EN BANC

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts,
however, she is not entitled to complete exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her batterer-husband at the time she shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted upon
an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering
she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight
months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental
state, which overcame her reason and impelled her to vindicate her life and her unborn childs.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on
parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial
Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article
246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.

The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages.[2]

The Information[3] charged appellant with parricide as follows:

That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province
of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a
hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following
wounds, to wit:

Cadaveric spasm.

Body on the 2nd stage of decomposition.

Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its
sockets and tongue slightly protrudes out of the mouth.

Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of
the brain, laceration of the dura and meningeal vessels producing severe intracranial
hemorrhage.

Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

Abdomen distended w/ gas. Trunk bloated.

which caused his death.[4]

With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3,
1997.[6] In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise:

Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter,
they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Bens younger brother,
Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.

On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They
each had two (2) bottles of beer before heading home. Arturo would pass Bens house before reaching
his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home
passing the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which
Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas rented house appeared uninhabited and was always closed.

On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan
who unfortunately had no money to buy it.

That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc
when he saw appellant going out of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to
Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from
his house being rented by Ben and appellant. Steban went there to find out the cause of the stench
but the house was locked from the inside. Since he did not have a duplicate key with him, Steban
destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen
door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the
unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben
lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back
of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his
sons misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul smell at the Genosas rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went
inside the bedroom where they found the dead body of Ben lying on his side wrapped with a
bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one
corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one
and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The
bedroom was not in disarray.

About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at
the back of the house before the postmortem examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body was already
decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the
Information for parricide later filed against appellant. She concluded that the cause of Bens death
was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture
of the occipital [bone].

Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel,
Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel
went home despite appellants request for her to sleep in their house.

Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping
knife, cut the television antenna or wire to keep her from watching television. According to appellant,
Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her
around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home,
Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her
by the neck, and told her You might as well be killed so nobody would nag me. Appellant testified
that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he
got a three-inch long blade cutter from his wallet. She however, smashed the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the pipe
as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.

Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
distorted the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom.[7] (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

 1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science
in Business Administration, and was working, at the time of her husbands death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie
Bianca.

2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against
their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.

3. After their marriage, they lived first in the home of Bens parents, together with Bens
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben lived happily. But
apparently, soon thereafter, the couple would quarrel often and their fights would become violent.

4. Bens brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home
drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding
a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the
house but after a week, she returned apparently having asked for Bens forgiveness. In another
incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and
saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after
Marivic had apparently again asked for Bens forgiveness.

Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in
1986 or 1985 more or less here in Fatima, Ormoc City. She said as the marriage went along, Marivic
became already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two
sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table
knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on
the forehead using a sharp instrument until the eye was also affected. It was wounded and also the
ear and her husband went to Ben to help; and the third incident was in 1995 when the couple had
already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone
cracked.

Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected
our salary, we went to the cock-fighting place of ISCO. They stayed there for three (3) hours, after
which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they
bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking
with Ben, after which he went across the road to wait for the runner and the usher of the masiao game
because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet. On his way home at about 9:00 in the evening, he heard the
Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by
Ben to feed his fighting cocks. Basobas testimony on the root of the quarrel, conveniently overheard
by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am
innocent. Basobas thought they were joking.

He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her
and that Ben would always take her back after she would leave him so many times.

Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben even had a wound on the right forehead. He had known the couple for only
one (1) year.
 6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on
the bed, and sometimes beat her.

These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would
beat her or quarrel with her every time he was drunk, at least three times a week.

7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help
and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a
choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the
same night as that testified to by Arturo Busabos.[8])

7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the
window of his hut which is located beside the Genosa house and saw the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He
said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning.
(Again, please note that this was the same night as that testified to by Arturo Basobas).

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte.
His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be
living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him
that Ben would pawn items and then would use the money to gamble. One time, he went to their
house and they were quarreling. Ben was so angry, but would be pacified if somebody would come.
He testified that while Ben was alive he used to gamble and when he became drunk, he would go to
our house and he will say, Teody because that was what he used to call me, mokimas ta, which
means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I
would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had
been injured too. He said he voluntarily testified only that morning.

7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon
of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in
the market place, several taverns and some other places, but could not find him. She accompanied
Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be
battered by her husband. When they got to the Genosa house at about 7:00 in the evening, Miss
Arano said that her husband was already there and was drunk. Miss Arano knew he was drunk
because of his staggering walking and I can also detect his face. Marivic entered the house and she
heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the
house as Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple
were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran
into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and
showed us the knife through the window grill and he scared us. She said that Marivic shouted for
help, but no one came. On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient many times and had also received treatment from other doctors. Dr.
Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical
injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert
witness.

xxx xxx xxx

Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23)
separate occasions was marked at Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos
Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries
reported was marked as Exhibit 3.

On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the
injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified
to examine the psychological make-up of the patient, whether she is capable of committing a crime or
not.

7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that
about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought
his help to settle or confront the Genosa couple who were experiencing family troubles. He told
Marivic to return in the morning, but he did not hear from her again and assumed that they might
have settled with each other or they might have forgiven with each other.

xxx xxx xxx

Marivic said she did not provoke her husband when she got home that night it was her husband who
began the provocation. Marivic said she was frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.

Marivic testified that during her marriage she had tried to leave her husband at least five (5) times,
but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben
was violent and abusive towards her that night was because he was crazy about his recent girlfriend,
Lulu x x x Rubillos.

On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom;
that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony;
that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila,
rented herself a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she
did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby;
and that she was arrested in San Pablo, Laguna.

Answering questions from the Court, Marivic said that she threw the gun away; that she did not know
what happened to the pipe she used to smash him once; that she was wounded by Ben on her wrist
with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged
her towards the drawer when he saw that she had packed his things.

9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made
of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.

10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the
time of the incident, and among her responsibilities as such was to take charge of all medico-legal
cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986. She was called by the
police to go to the Genosa residence and when she got there, she saw some police officer and
neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his
back to the door. He was wearing only a brief.
 xxx xxx xxx

Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the
head which she described as a fracture. And that based on her examination, Ben had been dead 2
or 3 days. Dra. Cerillo did not testify as to what caused his death.

Dra. Cerillo was not cross-examined by defense counsel.

11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with
the crime of PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x
wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.

12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August
1998.

13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding
Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.

14. The case was elevated to this Honorable Court upon automatic review and, under date of
24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.

The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to
the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her Brief without counsels to the Court.

This letter was stamp-received by the Honorable Court on 4 February 2000.

16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to
determine her state of mind at the time she killed her husband; and finally, to allow a partial re-
opening of the case a quo to take the testimony of said psychologists and psychiatrists.

Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the death wound (as culled from
the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe.

17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics
URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert
psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with
the copies of the TSN and relevant documentary evidence, if any, submitted.

18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but
that the clinical interviews and psychological assessment were done at her clinic.

Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own
private clinic and connected presently to the De La Salle University as a professor. Before this, she
was the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling
psychologist of the National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the
U.P. She was the past president of the Psychological Association of the Philippines and is a member of
the American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a
member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of families involved in
domestic violence and nullity cases. She was with the Davide Commission doing research about
Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs.
Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on
battered women as this is the first case of that nature.

Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological
profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over
a period of ten (10) years and discovered that there are lots of variables that cause all of this marital
conflicts, from domestic violence to infidelity, to psychiatric disorder.

Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse,
verbal abuse, and emotional abuse to physical abuse and also sexual abuse.

xxx xxx xxx

Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of
herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly
of themselves and so when the violence would happen, they usually think that they provoke it, that
they were the one who precipitated the violence, they provoke their spouse to be physically, verbally
and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from broken homes.

Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very arrogant, very
hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot
of times they are involved in vices like gambling, drinking and drugs. And they become violent. The
batterer also usually comes from a dysfunctional family which over-pampers them and makes them
feel entitled to do anything. Also, they see often how their parents abused each other so there is a lot
of modeling of aggression in the family.

Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her
hope her husband will change, the belief in her obligations to keep the family intact at all costs for the
sake of the children.

xxx xxx xxx

Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering physical violence on both of
them. She said that in a normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an abnormal marital relationship,
the abuse occurs day in and day out, is long lasting and even would cause hospitalization on the
victim and even death on the victim.
 xxx xxx xxx

Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because inspite of her feeling of self-
confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation
which she sees herself as damaged and as a broken person. And at the same time she still has the
imprint of all the abuses that she had experienced in the past.

xxx xxx xxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity
or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of
herself as a victim.

xxx xxx xxx

19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared
and testified before RTC-Branch 35, Ormoc City.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry
for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was
called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for
twenty six (26) years. Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a
member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan
Medical Society; and the Philippine Association of Military Surgeons.

He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy
from the Period 1954 1978 which was presented twice in international congresses. He also authored
The Mental Health of the Armed Forces of the Philippines 2000, which was likewise published
internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-
Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.

Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology
deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.

Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered
a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases.
In those days, the primordial intention of therapy was reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.

As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this x x x is very dangerous.

In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or
neurologic anxcietism. It is produced by overwhelming brutality, trauma.
 xxx xxx xxx

Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at that time. She thinks of nothing but the suffering.

xxx xxx xxx

A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become hard-headed and persistent. She has higher
sensitivity and her self-world is damaged.

Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally
internalizes what is around him within the environment. And it becomes his own personality. He is
very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it
there are doubts in himself and prone to act without thinking.

xxx xxx xxx

Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who
administered the battering, that re-experiencing of the trauma occurred (sic) because the individual
cannot control it. It will just come up in her mind or in his mind.

xxx xxx xxx

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and
primarily with knives. Usually pointed weapons or any weapon that is available in the immediate
surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to
weapons when she has reached the lowest rock bottom of her life and there is no other recourse left
on her but to act decisively.

xxx xxx xxx

Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2)
hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a
help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

xxx xxx xxx

On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her
husband Marivicc mental condition was that she was re-experiencing the trauma. He said that we
are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It
will just come in flashes and probably at that point in time that things happened when the re-
experiencing of the trauma flashed in her mind. At the time he interviewed Marivic she was more
subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the
predicament she is involved.

xxx xxx xxx

20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-
opened trial a quo were elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly
defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the
back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding
the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the
battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the
proceedings taken as well as to submit copies of the TSN and additional evidence, if any.

Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan[10] and Alfredo Pajarillo,[11] supposedly experts on domestic
violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.[12]

The Issues

Appellant assigns the following alleged errors of the trial court for this Courts consideration:

1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and
further gravely erred in concluding that Ben Genosa was a battered husband.

5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

6. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby erroneously
convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of
death.[13]
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or
overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that
could affect the outcome of the case.[14]

In appellants first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial courts disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting
on the evidence adduced as to self-defense. We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the
basis of those and of the documentary evidence on record -- made his evaluation, findings and
conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence
presented.

Neither do we find the appealed Decision to have been made in an obviously hasty manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with
dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If
at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions
in substantial compliance with his constitutional obligation.[15]

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally
married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court
held:

The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the deceased is the
marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected to.

Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased
spouse -- attested in court that Ben had been married to Marivic.[17] The defense raised no objection
to these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon
the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made.[19] Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a
gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head,
the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts
actually caused the victims death. Determining which of these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the
novel defense of battered woman syndrome, for which such evidence may have been relevant. Her
theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the
legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the
surrounding facts that led to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and
control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.[20] As the former further points out, neither the trial court nor the
prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial courts appreciation of these circumstances has
little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense
of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in
criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of
proof from the prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time.[24]

A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical
or psychological behavior by a man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in any form of intimate relationship
with men. Furthermore, in order to be classified as a battered woman, the couple must go through the
battering cycle at least twice. Any woman may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the situation, she is defined as a battered
woman.[25]

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterers actions; and false hopes that the relationship will
improve.[26]
More graphically, the battered woman syndrome is characterized by the so-called cycle of
violence,[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase.[28]

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse
or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of
kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows
herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged,
because her placatory and passive behavior legitimizes his belief that he has the right to abuse her
in the first place.

However, the techniques adopted by the woman in her effort to placate him are not usually successful,
and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and
the growing tension and despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer
becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence spirals out
of control and leads to an acute battering incident.[29]

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes,
death. The battered woman deems this incident as unpredictable, yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the violence. Its nature can be as
unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman
usually realizes that she cannot reason with him, and that resistance would only exacerbate her
condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30]

The final phase of the cycle of violence begins when the acute battering incident ends. During this
tranquil period, the couple experience profound relief. On the one hand, the batterer may show a
tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries
to make up for it, begging for her forgiveness and promising never to beat her again. On the other
hand, the battered woman also tries to convince herself that the battery will never happen again; that
her partner will change for the better; and that this good, gentle and caring man is the real person
whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though,
is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially
if she remains with him. Generally, only after she leaves him does he seek professional help as a way
of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly
tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other.[31]

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She
herself described her heart-rending experience as follows:
ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a
behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and
cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on

the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and
he said sorry.

Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx xxx xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.
 xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred,
after your marriage, from that time on, how frequent was the occurrence?

A Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A Three times a week.

Q Do you mean three times a week he would beat you?

A Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
bolstered her foregoing testimony on chronic battery in this manner:

Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of
eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr.
Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that
correct?

A Yes, sir.
Q Did you actually physical examine the accused?

A Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you
mean by abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force
is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me
that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for
some other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23)
times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less stress
related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in line
of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all
comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified
that he had seen the couple quarreling several times; and that on some occasions Marivic would run to
him with bruises, confiding that the injuries were inflicted upon her by Ben.[35]

Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the
Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the couple
were very noisy and I heard something was broken like a vase. Then Marivic came running into
Ecels room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a
knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or
heard the couple quarreling.[37] Marivic relates in detail the following backdrop of the fateful night when
life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded
the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was
his father, then my second child said, he was not home yet. I was worried because that was payday, I
was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.
Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 oclock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because
I had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again
last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Arao, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q Whats the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he might
be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear
that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation
and he switch off the light and I said to him, why did you switch off the light when the children were
there. At that time I was also attending to my children who were doing their assignments. He was
angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the
antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was
already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then
he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that
you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.
Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?
A Its a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me. [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latters ordeal to
the court a quo as follows:

Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe
to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and
to physical abuse. The husband had a very meager income, she was the one who was practically the
bread earner of the family. The husband was involved in a lot of vices, going out with barkadas,
drinking, even womanizing being involved in cockfight and going home very angry and which will
trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the
reason that the husband even accused her of infidelity, the husband was saying that the child she was
carrying was not his own. So she was very angry, she was at the same time very depressed because
she was also aware, almost like living in purgatory or even hell when it was happening day in and day
out. [39]

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

Q In your first encounter with the appellant in this case in 1999, where you talked to her about three
hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information
were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the
case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is
the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-
defense. I also believe that there had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because of all the battering that happened and
so she became an abnormal person who had lost shes not during the time and that is why it happened
because of all the physical battering, emotional battering, all the psychological abuses that she had
experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q And you also said that you administered [the] objective personality test, what x x x [is this] all
about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is
to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the
data that Im gathering from her are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,[42] which was based on his interview and examination of Marivic Genosa. The Report said that
during the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine,
normal and happy -- until Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees.

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her
husband whenever he was drunk.

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, [s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x.[43]

From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on
wives and common law partners are both relevant and necessary. How can the mental state of the
appellant be appreciated without it? The average member of the public may ask: Why would a
woman put up with this kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring hospitalization? We would expect the
woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a
new life for herself? Such is the reaction of the average person confronted with the so-called battered
wife syndrome.[44]

To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to
repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and refute common myths and
misconceptions about battered women.[45]

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had
a significant impact in the United States and the United Kingdom on the treatment and prosecution of
cases, in which a battered woman is charged with the killing of her violent partner. The psychologist
explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the
latters ability to act decisively in her own interests, making her feel trapped in the relationship with
no means of escape.[46] In her years of research, Dr. Walker found that the abuse often escalates at
the point of separation and battered women are in greater danger of dying then.[47]

Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them.[48]

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latters belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated probably ten to twenty thousand violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result
of his experience with domestic violence cases, he became a consultant of the Battered Woman Office
in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in
which the physical abuse on the woman would sometimes even lead to her loss of consciousness.[50]

Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress
disorder, a form of anxiety neurosis or neurologic anxietism.[51] After being repeatedly and severely
abused, battered persons may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victims ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do
will have a predictable positive effect.[52]

A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
even if a person has control over a situation, but believes that she does not, she will be more likely to
respond to that situation with coping responses rather than trying to escape. He said that it was the
cognitive aspect -- the individuals thoughts -- that proved all-important. He referred to this
phenomenon as learned helplessness. [T]he truth or facts of a situation turn out to be less
important than the individuals set of beliefs or perceptions concerning the situation. Battered women
dont attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances.[54]

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of
her partner, she also believes that he is capable of killing her, and that there is no escape. [55] Battered
women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless
a shelter is available, she stays with her husband, not only because she typically lacks a means of self-
support, but also because she fears that if she leaves she would be found and hurt even more.[57]

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the cycle of violence supposedly characterizing
the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating
to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly
described the tension-building phase of the cycle. She was able to explain in adequate detail the
typical characteristics of this stage. However, that single incident does not prove the existence of the
syndrome. In other words, she failed to prove that in at least another battering episode in the past,
she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Bens relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mothers or fathers house;[58] that Ben would seek
her out, ask for her forgiveness and promise to change; and that believing his words, she would return
to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe
that she was the only hope for Ben to reform? And that she was the sole support of his emotional
stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each others testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in
order to be appreciated. To repeat, the records lack supporting evidence that would establish all the
essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right
of the woman to kill her abusive partner. Evidence must still be considered in the context of self-
defense.[59]

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is
the state of mind of the battered woman at the time of the offense[60] -- she must have actually
feared imminent harm from her batterer and honestly believed in the need to kill him in order to save
her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a
real threat on ones life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of self-
defense:[62]

Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.

Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden
and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the
present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been
able to withdraw from his violent behavior and escape to their childrens bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he
posed had ended altogether. He was no longer in a position that presented an actual threat on her life
or safety.

Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of actual physical assault at the
time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To
require the battered person to await an obvious, deadly attack before she can defend her life would
amount to sentencing her to murder by installment.[65] Still, impending danger (based on the
conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must
be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66]
Considering such circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the
absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim.[68] Thus, Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances
that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by the parties.[69]

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced
with her husband constitutes a form of [cumulative] provocation which broke down her psychological
resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced at the hands of her
abuser husband a state of psychological paralysis which can only be ended by an act of violence on
her part. [70]

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain
taking, repetitious battering, [and] repetitious maltreatment as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.[71] Expounding thereon, he said:

Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is the public
and social support available to the victim. If nobody is interceding, the more she will go to that
disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is
injury to the head, banging of the head like that. It is usually the very very severe stimulus that
precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow
on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this
situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is
very susceptible because the woman will not only protect herself, she is also to protect the fetus. So
the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will manifest now a
severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is
longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months
you become chronic. It is stated in the book specifically that after six (6) months is chronic. The
[a]typical one is the repetitious battering but the individual who is abnormal and then become normal.
This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress
disorder. [72]

Answering the questions propounded by the trial judge, the expert witness clarified further:

Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or
her mental capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated.[73]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
cumulative provocation which broke down her psychological resistance and natural self-control,
psychological paralysis, and difficulty in concentrating or impairment of memory.

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness
that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal
Code, this circumstance should be taken in her favor and considered as a mitigating factor. [76]

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this
state of mind is present when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome
reason.[77] To appreciate this circumstance, the following requisites should concur: (1) there is an act,
both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed
from the commission of the crime by a considerable length of time, during which the accused might
recover her normal equanimity.[78]

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being
killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus.[79] His abusive and violent acts, an
aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillos
testimony[80] that with neurotic anxiety -- a psychological effect on a victim of overwhelming
brutality [or] trauma -- the victim relives the beating or trauma as if it were real, although she is not
actually being beaten at the time. She cannot control re-experiencing the whole thing, the most
vicious and the trauma that she suffered. She thinks of nothing but the suffering. Such reliving
which is beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery
inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time
resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of
her will power without depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on
her prior to the killing. That the incident occurred when she was eight months pregnant with their
child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child.
Such perception naturally produced passion and obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make.[81] In order to qualify an act as treacherous, the circumstances invoked
must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence.[82] Because of the gravity of the
resulting offense, treachery must be proved as conclusively as the killing itself.[83]

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben
had been found lying in bed with an open, depressed, circular fracture located at the back of his
head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to
establish indubitably. Only the following testimony of appellant leads us to the events surrounding his
death:

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that
you might as well be killed so there will be nobody to nag me

Q So you said that he dragged you towards the drawer?

A Yes, sir.
Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3
inches long, how does it look like?

A Three (3) inches long and inch wide.

Q It is a flexible blade?

A Its a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the
other room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was
frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that Ive been through with him, I took pity on myself and I
felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot
him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victims position relative to appellants at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant.[85]

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have
been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act
without risk from any defense that might be put up by the party attacked.[86] There is no showing,
though, that the present appellant intentionally chose a specific means of successfully attacking her
husband without any risk to herself from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only at about the same moment when she
decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and
deliberately employed the method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor.[87]

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to have
attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to
Article 64 of paragraph 5[88] of the same Code.[89] The penalty of reclusion temporal in its medium
period is imposable, considering that two mitigating circumstances are to be taken into account in
reducing the penalty by one degree, and no other modifying circumstances were shown to have
attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of
the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum;
to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for and be released from
detention on parole.[91]

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis--vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the
proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellants counsel, Atty. Katrina Legarda, have helped it in such
learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of
law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the
Revised Penal Code. Only Congress, in its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman
syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the killing of the batterer must have
produced in the battered persons mind an actual fear of an imminent harm from her batterer and an
honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the
accused, based on the history of violence perpetrated by the former against the latter. Taken
altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of
the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However,
there being two (2) mitigating circumstances and no aggravating circumstance attending her
commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the
director of the Bureau of Corrections may immediately RELEASE her from custody upon due
determination that she is eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.

Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.

Ynares-Santiago J., see dissenting opinion.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances surrounding
the incident upon which these proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of
the doubt as to the weight of the evidence touching those details of the incident as to which there can
be said to be any doubt, the following statement of the material facts disclose by the record may be
taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or
muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest
building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the
house except the two servants, who jointly occupied a small room toward the rear of the building, the
door of which opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was covered by a heavy growth of
vines for its entire length and height. The door of the room was not furnished with a permanent bolt or
lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the
door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by
placing against it a chair. In the room there was but one small window, which, like the door, opened on
the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that
it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy
growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that
the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill
you." At that moment he was struck just above the knee by the edge of the chair which had been
placed against the door. In the darkness and confusion the defendant thought that the blow had been
inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in
the light of after events, it is probable that the chair was merely thrown back into the room by the
sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept
under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his
roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately recognized him in the moonlight.
Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and
ran back to his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night, he
should knock at the door and acquiant his companion with his identity. Pascual had left the house early
in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibaez, servants
employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from
their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual
going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard
cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and
Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it
be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in order
to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where
he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of
simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio
mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's
thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warnings defendant would have been wholly
justified in using any available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake
or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g.,
in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent,"
and works an acquittal; except in those cases where the circumstances demand a conviction under the
penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit
vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs.
State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held criminally liable, the commission
of the acts set out in the various definitions subjects the actor to the penalties described therein,
unless it appears that he is exempted from liability under one or other of the express provisions of
article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of
legislative enactment in the United States, the definitions of crimes and offenses as set out in the
Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential
ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein
defined, in the absence of express provisions modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different from that which he intended
to commit. And it is to be observed that even these exceptions are more apparent than real, for "There
is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it
is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative
criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
between a disposition to do a great harm and a disposition to do harm that one of them may very well
be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the
disposition to do harm, which the criminal shows by committing it, and since this disposition is greater
or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the
crime follows the same proportion; it is greater or less according as the crime in its own nature does
greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done,
having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one
particular form or another.

Article 1 of the Penal Code is as follows:

 Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary
shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this
article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which were expressly set out in the definition
of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco
insists, their use in the former code was redundant, being implied and included in the word "voluntary."
(Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are
more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.
 He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein, in
the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the
word "willful" as used in English and American statute to designate a form of criminal intent. It has
been said that while the word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and approximate the idea of the milder
kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said
to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it
means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are
words indicating intent, more purely technical than "willful" or willfully," but "the difference between
them is not great;" the word "malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's
New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one
of the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that

There can be no crime, large or small, without an evil mind. In other words, punishment is the
sentence of wickedness, without which it can not be. And neither in philosophical speculation
nor in religious or mortal sentiment would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a principle of our legal system, as
probably it is of every other, that the essence of an offense is the wrongful intent, without
which it can not exists. We find this doctrine confirmed by

Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit
rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of
mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes
 the place of justice, every guard around the innocent is cast down. But with the return of
reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of every
form of evil. And whenever a person is made to suffer a punishment which the community
deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of
the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of
what has the appearance of wrong, with the utmost confidence that the plea, if its truth is
credited, will be accepted as good. Now these facts are only the voice of nature uttering one of
her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines,
because first in nature from which the law itself proceeds, that no man is to be punished as a
criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat
("Ignorance of the law excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power
of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without discussing these exceptional
cases at length, it is sufficient here to say that the courts have always held that unless the intention of
the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer
is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158,
notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind is at fault,
because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing
which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On
the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all
cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows
the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor
from criminal liability provided always there is no fault or negligence on his part; and as laid down by
Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P.,
32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207,
209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good
faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as
they appeared to him at the time when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or
other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence
of facts which will justify a killing or, in terms more nicely in accord with the principles on
which the rule is founded, if without fault or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is
unfortunately extinguished. In other words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning them, and defends himself correctly according to
what he thus supposes the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal
Law, sec. 305, and large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his
friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will
doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide
or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the
presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient
of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by law" was committed
"voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report
of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his hand,
strikes B over the head before or at the instant the pistol is discharged; and of the wound B
dies. It turns out the pistol was loaded with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more criminal that he would have been if
there had been a bullet in the pistol? Those who hold such doctrine must require that a man so
attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a
doctrine which would entirely take away the essential right of self-defense. And when it is
considered that the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed to flow from this
principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which
are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company
only of his wife, without other light than reflected from the fire, and that the man with his back
to the door was attending to the fire, there suddenly entered a person whom he did not see or
know, who struck him one or two blows, producing a contusion on the shoulder, because of
which he turned, seized the person and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the unknown lying on the floor, and left the
house. It turned out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about six days in consequence
of cerebral congestion resulting from the blow. The accused, who confessed the facts, had
always sustained pleasant relations with his father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the circumstances related in paragraph
4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he
was an illegal aggressor, without sufficient provocation, and that there did not exists rational
necessity for the employment of the force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of imprisonment, with accessory penalty
and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the
 following sentence: "Considering, from the facts found by the sentence to have been proven,
that the accused was surprised from behind, at night, in his house beside his wife who was
nursing her child, was attacked, struck, and beaten, without being able to distinguish with
which they might have executed their criminal intent, because of the there was no other than
fire light in the room, and considering that in such a situation and when the acts executed
demonstrated that they might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was capable
of producing death, and in the darkness of the house and the consteration which naturally
resulted from such strong aggression, it was not given him to known or distinguish whether
there was one or more assailants, nor the arms which they might bear, not that which they
might accomplish, and considering that the lower court did not find from the accepted facts
that there existed rational necessity for the means employed, and that it did not apply
paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain,
February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part
of the city, upon arriving at a point where there was no light, heard the voice of a man, at a
distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and
almost at the same money, he fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have
killed me," and hastening to his assistance, finding the body lying upon the ground, he cried,
"Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of
a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from responsibility as the author of this
homicide, as having acted in just self-defense under the circumstances defined in paragraph 4,
article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only
found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The supreme court acquitted the
accused on his appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person calling to him, and that
under the circumstances, the darkness and remoteness, etc., the means employed were
rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I,
p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large
stone thrown against his window at this, he puts his head out of the window and inquires
what is wanted, and is answered "the delivery of all of his money, otherwise his house would
be burned" because of which, and observing in an alley adjacent to the mill four individuals,
one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be declared exempt from
criminal responsibility as having acted in just self-defense with all of the requisites of law? The
criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds
that there existed in favor of the accused a majority of the requisites to exempt him from
criminal responsibility, but not that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for the homicide committed.
Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing
at the malefactors, who attack his mill at night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of
May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs
of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of
the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should
be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory
penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with
the costs of both instances, thereby reversing the judgment appealed from.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is
kept in the forefront of our minds the basic principles of popular government, and if we give expression
to the paramount purpose for which the courts, as an independent power of such a government, were
constituted. The primary question is Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the city
of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district
for women of ill repute, which had been permitted for a number of years in the city of Manila, closed.
Between October 16 and October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with
some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo
Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no opportunity to collect their
belongings, and apparently were under the impression that they were being taken to a police station
for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had
not been asked if they wished to depart from that region and had neither directly nor indirectly given
their consent to the deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers
with their unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted
for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael
Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the city of Manila. The
further happenings to these women and the serious charges growing out of alleged ill-treatment are of
public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that
some of the women married, others assumed more or less clandestine relations with men, others went
to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion
found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees presented
an application for habeas corpus to a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the women who were sent away from
Manila to Davao and, as the same questions concerned them all, the application will be considered as
including them. The application set forth the salient facts, which need not be repeated, and alleged
that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties, because the action should have
been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the
respondents did not have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit
attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of
a member of the court, that these women had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein
named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in
whose behalf the writ was issued were produced in court by the respondents. It has been shown that
three of those who had been able to come back to Manila through their own efforts, were notified by
the police and the secret service to appear before the court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand taken by him when pleading to the original petition copied
a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer
thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the women were contained with their life in
Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not
possible to fulfill the order of the Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had married or signed
contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women
under his control and that therefore it was impossible for him to obey the mandate. The court, after
due deliberation, on December 10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women not in Manila be brought before
the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first instance of Davao or the clerk
of that court, renounce the right, or unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order
announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and eight others who had been brought
to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted
the facts and further endeavored to account for all of the persons involved in the habeas corpus. In
substance, it was stated that the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women; that eighty-one women were found
in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced
the right through sworn statements; that fifty-nine had already returned to Manila by other means, and
that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and
the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an
hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal
of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de
los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the
record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled these one hundred and seventy women were isolated
from society, and then at night, without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such
was not the case is shown by the mere fact that the presence of the police and the constabulary was
deemed necessary and that these officers of the law chose the shades of night to cloak their secret
and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the
respondents.

With this situation, a court would next expect to resolve the question By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to
another distant locality within the Philippine Islands? We turn to the statutes and we find

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No.
519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila
provide for the conviction and punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been
convicted of vagrancy, to the homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain
for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine Islands and these women despite their
being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the
same constitutional guaranties as are other citizens to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even
the President of the United States, who has often been said to exercise more power than any king or
potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief
of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of
the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any
other official can do the same. And if any official can exercise the power, then all persons would have
just as much right to do so. And if a prostitute could be sent against her wishes and under no law from
one locality to another within the country, then officialdom can hold the same club over the head of
any citizen.

Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard individual
liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the
Supreme Court of the United States, "is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the
authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life,
or the means of living, or any material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing
the writ of habeas corpus, and makes clear why we said in the very beginning that the primary
question was whether the courts should permit a government of men or a government of laws to be
established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
 residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any
public officer has violated this provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that
the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It
would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be
restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore
might be continued indefinitely until the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of
habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights
of the parties are left untouched by decision on the writ, whose principal purpose is to set the
individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to
its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2)
that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor
and the chief of police of the city of Manila only extends to the city limits and that perforce they could
not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it impossible
for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be
submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec.
527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to
grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly
imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal
Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere
in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in
the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance
it was not shown that the Court of First Instance of Davao was in session, or that the women had any
means by which to advance their plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it
was shown that the case involved parties situated in different parts of the Islands; it was shown that
the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was
to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate
court. The failure of the superior court to consider the application and then to grant the writ would
have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed
for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of
such dictum is found to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of liberty which began in Manila continued
until the aggrieved parties were returned to Manila and released or until they freely and truly waived
his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to
whom the writ is addressed has illegally parted with the custody of a person before the application for
the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under
no authority of law, could deport these women from the city of Manila to Davao, the same officials
must necessarily have the same means to return them from Davao to Manila. The respondents, within
the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to
change her domicile and to avow the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or
not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of
the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this time
was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices.
On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C.
J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and
law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of
Justice Campbell was predicated to a large extent on his conception of the English decisions, and since,
as will hereafter appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right that
"Magna Charta was such a fellow that he will have no sovereign," and after the extension of its
benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should
now be discovered that evasion of that great clause for the protection of personal liberty,
which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject being brought to their notice. . . .

