G.R. No. 120265, September 18, 1995,
♦ Decision,
Kapunan, [J]
♦ Separate Opinion,
Padilla, Francisco, Davide, Jr., Vitug & Mendoza [JJ]
G.R. No. 120265 September 18, 1995
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO, respondents.
Separate Opinion
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that petitioner Aquino has not shown by clear and convincing evidence that he had established his residence in the second district of Makati City for a period of not less than one (1) year prior to the 8 May 1995 elections. However, I do not fully subscribe to its proposition that petitioner's residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines and on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party list representatives, 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 immediately preceding the day of the election. (emphasis supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the phrase "a resident thereof for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides.
To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections.
Noteworthy is the established fact before the Comelec that petitioner admits having maintained other residences in Metro Manila apart from his leased condominium unit in Makati's 2nd district.1 This clear admission made by petitioner against his interest weakens his argument that "where a party decides to transfer his legal residence so he can qualify for public office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicile of choice because it never entered his mind and suddenly, seemingly not contented with these other residences, he rents a condominium unit in Makati, and calls it his domicile of choice all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 and that he no longer lived and resided in his other residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue to be resolved is whether or not jurisdiction continued to be vested in the Comelec to order the Makati Board of Canvassers" to determine and proclaim the winner out of the remaining qualified candidates" after petitioner had been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted, thus:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.
There can be no dispute that if a final judgment is rendered before the election, declaring a particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate who receives the highest number of votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical enough in stating: "if any reason" no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes cast for him shall not be counted. Ubi lex non distinguit nec nos distinguere debemus (where the law does not distinguish, we should not distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution.
Therefore the candidate who received the highest number of votes from among the qualified candidates, should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
Footnotes
1 April See p. 4 Annex "C", Petition; Comelec En Banc Resolution dated 2 June 1995.
Separate Opinion
FRANCISCO, J., concurring and dissenting:
I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I wish, however, to express my views on some issues raised by the petitioner, viz., (1) jurisdiction over the disqualification suit, (2) domicile, (3) theory of legal impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal (HRET) can declare his disqualification, especially after the elections. To bolster this stand, the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v. HRET, 181 SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988); and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as supporting authorities. To my mind, this position is untenable. Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate's rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of office. Clearly, petitioner's reliance on the aforecited cases which when perused involved Congressional members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of procedure,1 and HRET decisions2 consistently holding that the proclamation the essential requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on COMELEC's jurisdiction is now barred by estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his Memorandum and Supplemental Memorandum filed before the COMELEC's Second Division, petitioner never assailed COMELEC's lacks of jurisdiction to rule on his qualification. On the contrary, he asked that the disqualification suit against him be dismissed on the following grounds: that it was filed outside the reglementary period; that the one year residence requirement of the 1987 Constitution is inapplicable due to the recent conversion of the municipality of Makati into a city under R.A. No. 7854; that he committed a simple inadvertence in filing up his certificate of candidacy; that the proper procedure to attack his qualification is by a quo warranto proceeding; that he had actually and physically resided in Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence (e.g. affidavits, amended certificate of candidacy, copy of the lease contract) to prove that he is qualified for the position. Subsequently, on May 16, 1995, in response to the COMELEC En Banc's May 15, 1995 Order suspending the proclamation of the winner, petitioner filed his Comment/Opposition with Urgent Motion To Lift Order of Suspension of Proclamation asking for the lifting of the COMELEC's order of suspension. On May 19, 1995, petitioner again filed a Memorandum and averred that the recent conversion of Makati into a city made the one-year residence requirement inapplicable; that he resided in Makati for more than a year; that quo warranto is the right remedy to question his qualification. In passing, petitioner also alleged that the issue on his qualification should be "properly" ventilated in a full-dress hearing before the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of merit (and not for lack of jurisdiction), and for lifting the suspension of his proclamation. It was only on June 01, 1995, in his Motion to File Supplemental Memorandum and Urgent Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised COMELEC's alleged lack of jurisdiction to resolve the question on his qualification. Clearly then, petitioner has actively participated in the proceedings both before the COMELEC's Second Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule is that a party who objects to the jurisdiction of the court and alleges at the same time any non-jurisdictional ground for dismissing the action is deemed to have submitted himself to the jurisdiction of the court.3 Where a party voluntary submits to the jurisdiction of the court and thereafter loses on the merits, he may not thereafter be heard to say that the court had no jurisdiction.4 In Jimenez v. Macaraig,5 the Court, citing Crisostomo v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrine in this wise:
The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People vs. Archilla, G.R. No. L-15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a posture of double-dealing without running afoul of the doctrine of estoppel. The principle of estoppel is in the interest of a sound administration of the laws. It should deter those who are disposed to trifle with the courts by taking inconsistent positions contrary to the elementary principles of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541, [1953]).6
It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision.7 Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule on his qualification must fail.
