are clearlyrepugnant 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 Executiveeven under the Transitory Provisions of the 1987 Constitution can norshould be regarded as an exercise of her law-making powers. At best, itcould be treated as an executive policy addressed to the Special Committeeto halt the acceptance and processing of applications for repatriationpending whatever "judgment the first Congress under the 1987 Constitution"might make. In other words, the former President did not repeal P.D. 725but left it to the first Congress once createdto deal with the matter. Ifshe had intended to repeal such law, she should have unequivocally said soinstead of referring the matter to Congress. The fact is she carefullycouched her presidential issuance in terms that clearly indicated theintention of "the present government, in the exercise of prudence and sounddiscretion" to leave the matter of repeal to the new Congress. Any otherinterpretation of the said Presidential Memorandum, such as is now beingproffered to the Court by Lee, would visit unmitigated violence not only uponstatutory construction but on common sense as well.

Second. Lee also argues that "serious congenital irregularities flawed therepatriation proceedings," asserting that Frivaldo's application therefor was"filed on June 29, 1995 x x x (and) was approved in just one day or on June30, 1995 x x x," which "prevented a judicious review and evaluation of themerits thereof." Frivaldo counters that he filed his application for repatriationwith the Office of the President in MalacanangPalace on August 17, 1994.This is confirmed by the Solicitor General. However, the Special Committeewas reactivated only on June 8, 1995, when presumably the saidCommittee started processing his application. On June 29, 1995, he filledup and re-submitted the FORM that the Committee required. Under thesecircumstances, it could not be said that there was "indecent haste" in theprocessing of his application.

Anent Lee's charge that the "sudden reconstitution of the SpecialCommittee on Naturalization was intended solely for the personal interest ofrespondent,"27 the Solicitor General explained during the oral argument onMarch 19, 1996 that such allegation is simply baseless as there were many

others who applied and were considered for repatriation, a list of whom wassubmitted by him to this Court, through a Manifestation28filed on April 3,1996.

On the basis of the parties' submissions, we are convinced that thepresumption of regularity in the performance of official duty and thepresumption of legality in the repatriation of Frivaldo have not beensuccessfully rebutted by Lee. The mere fact that the proceedings werespeeded up is by itself not a ground to conclude that such proceedings werenecessarily 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. 72529 itself requires very little of an applicant, and even therules and regulations to implement the said decree were left to the SpecialCommittee to promulgate. This is not unusual since, unlike in naturalizationwhere an alien covets a first-time entry into Philippine political life, inrepatriation the applicant is a former natural-born Filipino who is merelyseeking to reacquire his previous citizenship. In the case of Frivaldo, he wasundoubtedly a natural-born citizen who openly and faithfully served hiscountry and his province prior to his naturalization in the United States anaturalization he insists was made necessary only to escape the ironclutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-establishment ofdemocratic space, wasted no time in returning to his country of birth to offeronce more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the SolicitorGeneral, were granted repatriation argues convincingly and conclusivelyagainst the existence of favoritism vehemently posited by Raul Lee. At anyrate, any contest on the legality of Frivaldo's repatriation should have beenpursued before the Committee itself, and, failing there, in the Office of the

President, pursuant to the doctrine of exhaustion of adminiremedies.

Third. Lee further contends that assuming the assailed repatriationvalid, nevertheless it could only be effective as at 2:00 p.m. of Ju1995 whereas the citizenship qualification prescribed by theGovernment Code "must exist on the date of his election, if not whcertificate of candidacy is filed," citing our decision in G.R. 10465430held that "both the Local Government Code and the Constitution requonly Philippine citizens can run and be elected to Public office"Obvhowever, this was a mere obiteras the only issue in said case was wFrivaldo's naturalization was valid or not and NOT the effectivthereof. Since the Court held his naturalization to be invalid, then thofwhen an aspirant for public office should be a citizen was NOT re

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 must be:

* a citizen of the Philippines;

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

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

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

* In addition, "candidates for the position of governor x x x must be aleast twenty-three (23) years of age on election day."

From the above, it will be noted that the law does not specify any padate or time when the candidate must possess citizenship, unlike tresidence (which must consist of at least one year's residency imme

precedingthe day of election) and age (at least twenty three yeage on election day).

Philippine citizenship is an indispensable requirement for holding an epublic office,31 and the purpose of the citizenship qualification is nonthan to ensure that no alien, i.e., no person owing allegiance to anation, shall govern our people and our country or a unit of territory tNow, an official begins to govern or to discharge his functions only upproclamation and on the day the law mandates his term of office toSince Frivaldo re-assumed his citizenship on June 30, 1995thday32 the term of office of governor (and other elective officials) begwas therefore already qualified to be proclaimed, to hold such office discharge the functions and responsibilities thereof as of said date. Inat that time, he was already qualified to govern his native Sorsogon.

the liberal interpretation that should give spirit, life and meaning to oon qualifications consistent with the purpose for which such laenacted. So too, even from a l iteral (as distingfrom liberal) construction, it should be noted that Section 39 of theGovernment Code speaks of "Qualifications"of "ELEOFFICIALS," not of candidates. Why then should such qualificatrequired at the time of election or at the time of the filing of the certificcandidacies, as Lee insists? Literally, such qualifications otherwise expressly conditioned, as in the case of age and resideshould thus be possessed when the "elective [or elected] official" begovern, i.e., at the time he is proclaimed and atthe start of his termthis case, on June 30, 1995. Paraphrasing this Court's ruling in VasqGiapand Li Seng Giap & Sons,33if the purpose of the citizrequirement is to ensure that our people and country do not end upgoverned by aliens, i.e., persons owing allegiance to another natioaim or purpose would not be thwarted but instead achievedby conthe citizenship qualification as applying to the time of proclamationelected official and at the start of his term.