The second proposition that the statutory provisions are confined to the case of
imprisonment within the state seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed
to give the right, but to compel the observance of rights which existed. . . .
 The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the prison
doors, and set the prisoner free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon the respondent, and if he fails
to obey it, the means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs.
Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young
[1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of
English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to produce the child. The judge at
chambers gave defendant until a certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed over by him to another; that it
was no longer in his custody or control, and that it was impossible for him to obey the writ. He was
found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her
being taken and detained. That is a command to bring the child before the judge and must be
obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it
could be shown that by reason of his having lawfully parted with the possession of the child
before the issuing of the writ, the defendant had no longer power to produce the child, that
might be an answer; but in the absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before the issue of the writ.
The question is whether there has been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B.
D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N.
S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in
court, and refusing to produce them, ordered that he be committed to the custody of the marshall until
he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the
term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs.
Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme
Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yigo to present the persons named in the writ before the court on December 2, 1918. The order was
dated November 4, 1918. The respondents were thus given ample time, practically one month, to
comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the
21st of November before sending a telegram to the provincial governor of Davao. According to the
response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to do so because of having
contracted debts. The half-hearted effort naturally resulted in none of the parties in question being
brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they could
have shown by affidavit that on account of sickness or infirmity those persons could not safely be
brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in whose behalf the writ was granted; they did not show
impossibility of performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women were
contended with their life in Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable number of the women, at least
sixty, could have been brought back to Manila is demonstrated to be found in the municipality of
Davao, and that about this number either returned at their own expense or were produced at the
second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort to
get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to give the respondents another
chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident
finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of
habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte
Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax,
and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this
does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The
hacendero Yigo appears to have been drawn into the case through a misconstruction by counsel of
telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of any
disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for
the petitioners, which brings him into this undesirable position, must be granted. When all is said and
done, as far as this record discloses, the official who was primarily responsible for the unlawful
deportation, who ordered the police to accomplish the same, who made arrangements for the
steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who
later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ of
habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply substantially
with the second order of the court, he has purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two extremes appears to lie the correct finding.
The failure of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be considered only
as extenuating his conduct. A nominal fine will at once command such respect without being unduly
oppressive such an amount is P100.

In resume as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of
court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the
Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the
city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25,
1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses
of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a steamer and transported to Davao,
considering that the existence of the said houses of prostitution has been tolerated for so long a time,
it is undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority
of any legal provision which constitutes an exception to the laws guaranteeing the liberty and the
individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with the
order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the women
who are still in Davao so that they may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and
his subordinates, if we take into account the difficulties encountered in bringing the said women who
were free at Davao and presenting them before this court within the time fixed, inasmuch as it does
not appear that the said women were living together in a given place. It was not because they were
really detained, but because on the first days there were no houses in which they could live with a
relative independent from one another, and as a proof that they were free a number of them returned
to Manila and the others succeeded in living separate from their companions who continued living
together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of the
said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally and
for some days reside, the inhabitants thereof being more than three hundred thousand (300,000) who
can not, with indifference and without repugnance, live in the same place with so many unfortunate
women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke
in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the
spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another woman
who is usually older than she is and who is the manager or owner of a house of prostitution, or
spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily and
with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution,
because it is evident that she can not join the society of decent women nor can she expect to get the
same respect that is due to the latter, nor is it possible for her to live within the community or society
with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and
life, she should therefore be comprised within that class which is always subject to the police and
sanitary regulations conducive to the maintenance of public decency and morality and to the
conservation of public health, and for this reason it should not permitted that the unfortunate women
dedicated to prostitution evade the just orders and resolutions adopted by the administrative
authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which being
a very drastic remedy may be considered arbitrary, have failed to consider with due reflection the
interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of their
children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal
life they assumed, were obliged to change their residence not by a private citizen but by the mayor of
the city who is directly responsible for the conservation of public health and social morality, the latter
could take the step he had taken, availing himself of the services of the police in good faith and only
with the purpose of protecting the immense majority of the population from the social evils and
diseases which the houses of prostitution situated in Gardenia Street have been producing, which
houses have been constituting for years a true center for the propagation of general diseases and
other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses
of prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith
violate the constitutional laws which guarantees the liberty and the individual rights of every Filipino,
inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of
which they have voluntarily renounced in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial
to the people, although it is true that in the execution of such measures more humane and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always
had in view the ultimate object of the Government for the sake of the community, that is, putting an
end to the living together in a certain place of women dedicated to prostitution and changing their
domicile, with the problematical hope that they adopt another manner of living which is better and
more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire to
return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference to
reside in Davao, which manifestation must be made under oath. This resolution must be transmitted to
the mayor within the shortest time possible for its due compliance. The costs shall be charged de
officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according to
the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon
him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents were thus given ample time,
practically one month, to comply with the writ. As far as the record disclosed, the mayor of the
city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the Attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being brought before the court on
the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents,
for the purpose of complying with the order of the court, could have, (1) produced the bodies of the
persons according to the command of the writ; (2) shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought before this court; and (3) presented affidavits to
show that the parties in question or their lawyers waived their right to be present. According to the
same decision, the said respondents ". . . did not produce the bodies of the persons in whose behalf
the writ was granted; did not show impossibility of performance; and did not present writings, that
waived the right to be present by those interested. Instead, a few stereotyped affidavits purporting to
show that the women were contented with their life in Davao, some of which have since been
repudiated by the signers, were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be found in the municipality of
Davao, and that about this number either returned at their own expense or were produced at the
second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the Queen
vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that
every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10, 1918, requiring the respondents
to produce before the court, on January 13, 1919, the women who were not in Manila, unless they
could show that it was impossible to comply with the said order on the two grounds previously
mentioned. With respect to this second order, the same decision has the following to say:
 In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is
a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first step
for compliance with the mandate of the said order; he waited till the 21st of November, as the decision
says, before he sent a telegram to the provincial governor o f Davao and naturally this half-hearted
effort, as is so qualified in the decision, resulted in that none of the women appeared before this court
on December 2nd. Thus, the said order was not complied with, and in addition to this noncompliance
there was the circumstances that seven of the said women having returned to Manila at their own
expense before the said second day of December and being in the antechamber of the court room,
which fact was known to Chief of Police Hohmann, who was then present at the trial and to the
attorney for the respondents, were not produced before the court by the respondents nor did the latter
show any effort to present them, in spite of the fact that their attention was called to this particular by
the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically the
seven (7) women above-mentioned who had returned to the city at their own expense and the other
eight (8) women whom the respondents themselves brought to Manila, alleging moreover that their
agents and subordinates succeeded in bringing them from Davao with their consent; that in Davao
they found eighty-one (81) women who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits presented by the respondents to
this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but
notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-
six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and
transported to Davao against their will, only eight (8) have been brought to Manila and presented
before this court by the respondents in compliance with the said two orders. Fifty-nine (59) of them
have returned to Manila through other means not furnished by the respondents, twenty-six of whom
were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney
paid out of his own pocket the transportation of the said twenty-six women. Adding to these numbers
the other seven (7) women who returned to this city at their own expense before January 13 we have a
total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content with their life in Mindanao and
did not desire to return to Manila; and, on the other hand, that the respondents, especially the first
named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance
with the orders issued by this court, could bring before December 2nd, the date of the first hearing of
the case, as well as before January 13th, the date fixed for the compliance with the second order, if not
the seventy-four (74) women already indicated, at least a great number of them, or at least sixty (60)
of them, as is said in the majority decision, inasmuch as the said respondent could count upon the aid
of the Constabulary forces and the municipal police, and had transportation facilities for the purpose.
But the said respondent mayor brought only eight (8) of the women before this court on January 13th.
This fact can not, in my judgment, with due respect to the majority opinion, justify the conclusion that
the said respondent has substantially complied with the second order of this court, but on the other
hand demonstrates that he had not complied with the mandate of this court in its first and second
orders; that neither of the said orders has been complied with by the respondent Justo Lukban, Mayor
of the city of Manila, who is, according to the majority decision, principally responsible for the
contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second
order confirms the contempt committed by non-compliance with the first order and constitutes a new
contempt because of non-compliance with the second, because of the production of only eight (8) of
the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order
and transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same nor
has he made any effort to comply with the second order. In other words, he has disobeyed the said two
orders; has despised the authority of this court; has failed to give the respect due to justice; and lastly,
he has created and placed obstacles to the administration of justice in the said habeas corpus
proceeding, thus preventing, because of his notorious disobedience, the resolution of the said
proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same as
though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the power
to enforce decorum in the courts and obedience to their orders and just measures is so
essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing the
sovereign or his ministers, the law-making power, or the courts. In the American states the
power to punish for contempt, so far as the executive department and the ministers of state
are concerned, and in some degree so far as the legislative department is concerned, is
obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a necessary
incident to every court of justice, whether of record or not; and the authority for issuing
attachments in a proper case for contempts out of court, it has been declared, stands upon the
same immemorial usage as supports the whole fabric of the common law. . . . (Ruling Case
Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been caused
by noncompliance with the same orders on the part of the respondent Justo Lukban; the damages
which might have been suffered by some of the women illegally detained, in view of the fact that they
were not brought to Manila by the respondents to be presented before the court and of the further fact
that some of them were obliged to come to this city at their own expense while still others were
brought to Manila by the attorney for the petitioners, who paid out of his own pocket the transportation
of the said women; and the delay which was necessarily incurred in the resolution of the petition
interposed by the said petitioners and which was due to the fact that the said orders were not
opportunately and duly obeyed and complied with, are circumstances which should be taken into
account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt
committed by him, a penalty which, according to section 236 of the Code of Civil Procedure, should
consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be taken into consideration the
special circumstance that the contempt was committed by a public authority, the mayor of the city of
Manila, the first executive authority of the city, and consequently, the person obliged to be the first in
giving an example of obedience and respect for the laws and the valid and just orders of the duly
constituted authorities as well as for the orders emanating from the courts of justice, and in giving help
and aid to the said courts in order that justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this proceeding
should be transmitted to the Attorney-General in order that, after a study of the same and deduction
from the testimony which he may deem necessary, and the proper transmittal of the same to the fiscal
of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women was carried into effect by Mayor
Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will be one of
the means whereby the just hope expressed in the majority decision will be realized, that is, that in the
Philippine Islands there should exist a government of laws and not a government of men and that this
decision may serve to bulwark the fortifications of an orderly Government of laws and to protect
individual liberty from illegal encroachments.