Petitioner insists that domicile is a matter of personal intention. Thus, petition asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. Thus argument to hold water, must be supported by a clear and convincing proofs that petitioner has effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co v. Electoral Tribunal House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has consistently maintained Concepcion, Tarlac, as his domicile. He moved to Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place.8 This element is lacking in this instance. Worse, public respondent Commission even found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other 'residences' in Manila or in Quezon City ([citing] TSN, May 2, 1995, p. 92)".9 Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political career and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one's acts and not by mere declarations alone.10 To acquire, or effect a change of domicile, the intention must be bonafide and unequivocal (28 C.J.S. §11). Petitioner, in my view, miserably failed to show a bonafide and unequivocal intention to effect the change of his domicile.
The theory of legal impossibility is advanced to justify non-compliance with the constitutional qualification on residency. Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI.11
Apparently, this theory is an offshoot of Republic Act. No. 7854, an act converting the municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995, established a second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with one year constitutional requirement for residence, adding an extra thirteen (13) days full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying voters one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every statute must conform and harmonize.
Finally, it has been contended that a second place candidate cannot be proclaimed a substitute winner. I find the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes should be proclaimed the duly elected representative of the district. I feel that the Labo doctrine ought to be abandoned.
I therefore vote to deny the petition and to lift the temporary restraining order issued by the Court dated June 6, 1995.
Footnotes
1 Rule 16. Election Protest. A verified petition contesting the election of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the winner.
Rule 17. Quo Warranto. A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner.
2 Puzon, v. Evangelista Cua, HRET Case No: 42, July 25, 1988, Vol, 1 HRET Reports 9; Aznar v. Bacaltos, HRET Case No, 05, January 28, 1988, Vol. 1, HRET Reports 5; Ty Deling v. Villarin, HRET Case No. 53, May 2, 1950.
3 Wang Laboratories, Inc. v. Mendoza, 156 SCRA 44 53-54 (1987).
4 La Campaña Food Products, Inc. v. Court of Appeals, 223 SCRA 152, 157 (1993).
5 219 SCRA 230 (1993).
6 Id., at 239.
7 Tijam v. Sibonghanoy, 23 SCRA 29, 35-36 (1968).
8 C.J.S. §11.
9 Resolution, SPA Wo. 95-113, June 2, 1995, p. 4.
10 Tanseco v. Arleche, 57 Phil. 227, 235 (1932).
11 Petition, June 5, 1995 p. 20.
Separate Opinion
DAVIDE, JR., J., dissenting:
In sustaining the COMELEC's acts of suspending the proclamation of petitioner Agapito A. Aquino and of proceeding to hear the disqualification case against him, the majority opinion relies on Section 6 of R.A. No. 6646 which it claims to be applicable by virtue of Section 7 thereof to petitions to deny due course to or cancel a certificate of candidacy under Section 78 of the Omnibus Election Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78, which reads:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner's certificate of candidacy is false. What is being attacked therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The amendment allows the, filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows:
Rule 25 Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate.
Sec. 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law.
Sec. 3. Period to File Petition. The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation.
Sec. 4. Summary Proceeding. The petition shall be heard summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.