But perhaps the more difficult objection was the one raised during targument34 to the effect that the citizenship qualification shopossessed at the time the candidate (or for that matter the elected oregistered as a voter. After all, Section 39, apart from requiring the ofbe a citizen, also specifies as another item of qualification, that h"registered voter." And, under the law35 a "voter" must be a citthe Philippines. So therefore, Frivaldo could not have been a voteless a validlyregistered one if he was not a citizen at the time oregistration.

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The answer to this problem again lies in discerning the purpose of therequirement. If the law intended the citizenship qualification to bepossessed prior to election consistent with the requirement of being aregistered voter, then it would not have made citizenship a SEPARATEqualification. The law abhors a redundancy. It therefore stands to reasonthat the law intended CITIZENSHIP to be a qualification distinct from beinga VOTER, even if being a voter presumes being a citizen first. It also standsto reason that the voter requirement was included as another qualification(aside from "citizenship"), not to reiterate the need for nationality but torequire that the official be registered as a voter IN THE AREA ORTERRITORY he seeks to govern, i.e., the law states: "a registered voter inthe barangay, municipality, city, or province x x x where he intends to beelected." It should be emphasized that the Local Government Code requiresan elective official to be a registered voter. It does not require him tovote actually. Hence, registrationnot the actual votingis the core of this"qualification." In other words, the law's purpose in this second requirementis to ensure that the prospective official is actually registered in the area heseeks to govern and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasizedand Lee has notdisputed that he "was and is a registered voter of Sorsogon, and hisregistration as a voter has been sustained as valid by judicial declaration x xx In fact, he cast his vote in his precinct on May 8, 1995."36

So too, during the oral argument, his counsel stead-fastly maintained that"Mr. Frivaldo has always been a registered voter of Sorsogon. He has votedin 1987,1988,1992, then he voted again in 1995. In fact, his eligibility as avoter was questioned, but the court dismissed (sic) his eligibility as a voterand he was allowed to vote as in fact, he voted in all the previous electionsincluding on May 8,1995.37

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

There is yet another reason why the prime issue of citizenship should bereckoned from the date of proclamation, not necessarily the date of electionor date of filing of the certificate of candidacy. Section 253 of the OmnibusElection Code38 gives any voter, presumably including the defeatedcandidate, the opportunity to question the ELIGIBILITY (or the disloyalty) ofa candidate. This is the only provision of the Code that authorizes a remedyon how to contest before the Comelec an incumbent's ineligibility arisingfrom failure to meet the qualifications enumerated under Sec. 39 of theLocal Government Code. Such remedy ofQuo Warranto can be availed of"within ten days after proclamation" of the winning candidate. Hence, itis only at such time that the issue of ineligibility may be taken cognizance ofby 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 acitizen, having taken his oath of allegiance earlier in the afternoon of the

same day, then he should have been the candidate proclaimed as heunquestionably garnered the highest number of votes in the immediatelypreceding elections and such oath had already cured his previous"judicially-declared" alienage. Hence, at such time, he was no longerineligible.

But to remove all doubts on this important issue, we also hold that therepatriation of Frivaldo RETRO ACTED to the date of the filing of hisapplication on August 17,1994.

It is true that under the Civil Code of the Philippines,39 "(l)aws shall have noretroactive effect, unless the contrary is provided." But there are settledexceptions40 to this general rule, such as when the statute is CURATIVE orREMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake tocure errors and irregularities, thereby validating judicial or administrativeproceedings, acts of public officers, or private deeds and contracts which

otherwise would not produce their intended consequences by reason ofsome statutory disability or failure to comply with some technicalrequirement. They operate on conditions already existing, and arenecessarily retroactive in operation. Agpalo,42 on the other hand, says thatcurative statutes are "healing acts x x x curing defects and adding to themeans of enforcing existing obligations x x x (and) are intended to supplydefects, abridge superfluities in existing laws, and curb certain evils x x x Bytheir very nature, curative statutes are retroactive xxx (and) reach back topast events to correct errors or irregularities and to render valid andeffective attempted acts which would be otherwise ineffective for thepurpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes rto remedies or modes of procedure, which do not create new or takvested rights, but only operate in furtherance of the remedy or confirof such rights, ordinarily do not come within the legal meaningretrospective law, nor within the general rule against the retrosoperation of statutes.43

A reading of P.D. 725 immediately shows that it creates a new righalso provides for a new remedy, thereby filling certain voids in ouThus, in its preamble, P.D. 725 expressly recognizes the plight of Filipino women (who) had lost their Philippine citizenship by marraliens" and who could not, under the existing law (C. A. No. amended) avail of repatriation until "after the death of their husbandstermination of their marital status" and who could neither be benefi

the 1973 Constitution's new provision allowing "a Filipino womamarries an alien to retain her Philippine citizenship xxx" becauseprovision of the new Constitution does not apply to Filipino women wmarried aliens before said constitution took effect." Thus, P.D. 725 ga new right to these womenthe right to re-acquire Filipino citizenshduring their marital coverture, which right did not exist prior to P.D. 7the other hand, said statute also provided a new remedy and a new favor of other "natural born Filipinos who (had) lost their Phcitizenship but now desire to re-acquire Philippine citizenship," bprior to the promulgation of P.D. 725 such former Filipinos would hato undergo the tedious and cumbersome process of naturalization, bthe advent of P.D. 725 they could now re-acquire their Philippine citizunder the simplified procedure of repatriation.

The Solicitor General44 argues:

"By their very nature, curative statutes are retroactive, (DBP vs. C

SCRA 342), since they are intended to supply defects, abridge supein existing laws (Del Castillo vs. Securities and Exchange CommissPhil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was