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. L-63915 December 29, 1986

LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the
decrees themselves declared that they were to become effective immediately upon their approval. In
the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some
of these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published,
they shall have no binding force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1 Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of
general applicability and those which are not; that publication means complete publication; and that
the publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request
for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless
it is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was
not always imperative; that publication, when necessary, did not have to be made in the Official
Gazette; and that in any case the subject decision was concurred in only by three justices and
consequently not binding. This elicited a Reply 4 refuting these arguments. Came next the February
Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the
supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration of a government agency or for particular
persons did not have to be 'Published; that publication when necessary must be in full and in the
Official Gazette; and that, however, the decision under reconsideration was not binding because it was
not supported by eight members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after
such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present
Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed with altogether.
The reason. is that such omission would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern the legislature could validly provide that a law e
effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result and they would be so not because of a failure to comply with but simply because
they did not know of its existence, Significantly, this is not true only of penal laws as is commonly
supposed. One can think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at all.
It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this certainly applies to, among others, and
indeed especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect
the public although it unquestionably does not apply directly to all the people. The subject of such law
is a matter of public interest which any member of the body politic may question in the political forums
or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public
would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might be directly
applicable only to one individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules and regulations must a also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public place after a favored individual
or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary
Board must be published if they are meant not merely to interpret but to "fill in the details" of the
Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on
the case studies to be made in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. 7 The evident purpose
was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication
in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as
the people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the
need for due publication without indicating where it should be made. 11 It is therefore necessary for the
present membership of this Court to arrive at a clear consensus on this matter and to lay down a
binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation
could better perform the function of communicating, the laws to the people as such periodicals are
more easily available, have a wider readership, and come out regularly. The trouble, though, is that
this kind of publication is not the one required or authorized by existing law. As far as we know, no
amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such
a law, and we have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we
find it impractical. That is not our function. That function belongs to the legislature. Our task is merely
to interpret and apply the law as conceived and approved by the political departments of the
government in accordance with the prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official
Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication
or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect
to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by
the parties that a law could be rendered unenforceable by a mere refusal of the executive, for
whatever reason, to cause its publication as required. This is a matter, however, that we do not need
to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society,
with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with
their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid publication intended to make full
disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot
feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become
effective only after fifteen days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I
took a strong stand against the insidious manner by which the previous dispensation had promulgated
and made effective thousands of decrees, executive orders, letters of instructions, etc. Never has the
law-making power which traditionally belongs to the legislature been used and abused to satisfy the
whims and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those
days, it was not surprising to witness the sad spectacle of two presidential decrees bearing the same
number, although covering two different subject matters. In point is the case of two presidential
decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael
M. Keon the then President's nephew and the other imposing a tax on every motor vehicle equipped
with airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March 19,
1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the
same time, I wish to add a few statements to reflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35
of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of
publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I
took a strong stand against the insidious manner by which the previous dispensation had promulgated
and made effective thousands of decrees, executive orders, letters of instructions, etc. Never has the
law-making power which traditionally belongs to the legislature been used and abused to satisfy the
whims and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those
days, it was not surprising to witness the sad spectacle of two presidential decrees bearing the same
number, although covering two different subject matters. In point is the case of two presidential
decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael
M. Keon the then President's nephew and the other imposing a tax on every motor vehicle equipped
with airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March 19,
1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.
FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the
same time, I wish to add a few statements to reflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35
of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of
publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

REYNALDO V. UMALI,
Petitioner,

G. R. No. 104037

May 29, 1992

-versus-

HON. JESUS P. ESTANISLAO, SECRETARY OF FINANCE,

and HON. JOSE U. ONG, COMMISSIONER OF INTERNAL
REVENUE,
Respondents.

______________________________________________

RENE B. GOROSPE, LEIGHTON R. SIAZON, MANUEL M. SUNGA,

PAUL D. UNGOS, BIENVENIDO T. JAMORALIN, JR., JOSE D.chanrobles virtual law library
FLORES, JR., EVELYN G. VILLEGAS, DOMINGO T. LIGOT,
HENRY E. LARON, PASTOR M. DALMACION, JR.,
and JULIUS NORMAN C. CERRADA,
Petitioners,
 G. R. No. 104069

May 29, 1992

-versus-

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

DECISION

PADILLA, J.:

These consolidated cases are Petitions for Mandamus and Prohibition premised upon the following
undisputed facts:

Congress enacted Rep. Act 7167, entitled "AN ACT ADJUSTING THE BASIC PERSONAL AND ADDITIONAL
EXEMPTIONS ALLOWABLE TO INDIVIDUALS FOR INCOME TAX PURPOSES TO THE POVERTY THRESHOLD
LEVEL, AMENDING FOR THE PURPOSE SECTION 29, PARAGRAPH [L], ITEMS (1) AND (2) [A] OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES." It provides as
follows:

Sec. 1. The first paragraph of item [1], paragraph [1] of Section 29 of the National Internal
Revenue Code, as amended, is hereby further amended to read as follows:

[1] Personal exemptions allowable to individuals:

(1) Basic personal exemption as follows:
For single individual or married individual judicially decreed as legally
separated with no qualified dependents P9,000

For head of a family P12,000

For married individual P18,000

Provided, That husband and wife electing to compute their income tax separately shall be
entitled to a personal exemption of P9,000 each.

Sec. 2. The first paragraph of item [2] (A), paragraph (1) of Section 29 of the same Code, as
amended, is hereby further amended to read as follows:

(2) Additional exemption.

(a) Taxpayers with dependents. A married individual or a head of family shall

be allowed an additional exemption of Five Thousand Pesos (P5,000) for each
dependent: Provided, That the total number of dependents for which additional
exemptions may be claimed shall not exceed four dependents: Provided,
further, That an additional exemption of One Thousand Pesos [1,000] shall be
allowed for each child who otherwise qualified as dependent prior to January 1,
1980: Provided, finally, That the additional exemption for dependents shall be
claimed by only one of the spouses in case of married individuals electing to
compute their income tax liabilities separately.
Sec. 3. This act shall take effect upon its approval.
Approved. [1]
The said Act was signed and approved by the President on 19 December 1991 and published on 14
January 1992 in "Malaya" a newspaper of general circulation.

On 26 December 1991, respondents promulgated Revenue Regulations No. 1-92, the pertinent portions
of which read as follows:

Sec. 1. Scope.- Pursuant to Sections 245 and 72 of the National Internal Revenue Code in
relation to Republic Act No. 7167, these Regulations are hereby promulgated prescribing the
collection at source of income tax on compensation income paid on or after January 1, 1992
under the Revised Withholding Tax Tables [Annex "A"] which take into account the increase of
personal and additional exemptions.

xxx xxx xxx

Sec. 3. Section 8 of Revenue Regulations No. 6-82 is amended by Revenue Regulations No. 1-
86 is hereby further amended to read as follows:

Section 8. Right to claim the following exemptions. -Each employee shall be allowed to claim
the following amount of exemption with respect to compensation paid on or after January 1,
1992.

xxx xxx xxx

Sec. 5. Effectivity.- These regulations shall take effect on compensation income from January
1, 1992.

On 27 February 1992, the petitioner in G. R. No. 104037, a taxpayer and a resident of Gitnang Bayan
Bongabong, Oriental Mindoro, filed a Petition for Mandamus for himself and in behalf all individual
Filipino taxpayers, to compel the respondents to implement Rep. Act No. 7167 with respect to taxable
income of individual taxpayers earned or received on or after 1 January 1991 or as of taxable year
ending 31 December 1991.

On 28 February 1992, the petitioners in G. R. No. 104069 likewise filed a Petition for Mandamus and
Prohibition on their behalf as well as for those other individual taxpayers who might be similarly
situated, to compel the Commissioner of Internal Revenue to implement the mandate of Rep. Act 7167
adjusting the personal and additional exemptions allowable to individuals for income tax purposes in
regard to income earned or received in 1991, and to enjoin the respondents from implementing
Revenue Regulations No. 1-92.cralaw

In the Court's Resolution of 10 March 1992, these two [2] cases were consolidated. Respondents were
required to comment on the petitions, which they did within the prescribed period.cralaw

The principal issues to be resolved in these cases are: [1] whether or not Rep. Act 7167 took effect
upon its approval by the President on 19 December 1991, or on 30 January 1992, i.e., after fifteen [15]
days following its publication on 14 January 1992 in the "Malaya" a newspaper of general circulation;
and [2] assuming that Rep. Act 7167 took effect on 30 January 1992, whether or not the said law
nonetheless covers or applies to compensation income earned or received during calendar year
1991.cralaw

In resolving the first issue, it will be recalled that the Court in its resolution in Caltex [Phils.],, Inc. vs.
The Commissioner of Internal Revenue, G. R. No. 97282, 26 June 1991, which is on all fours with this
case as to the first issue, held:

The central issue presented in the instant petition is the effectivity of R. A. 6965 entitled "An
Act Revising The Form of Taxation on Petroleum Products from Ad Valorem to Specific,
 Amending For the Purpose Section 145 of the National Internal Revenue Code, As amended by
Republic Act Numbered Sixty Seven Hundred Sixty Seven."
Sec. 3 of R.A. 6965 contains the effectivity clause which provides. "This Act shall take effect
upon its approval."
R. A. 6965 was approved on September 19, 1990. It was published in the Philippine Journal, a
newspaper of general circulation in the Philippines, on September 20, 1990. Pursuant to the
Act, an implementing regulation was issued by the Commissioner of Internal Revenue,
Revenue Memorandum Circular 85-90, stating that R. A. 6965 took effect on October 5, 1990.
Petitioner took exception thereof and argued that the law took effect on September 20, 1990
instead.
Pertinent is Article 2 of the Civil Code [as amended by Executive Order No. 200] which
provides:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication either in the official Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided.
In the case of Tanada vs. Tuvera [L-63915, December 29, 1986, 146 SCRA 446, 452], We
construed Article 2 of the Civil Code and laid down the rule:
The clause "unless it is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be omitted. This clause does not
mean that the legislator may make the law effective immediately upon approval, or on any
other date without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that
the usual fifteen-day period shall be shortened or extended.
Inasmuch as R.A. 6965 has no specific date for its effectivity and neither can it become
effective upon its approval notwithstanding its express statement, following Article 2 of the
Civil Code and the doctrine enunciated in Tanada, supra, R.A. 6965 took effect fifteen days
after September 20, 1990, or specifically, on October 5, 1990.

Accordingly, the Court rules that Rep. Act 7167 took effect on 30 January 1992, which is after fifteen
[15] days following its publication on 14 January 1992 in the "Malaya."

Coming now to the second issue, the Court is of the considered view that Rep. Act 7167 should cover
or extend to compensation income earned or received during calendar year 1991. Sec. 29, par. [L],
Item No. 4 of the National Internal Revenue Code, as amended, provides:

Upon the recommendation of the Secretary of Finance, the President shall automatically adjust
not more often than once every three years, the personal and additional exemptions taking
into account, among others, the movement in consumer price indices, levels of minimum
wages, and bare subsistence levels.

As the personal and additional exemptions of individual taxpayers were last adjusted in 1986, the
President, upon the recommendation of the Secretary of Finance, could have adjusted the personal and
additional exemptions in 1989 by increasing the same even without any legislation providing for such
adjustment. But the President did not.