The underscored portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court's interpretation in Loong vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Sections 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows:
We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be a ground for disqualification maybe disqualified from continuing as a candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code, are the following:
Sec. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
Sec. 63 DisquaIifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of 4 competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.
The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment.
Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. Sections 6 and 7 reads:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.
Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance Candidates. A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 .f Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court or the city or municipal election registrars, boards of election inspectors, and the general public in the political subdivision concerned.
and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter.
Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as follows:
Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.
by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority "the phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing the case after the election.
Fifth, even assuming that the second sentence of Section 6 of R.A. to No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong evidence of guilt or ineligibility. In such a case the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in case of municipal officials (Section 2(2), Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII, Constitution).
If what is involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C, Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner.
Besides, at the time the questioned order was issued, there was no hearing yet on the private respondents' motions for the suspension of the petitioner's proclamation. In fact, in that order the COMELEC en banc admitted that the said motions could not be resolved without hearing, thus:
Pending the resolution of the petitioners' Motion for Reconsideration filed on May 7, 1995; Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10, 1995) filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the Honorable Commission's [Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing, without violating the right of the respondent to due process. . . .
For being void from the beginning; it is as if the order of 15 May 1995 had not existed and could not, therefore, be made permanent by the COMELEC en banc through its resolution of 2 June 1995 whose dispositive portion reads in part: [c]onsequently, the order of suspension of the respondent should he obtain the winning number of votes, issued by this Commission on 15 May 1995 is now made permanent."
Absent a valid finding before the election or after the canvass of election returns that the evidence of the petitioner's guilt or ineligibility is strong, the COMELEC should not have suspended the proclamation of the petitioner. After the completion of the canvass the petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda Romualdez-Marcos vs. Commission on Elections, G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or on 7 May 1995, the Second Division's resolution of 24 April 1995 disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers of Makati, must be ordered to immediately proclaim the petitioner, without prejudice to the right of his opponents to file a petition for quo warranto with the House of Representatives Electoral Tribunal, which is the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives (Section 17, Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of the ground for the petitioner's disqualification will no longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of Makati City to reconvene and proclaim the petitioner as the winning candidate, without prejudice on the part of any aggrieved party to file the appropriate action in the House of Representatives Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
Separate Opinion
VITUG, J., separate opinion:
I find what I would consider as the relevant issues in this petition as similar in almost all material respects to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos vs. Commission on Elections and Cirilo Roy Montejo). Let me then here just reiterate what I have there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A complaint transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law.1aшphi1 These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, 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 immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has a broader connotation that mean permanent (domicile), official (place where one's official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For Civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, 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. . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non 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.
Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC; in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain.ℒαwρhi৷ The nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
x x x x x x x x x
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.
BATAS PAMBANSA BLG. 881
x x x x x x x x x
Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 (1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 (1994]) rulings. Benito vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor.1δwphο1.ρλt He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 234, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)
Accordingly, I am constrained to vote for the dismissal of the petition.
Separate Opinion
MENDOZA, J., separate opinion:
For the reasons expressed in my separate opinion in the companion case. G.R. No. 119976. Imelda Romualdez-Marcos v. Commission on Elections. I am of the opinion that the Commission on Elections has no jurisdiction over petitions for disqualification of candidates based on alleged ineligibility for the office to which they seek election.
The May 15, 1995 resolution of the COMELEC en banc, suspending he obtain the highest number of votes of Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant to §6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under §68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of §6 of R.A.. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be justified under §78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition maybe filed "exclusively on the ground that a material representation contained [in the certificate] as required under section 74 is false." There was no allegation that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation.
For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-113; that its proceedings in SPA No. 95-113, including the questioned orders, are void; and that the qualifications of petitioner Agapito A. Aquino for the position of Representative of the Second District of the City of Makati may only be inquired into by the House of Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at this time on the question whether, in the event the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highest number of votes is entitled to be declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of the Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6, 1995. May 15, 1995, and the two orders both dated June 2, 1995, so far as they declare petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second District of the City of Makati and direct the City Board of Canvassers of Makati to determine and proclaim the winner out of the remaining qualified candidates.
Narvasa, J., concurs.
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