However, House Bill 28970, which was subsequently enacted by Congress as Rep. Act 7167, was
introduced in the House of Representatives in 1989 although its passage was delayed and it did not
become effective law until 30 January 1992. A perusal, however, of the sponsorship remarks of
Congressman Hernando B. Perez, Chairman of the House Committee on Ways and Means, on House Bill
28970, provides an indication of the intent of Congress in enacting Rep. Act 7167. The pertinent
legislative journal contains the following:

At the outset, Mr. Perez explained that the Bill provides for increased personal additional
exemptions to individuals in view of the higher standard of living.
The Bill, he stated, limits the amount of income of individuals subject to income tax to enable
them to spend for basic necessities and have more disposable income.
xxx xxx xxx
Mr. Perez added that inflation has raised the basic necessities and that it had been three years
since the last exemption adjustment in 1986.
xxx xxx xxx
 Subsequently, Mr. Perez stressed the necessity of passing the measure to mitigate the effects
of the current inflation and of the implementation of the salary standardization law. Stating
that it is imperative for the government to take measures to ease the burden of the individual
income tax filers, Mr. Perez then cited specific examples of how the measure can help assuage
the burden to the taxpayers.
He then reiterated that the increase in the prices of commodities has eroded the purchasing
power of the peso despite the recent salary increases and emphasized that the Bill will serve to
compensate the adverse effects of inflation on the taxpayers. [Journal of the House of
Representatives, May 23, 1990, pp. 32-33].

It will also be observed that Rep. Act 7167, speaks of the adjustments that it provides for, as
adjustments "to the poverty threshold level." Certainly, "the poverty threshold level" is the poverty
threshold level at the time Rep. Act 7167 was enacted by Congress, not poverty threshold levels in
futuro, at which time there may be need of further adjustments in personal exemptions. Moreover, the
Court can not lose sight of the fact that these personal and additional exemptions are fixed amounts to
which an individual taxpayer is entitled, as a means to cushion the devastating effects of high prices
and a depreciated purchasing power of the currency. In the end, it is the lower-income and the middle-
income groups of taxpayers [not the high-income taxpayers] who stand to benefit most from the
increase of personal and additional exemptions provided for by Rep. Act 7167. To that extent, the Act is
a social legislation intended to alleviate in part the present economic plight of the lower income
taxpayers. It is intended to remedy the inadequacy of the heretofore existing personal and additional
exemptions for individual taxpayers.

And then, Rep. Act 7167 says that the increased personal exemptions that it provides for shall be
available thenceforth, that is, after Rep. Act 7167 shall have become effective. In other words, these
exemptions are available upon the filing of personal income tax returns which is, under the National
Internal Revenue Code, done not later than the 15th day of April after the end of a calendar year. Thus,
under Rep. Act 7167, which became effective, as aforestated, on 30 January 1992, the increased
exemptions are literally available on or before 15 April 1992 [though not before 30 January 1992]. But
these increased exemptions can be available on 15 April 1992 only in respect of compensation income
earned or received during the calendar year 1991.cralaw

The personal exemptions as increased by Rep. Act 7167 cannot be regarded as available in respect of
compensation income received during the 1990 calendar year; the tax due in respect of said income
had already accrued, and been presumably paid, by 15 April 1991 and by 15 July 1991, at which time
Rep. Act 7167 had not been enacted. To make Rep. Act 7167 refer back to income received during
1990 would require language explicitly retroactive in purport and effect, language that would have to
authorize the payment of refunds of taxes paid on 15 April 1991 and 15 July 1991: such language is
simply not found in Rep. Act 7167.cralaw

The personal exemptions as increased by Rep. Act 7167 cannot be regarded as available only in
respect of compensation income received during 1992, as the implementing Revenue Regulations No.
1-92 purport to provide. Revenue Regulations No. 1-92 would, in effect, postpone the availability of the
increased exemptions to 1 January-15 April 1993, and thus, literally defer the effectivity of Rep. Act
7167 to 1 January 1993. Thus, the implementing regulations collide frontally with Section 3 of Rep. Act
7167 which states that the statute "shall take effect upon its approval." The objective of the Secretary
of Finance and the Commissioner of Internal Revenue in postponing through Revenue Regulations No.
1-92 the legal effectivity of Rep. Act 7167 is, of course, entirely understandable, To defer to 1993 the
reduction of governmental tax revenues which irresistibly follows from the application of Rep. Act
7167. But the law-making authority has spoken and the Court cannot refuse to apply the lawmaker's
words. Whether or not the government can afford the drop in tax revenues resulting from such
increased exemptions was for Congress [not this Court] to decide.cralaw

WHEREFORE, Sections 1, 3 and 5 of Revenue Regulations No. 1-92 which provide that the regulations
shall take effect on compensation income earned or received from 1 January 1992 are hereby set
aside. They should take effect on compensation income earned or received from 1 January 1991.cralaw

Since this decision is promulgated after 15 April 1992, the individual taxpayers entitled to the
increased exemptions on compensation income earned during calendar year 1991 who may have filed
their income tax returns on or before 15 April 1992 [later extended to 24 April 1992] without the
benefit of such increased exemptions, are entitled to the corresponding tax refunds and/or credits and
respondents are ordered to effect such refunds and/or credits. No costs.cralaw

SO ORDERED.

Narvasa, C.J. , Gutierrez, Jr., Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero,
Nocon and Bellosillo, JJ ., concur.

Separate Opinions
PARAS, J.,

Concurring and Dissenting:

I wish to concur with the majority opinion penned in this case by Justice Teodoro Padilla, because I
believe that the tax exemptions referred to in the law should be effective already with respect to the
income earned for the year 1991. After all, even if We say that the law became effective only in 1992,
still this can refer only to the income obtained in 1991 since after all, what should be filed in 1992 is
the income tax return of the income earned in 1991.

However, I wish to dissent from the part of the decision which affirms the obiter dictum enunciated in
the case of Tanada vs. Tuvera [146 SCRA 446, 452] to the effect that a law becomes effective not on
the date expressly provided for in said law, but on the date after fifteen [15] days from the publication
in the Official Gazette or any national newspaper of general circulation. I say obiter dictum because the
doctrine mentioned is not the actual issue in the case of Tanada vs. Tuvera [supra]. In that case,
several Presidential Decrees of President Marcos were issued, but they were never published in the
Official Gazette or in any national newspaper of general circulation. The real issue, therefore, in said
case was whether or not said Presidential Decrees ever became effective. The Court ruled with respect
to this issue [and not any other issue, since there was no other issue whatsoever], that said
presidential decrees never became effective. In other words, the ratio decidendi in that case was the
ruling that without publication, there can be no effectivity. Thus, the statement as to which should be
applied "after fifteen [15] days from publication" or "unless otherwise provided by law" [Art. 2, Civil
Code] was mere obiter. The subsequent ruling in the Resolution dated June 26, 1991 in Caltex, Inc. vs.
Comm. of Internal Revenue cannot likewise apply because it was based on the aforesaid obiter in
Tanada v. Tuvera [supra]. In the instant tax exemptions case, the law says effective upon approval,
therefore, since this law was approved by the President in December, 1991, its subsequent publication
in the January 1992 issue of the Civil Code is actually immaterial.cralaw

Art. 2 of the Civil Code which states:

Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such
publication.

It is very clear and needs no interpretation or construction.

CRUZ. J.,

Concurring:

As the ponente of Taada v. Tuvera, 146 SCRA 446, I should like to make these brief observations on
my brother Paras' separate opinion. He says that "the ratio decidendi in that case was the ruling that
without publication, there can be no effectivity." Yet, while accepting this, he contends that pursuant to
its terms, R. A. 7167 became effective upon approval [i.e., even without publication]. He adds that
"since this law was approved by the President in December 1991, its subsequent publication in the
January 1992 issue of the Civil Code is actually immaterial." I confess I am profoundly bemused.

Endnote

[1] Before the enactment of Rep. Act 7167, Executive Order No. 37, approved by the President on 31
July 1986, provided for the following personal and additional exemptions for individual
taxpayers:chanroblesvirtuallawlibrary

(1) Personal exemptions allowable to individuals. (1) Basic personal exemption. For the
purpose of determining the tax provided in Section 21(a) of this Title, there shall be allowed a
basic personal exemption as follows:chanroblesvirtuallawlibrary
For single individual or married individual
judicially decreed as legally separated with no qualified dependents P6,000
For head of a family P7,500
For married individual P12,000

Provided, That husband and wife electing to compute their income tax separately shall be entitled to a
personal exemption of P6,000 each.

For purposes of this paragraph, the term "Head of Family" means an unmarried or legally separated
man or woman with one or both parents, or with one or more brothers or sisters, or with one or more
legitimate, recognized natural or legally adopted children living with and dependent upon him for their
chief support, where such brothers or sisters or children are not more than twenty-one (21) years of
age, unmarried and not gainfully employed or where such children, brothers or sisters, regardless of
age are incapable of self-support because of mental or physical defect.

(2) Additional exemption

(A) Taxpayers with dependents.- A married individual or a head of family shall be allowed an additional
exemption of Three thousand pesos (P3,000) for each dependent: Provided, That the total number of
dependents for which additional exemptions may be claimed shall not exceed four dependents:
Provided, further, That an additional exemption of One thousand pesos (P1,000) shall be allowed for
each child who otherwise qualified as dependent prior to January 1, 1980; and Provided, finally, That
the additional exemption for dependents shall be claimed by only one of the spouses in the case of
married individuals electing to compute their income tax liabilities separately.

In case of legally separated spouses, additional exemptions may be claimed only by the spouse who
was awarded custody of the child or children: Provided, That the total amount of additional exemptions
that may be claimed by both shall not exceed the maximum additional exemptions herein
allowed:chanroblesvirtuallawlibrary

For purposes of this paragraph, a dependent means a legitimate, recognized natural or legally adopted
child chiefly dependent upon and living with the taxpayer if such dependent is not more than twenty-
one (21) years of age, unmarried and not gainfully employed or if such dependent, regardless of age,
is incapable of self-support because of mental or physical defect.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 165575 February 2, 2011

ADELIA C. MENDOZA and as Attorney-in-Fact of ALICE MALLETA, Petitioners,
vs.
UNITED COCONUT PLANTERS BANK, INC., Respondent.

DECISION

PERALTA, J.:

This is a petition for review on certiorari1 of the Court of Appeals Resolution dated July 2, 2004, in CA-
G.R. CV No. 79796, and its Resolution dated September 9, 2004, denying petitioners motion for
reconsideration. The Court of Appeals dismissed the Appellants Brief filed by petitioners for failure to
comply with the requirements under Section 13, Rule 44 of the 1997 Revised Rules of Civil Procedure.

The facts are as follows:

On November 5, 2001, petitioner Adelia Mendoza, attorney-in-fact of petitioner Alice Malleta, filed a
Complaint2 for annulment of titles, foreclosure proceedings and certificate of sale with the Regional
Trial Court (RTC) of Lipa City, Fourth Judicial Region.

In their Complaint, herein petitioners stated that on October 6, 1995, they entered into a Real Estate
Mortgage Contract with respondent United Coconut Planters Bank (UCPB) in the amount of
P4,925,000.00.3 On August 27, 1998, the properties were sold at public auction in the total amount of
P31,300,00.00 to UCPB. On September 17, 2001, an Affidavit of Consolidation was executed by UCPB.

Petitioners contended that the foreclosure proceedings violated due process and the legal
requirements under Act No. 3135, as amended, on the following grounds:

a) There was no valid and legal notice to petitioner Adelia Mendoza of the foreclosure
proceedings;

b) There was no valid and legal notice of the auction sale;

c) There was no valid and legal notice of the consolidation of ownership;

d) There was no valid publication and notice as required by law;

e) There was a violation of Republic Act No. 3765, "An Act to Require the Disclosure of Finance
Charges in Connection with Extensions of Credit," specifically Section 6 of the law;

f) There was no clear and accurate financial statement showing the application of payments of
the plaintiffs (petitioners herein); and

g) There was no valid letter of demand showing the clear finance charges.

Petitioners prayed that the foreclosure proceedings and Certificate of Sale be annulled, and that if ever
any new title is issued in lieu of their Transfer Certificates of Titles, 4 the same should be cancelled and
annulled; that respondent be ordered to pay petitioners attorneys fees of P50,000.00 and litigation
expenses of P20,000.00.

In its Answer with Compulsory Counterclaim,5 respondent UCPB denied that petitioners entered into a
Real Estate Mortgage Contract with it in the amount of P4,925,000.00, the truth being that petitioner
Adelia Mendoza executed several promissory notes in the total principal amount of P27,500,000.00,
and to secure these obligations she executed, together with petitioner Alice Malleta, several real estate
mortgages over several parcels of land in favor of UCPB.
Respondent denied that the foreclosure proceedings were legally defective, as the said proceedings
were done in accordance with the provisions of Act No. 3135, as amended. It countered that the law
does not require personal notice to the mortgagor of the foreclosure proceedings and the auction sale,
as the publication of the notice of sale in a newspaper of general circulation constitutes constructive
notice to the whole world. Moreover, there is no legal requirement of personal notice to the mortgagor
of the consolidation of ownership, as the registration of the certificate of sale with the Register of
Deeds constitutes notice to the whole world that the mortgagor or any interested party has one year
from the date of such registration to redeem the foreclosed properties. Respondent claimed that it
complied with the posting requirements, and that it had also complied with the provisions of Republic
Act No. 3765 and had regularly furnished petitioners with statements of account pursuant to standard
banking practice.

Respondent contended that petitioners knew that the foreclosure was forthcoming due to their default
in the payment of their obligations. Petitioners had been sent several verbal and written demands to
pay their obligations and had been warned that failure to settle their obligations would result in the
foreclosure of their properties. Further, petitioners had one year from the date of registration of the
certificate of sale to redeem their property, but they failed to do so.

Respondent denied that there was "non-disclosure of finance charges without lawful and legal
demand," since it had regularly sent petitioners statements of account and had regularly given verbal
and written notices to pay their obligations. It also denied the allegations of lack of reconciliation and
verification of accounts. In this regard, respondent stated that petitioners could have easily verified
their account with the account officers of UCPB, but they failed to do so.

As special and affirmative defenses, respondent stated that on August 9, 1994, petitioner Mendoza
applied for and was granted a credit line in the amount of P25 million, which is supported by a Loan
Agreement.6 On October 9, 1995, the credit line was increased by P2.5 million, as evidenced by a Loan
Agreement.7 Petitioner Mendoza availed of the said credit line in the aggregate principal amount of
Twenty-Seven Million Five Hundred Thousand Pesos (P27.5 million) and executed promissory notes8
therefor. Among other conditions, the promissory notes carried acceleration clauses, making these
notes immediately due and payable even before maturity in case an event of default occurred,
including, but not limited to, payment of principal and interest amortizations.

Moreover, respondent stated that on August 10, 1995, as partial security for the promissory notes,
petitioner Malleta, through her attorney-in-fact, petitioner Adelia Mendoza, executed a real estate
mortgage in favor of UCPB over several parcels of land registered under the name of Alice B. Malleta
with the Register of Deeds of Lipa City. Later, pursuant to petitioner Mendozas commitment with
UCPB, the titles of the mortgaged properties were transferred under the name of Adelia B. Mendoza
upon release of the loan proceeds and the mortgage annotation was carried over to the new titles.

According to respondent, on October 6, 1995, petitioner Mendoza executed a real estate mortgage
over 12 parcels of land,9 all registered in her name, as additional security for the said promissory
notes.

Respondent stated that petitioner Mendoza failed to discharge her obligations under the promissory
notes, despite written and verbal demands made by UCPB upon her, the latest of which was the
demand letter dated January 29, 1998.10 Hence, it had no other recourse but to initiate foreclosure
proceedings on the aforementioned securities.

Respondent averred that on May 6, 1998, it filed a Petition 11 for Extrajudicial Foreclosure of the
mortgaged properties before the Ex Officio Sheriff of Lipa City.

On July 21, 1998, the Sheriff prepared a Notice of Sale12 and set the date of the public sale on August
27, 1998.13 On July 28, 1998, the Sheriff posted the Notice of Sale in three public places and the Notice
was, likewise, published in Tambuling Batangas, a newspaper of general circulation, on July 22 and 29,
1998, and on August 5, 1998. The certificate of posting and publishers affidavit of publication were
attached as Annexes "12,"14 and "13,"15 respectively.
The public sale was conducted on August 28, 1998. The mortgaged properties were sold in the amount
of P31,300,000.00 to UCPB as the highest and winning bidder. A Certificate of Sale 16 was issued in
favor of UCPB, which was duly registered in July 2000 at the back of the certificates of title of the
mortgaged properties with the Register of Deeds of Lipa City.

Petitioners failed to redeem the foreclosed properties within the one-year redemption period that
expired on July 21, 2001. Consequently, UCPB consolidated its ownership over the said properties and
new certificates of title were issued under its name.

Respondent stated that on August 27, 1998, the date of the auction sale, petitioners outstanding
obligation was P58,692,538.63, as evidenced by a Statement of Account. 17

According to respondent, the proceeds of the foreclosure sale amounted to P31,300,000.00, leaving a
deficiency of P27,392,538.63, an amount which it is entitled to payment from petitioner Mendoza,
together with penalties and interest due thereon.

Respondent prayed that, after hearing, judgment be rendered (1) dismissing the Complaint for lack of
merit; (2) on the counterclaim, ordering petitioners to pay the deficiency claim of P27,392,538.63,
including the penalties and interests due thereon from August 27, 1998, and P1 million as attorneys
fees and P200,000.00 as litigation expenses.

On March 25, 2003, respondent filed a Motion to Dismiss 18 for failure to prosecute. Respondent
contended that petitioners, through counsel, received a copy of its Answer on August 26, 2002, as
shown by the photocopy of the registry return receipt. It stated that under Section 1, Rule 18 of the
1997 Rules of Civil Procedure, petitioners have the positive duty to promptly set the case for pre-trial
after the last pleading had been filed. It stated that the Answer was the last pleading, since petitioners
failed to file a Reply thereon within the reglementary period.

Respondent stated that since August 26, 2002, or almost a period of six months, petitioners had not
taken steps to set the case for pre-trial as mandated by the rules. Respondent submitted that the case
should be dismissed for failure to prosecute for an unreasonable period of time as provided by Section
3, Rule 17 of the 1997 Rules of Civil Procedure. It asserted that failure to set the case for pre-trial for
almost six (6) months is an unreasonable period of time, as a period of three (3) months had been
found to constitute an unreasonable period of time in Montejo v. Urotia. 19

Petitioners, through counsel Atty. Jose P. Malabanan, filed an Opposition to the Motion to Dismiss and
Motion to Set the Case for Pre-trial,20 and stated therein that their counsel on record is Atty. Monchito
C. Rosales, who died on December 22, 2002; that Atty. Jose P. Malabanan forgot the case because of
the death of Atty. Rosales (who is his law partner), and that he was setting the case for pre-trial.
Petitioners prayed that the Opposition and motion to set the case for pre-trial be granted.

On April 15, 2003, the RTC of Lipa City, Branch 12 issued an Order 21 dismissing the case. The court
found the Motion to Dismiss (for failure to prosecute) to be in accordance with the rules. It stated that
the records of the case showed that since August 20, 2002, the issues in this case had already been
joined, and that Atty. Monchito C. Rosales was still alive then, yet he did not take any step to have the
case set for pre-trial. It found the claim of Atty. Jose P. Malabanan, that he forgot about the case
because of the death of Atty. Rosales, as unpardonable, flimsy and an invalid excuse.

The Motion for Reconsideration of the Order dated April 15, 2003 was denied for lack of merit by the
trial court in an Order dated May 26, 2003.22

Thereafter, petitioners appealed the trial courts Orders to the Court of Appeals, and filed an
Appellants Brief on April 5, 2004.

On May 20, 2004, respondent filed a Motion to Dismiss Appeal on the ground that the Appellants Brief
failed to comply with the requirements under Section 13, Rule 44 of the 1997 Rules of Civil Procedure.
Respondent contended that the Appellants Brief contained only the following topics: (1) Prefaratory
Statement; (2) Statement of Facts and Antecedent Proceedings; (3) Parties; (4) Statement of the Case;
(5) Issues; (6) Arguments/Discussion; and (7) Prayer. The Appellants Brief did not have the following
items: (1) A subject index of the matter in the brief with a digest of the arguments and page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with references
to the pages where they are cited; (2) an assignment of errors; (3) on the authorities cited, references
to the page of the report at which the case begins and page of the report on which the citation is
found; (4) page references to the record in the Statement of Facts and Statement of the Case.

Respondent contended that the absence of a specific assignment of errors or of page references to the
record in the Appellants Brief is a ground for dismissal of the appeal under Section 1 (f), Rule 50 of the
1997 Rules of Civil Procedure.23

On June 4, 2004, petitioners filed an Opposition to Motion to Dismiss Appeal. 24 They contended that the
assignment of errors were only designated as "Issues" in their Appellants Brief; and although the
designation of the "Assignment of Error" may vary, the substance thereof remains. Moreover,
petitioners stated that the textbooks and statutes were cited immediately after the portion where they
are quoted, which is more convenient and facilitates ready reference of the legal and jurisprudential
basis of the arguments. They claimed that the absence of a subject index does not substantially
deviate from the requirements of the Rules of Court, because one can easily go over the Appellants
Brief and can designate the parts with nominal prudence. They pointed out that Section 6 of the Rules
of Court provides for a liberal construction of the Rules in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding.

On July 2, 2004, the Court of Appeals issued a Resolution dismissing the appeal. The dispositive portion
of the Resolution reads:

WHEREFORE, in view of the foregoing, the defendant-appellee UCPBs Motion to Dismiss Appeal is
hereby GRANTED. This appeal is ordered DISMISSED for failure to comply with Section 13, Rule 44 of
the 1997 Revised Rules of Civil Procedure.25

The Court of Appeals held that the right to appeal is a statutory right and a party who seeks to avail of
the right must faithfully comply with the rules. It found that the Appellants Brief failed to comply with
Section 13, Rule 44 of the 1997 Revised Rules of Civil Procedure, thus:

In this case, the plaintiff-appellants brief failed to provide an index, like a table of contents, to
facilitate the review of appeals by providing ready references to the records and documents referred to
therein. This Court has to thumb through the brief page after page to locate the partys arguments, or
a particular citation, or whatever else needs to be found and considered. In so doing, the plaintiff-
appellant unreasonably abdicated her duty to assist this Court in the appreciation and evaluation of
the issues on appeal.

Further, the statement of facts is not supported by page references to the record. Instead of
reasonably complying with the requirements of the rules, plaintiff-appellant annexed the plain
photocopy of the documents being referred to in the statements of facts. Thus, if only to verify the
veracity of the allegations in the brief and the existence of the attached documents, this Court has to
pore over the entire records of this case.

There is no merit in the plaintiff-appellants argument that the "Assignment of Error" was merely
designated as "Issues" but the substance thereof remains and should not cause the dismissal of the
appeal. The Supreme Court categorically stated in De Liano vs. Court of Appeals that the statement of
issues is not to be confused with the assignment of errors because they are not one and the same, for
otherwise, the rules would not have required a separate statement of each. 26

Petitioners motion for reconsideration was denied for lack of merit by the Court of Appeals in its
Resolution dated September 9, 2004. The appellate court held that petitioners merely reiterated the
arguments raised in their Opposition to Motion to Dismiss Appeal, which arguments were already
passed upon by the court. Moreover, the Court of Appeals noted that despite ample opportunity,
petitioners never attempted to remedy the deficiency in their Appellants Brief by filing another brief in
conformity with the rules, but obstinately maintained that their Appellants Brief substantially complied
with the rules.

Hence, petitioners filed this petition raising the following issues:I

THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE APPEAL NOTWITHSTANDING THE
PETITIONERS SUBSTANTIAL COMPLIANCE [WITH] SECTION 13, RULE 44 [OF] THE 1997 RULES OF CIVIL
PROCEDURE.II

THE HONORABLE REGIONAL TRIAL COURT OF LIPA CITY, BRANCH 12 ERRED IN ORDERING THE
DISMISSAL OF PETITIONERS COMPLAINT ON THE GROUND OF FAILURE TO PROSECUTE THEIR CAUSE
OF ACTION FOR AN UNREASONABLE PERIOD OF TIME.

III

THE HONORABLE REGIONAL TRIAL COURT OF LIPA CITY, BRANCH 12 ERRED IN NOT HOLDING THAT
RESPONDENTS NON-COMPLIANCE WITH THE POSTING REQUIREMENT UNDER SECTION 3, ACT NO.
3135 IS FATAL TO THE VALIDITY OF THE FORECLOSURE PROCEEDINGS.

IV

THE EXTRAJUDICIAL FORECLOSURE PROCEEDINGS AND AUCTION SALE OF THE SUBJECT REALTIES
VIOLATE THE PROVISIONS OF ARTICLE XVII OF THE CONTRACT OF MORTGAGE ENTERED INTO BY AND
BETWEEN THE PETITIONERS AND RESPONDENT ON 06 OCTOBER 1995.

RESPONDENT UNITED COCONUT PLANTERS BANK VIOLATED SECTION 4 OF REPUBLIC ACT NO. 3765 ON
THE REQUIREMENT OF FULL DISCLOSURE OF FINANCE CHARGES IN CONNECTION WITH THE
EXTENSIONS OF CREDIT.

VI

PETITIONERS ARE ENTITLED TO REASONABLE ATTORNEYS FEES. 27

The main issue is whether or not the Court of Appeals erred in dismissing petitioners appeal on the
ground that their Appellants Brief failed to comply with Section 13, Rule 44 of the 1997 Rules of Civil
Procedure as the said brief did not have a subject index, an assignment of errors, and page references
to the record in the Statement of Facts.

Petitioners argue that the absence of a subject index in their Appellants Brief is not a material
deviation from the requirements of Section 13, Rule 44 of the 1997 Revised Rules of Civil Procedure,
and that each portion of the 12-page brief was boldly designated to separate each portion.

Moreover, petitioners contend that while the "assignment of errors" was not designated as such in
their Appellants Brief, the assignment of errors were clearly embodied in the "Issues" thereof, which
substantially complies with the rules.

The petition is without merit.

The right to appeal is neither a natural right nor a part of due process; it is merely a statutory privilege,
and may be exercised only in the manner and in accordance with the provisions of law. 28 An appeal
being a purely statutory right, an appealing party must strictly comply with the requisites laid down in
the Rules of Court.29
In regard to ordinary appealed cases to the Court of Appeals, such as this case, Section 13, Rule 44 of
the 1997 Rules of Civil Procedure provides for the contents of an Appellants Brief, thus:

Sec. 13. Contents of appellants brief.The appellants brief shall contain, in the order herein
indicated, the following:

(a) A subject index of the matter in the brief with a digest of the arguments and page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;

(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly
and concisely stated without repetition and numbered consecutively;

(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of
the action, a summary of the proceedings, the appealed rulings and orders of the court, the
nature of the judgment and any other matters necessary to an understanding of the nature of
the controversy, with page references to the record;

(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form
of the facts admitted by both parties and of those in controversy, together with the substance
of the proof relating thereto in sufficient detail to make it clearly intelligible, with page
references to the record;

(e) A clear and concise statement of the issues of fact or law to be submitted to the court for
its judgment;

(f) Under the heading "Argument," the appellants arguments on each assignment of error with
page references to the record. The authorities relied upon shall be cited by the page of the
report at which the case begins and the page of the report on which the citation is found;

(g) Under the heading "Relief," a specification of the order or judgment which the appellant
seeks; and

(h) In cases not brought up by record on appeal, the appellants brief shall contain, as an
appendix, a copy of the judgment or final order appealed from.

In this case, the Appellants Brief of petitioners did not have a subject index. The importance of a
subject index should not be underestimated. De Liano v. Court of Appeals 30 declared that the subject
index functions like a table of contents, facilitating the review of appeals by providing ready reference.
It held that:

[t]he first requirement of an appellants brief is a subject index. The index is intended to facilitate the
review of appeals by providing ready reference, functioning much like a table of contents. Unlike in
other jurisdictions, there is no limit on the length of appeal briefs or appeal memoranda filed before
appellate courts. The danger of this is the very real possibility that the reviewing tribunal will be
swamped with voluminous documents. This occurs even though the rules consistently urge the parties
to be "brief" or "concise" in the drafting of pleadings, briefs, and other papers to be filed in court. The
subject index makes readily available at ones fingertips the subject of the contents of the brief so that
the need to thumb through the brief page after page to locate a partys arguments, or a particular
citation, or whatever else needs to be found and considered, is obviated. 31

Moreover, the Appellants Brief had no assignment of errors, but petitioners insist that it is embodied in
the "Issues" of the brief. The requirement under Section 13, Rule 44 of the 1997 Rules of Civil
Procedure for an "assignment of errors" in paragraph (b) thereof is different from a "statement of the
issues of fact or law" in paragraph (e) thereof. The statement of issues is not to be confused with the
assignment of errors, since they are not one and the same; otherwise, the rules would not require a
separate statement for each.32 An assignment of errors is an enumeration by the appellant of the
errors alleged to have been committed by the trial court for which he/she seeks to obtain a reversal of
the judgment, while the statement of issues puts forth the questions of fact or law to be resolved by
the appellate court.33

Further, the Court of Appeals found that the Statement of Facts was not supported by page references
to the record. De Liano v. Court of Appeals held:

x x x The facts constitute the backbone of a legal argument; they are determinative of the law and
jurisprudence applicable to the case, and consequently, will govern the appropriate relief. Appellants
should remember that the Court of Appeals is empowered to review both questions of law and of facts.
Otherwise, where only a pure question of law is involved, appeal would pertain to this Court. An
appellant, therefore, should take care to state the facts accurately though it is permissible to present
them in a manner favorable to one party. x x x Facts which are admitted require no further proof,
whereas facts in dispute must be backed by evidence. Relative thereto, the rule specifically requires
that ones statement of facts should be supported by page references to the record. Indeed,
disobedience therewith has been punished by dismissal of the appeal. Page references to the record
are not an empty requirement. If a statement of fact is unaccompanied by a page reference to the
record, it may be presumed to be without support in the record and may be stricken or disregarded
altogether.34

The assignment of errors and page references to the record in the statement of facts are important in
an Appellants Brief as the absence thereof is a basis for the dismissal of an appeal under Section 1 (f),
Rule 50, of the 1997 Rules of Civil Procedure, thus:

SECTION 1. Grounds for dismissal of appeal. -- An appeal may be dismissed by the Court of Appeals, on
its own motion or on that of the appellee, on the following grounds:

xxxx

(f ) Absence of specific assignment of errors in the appellants brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44.

Rules 44 and 50 of the 1997 Rules of Civil Procedure are designed for the proper and prompt
disposition of cases before the Court of Appeals. 35 Rules of procedure exist for a noble purpose, and to
disregard such rules in the guise of liberal construction would be to defeat such purpose. 36 The Court of
Appeals noted in its Resolution denying petitioners motion for reconsideration that despite ample
opportunity, petitioners never attempted to file an amended appellants brief correcting the
deficiencies of their brief, but obstinately clung to their argument that their Appellants Brief
substantially complied with the rules. Such obstinacy is incongruous with their plea for liberality in
construing the rules on appeal.37

De Liano v. Court of Appeals held:

Some may argue that adherence to these formal requirements serves but a meaningless purpose, that
these may be ignored with little risk in the smug certainty that liberality in the application of
procedural rules can always be relied upon to remedy the infirmities. This misses the point. We are not
martinets; in appropriate instances, we are prepared to listen to reason, and to give relief as the
circumstances may warrant. However, when the error relates to something so elementary as to be
inexcusable, our discretion becomes nothing more than an exercise in frustration. It comes as an
unpleasant shock to us that the contents of an appellants brief should still be raised as an issue now.
There is nothing arcane or novel about the provisions of Section 13, Rule 44. The rule governing the
contents of appellants briefs has existed since the old Rules of Court, which took effect on July 1,
1940, as well as the Revised Rules of Court, which took effect on January 1, 1964, until they were
superseded by the present 1997 Rules of Civil Procedure. The provisions were substantially preserved,
with few revisions.381avvphi1

In fine, the Court upholds the Resolutions of the Court of Appeals dismissing the appeal of petitioners
on the ground that their Appellants Brief does not comply with the requirements provided in Section
13, Rule 44 of the 1997 Rules of Civil Procedure, as the dismissal is supported by Section 1 (f), Rule 50
of the 1997 Rules of Civil Procedure and jurisprudence. 39 With the dismissal of the appeal, the other
issues raised by petitioners need not be discussed by the Court.

WHEREFORE, the petition is DENIED. The Court of Appeals Resolutions dated July 2, 2004 and
September 9, 2004, in CA-G.R. CV No. 79796, are hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Bar Matter No. 553 June 17, 1993

MAURICIO C. ULEP, petitioner,

vs.
THE LEGAL CLINIC, INC., respondent.

R E SO L U T I O N

REGALADO, J.:

Petitioner prays this Court "to order the respondent to cease and desist from issuing advertisements
similar to or of the same tenor as that of annexes "A" and "B" (of said petition) and to perpetually
prohibit persons or entities from making advertisements pertaining to the exercise of the law
profession other than those allowed by law."

The advertisements complained of by herein petitioner are as follows:

Annex A

SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.

THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm
7-Flr. Victoria Bldg., UN Ave., Mla.

Annex B

GUAM DIVORCE.

DON PARKINSON
 an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic
beginning Monday to Friday during office hours.

Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-

quota Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina
Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children.
Call Marivic.

THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1
Tel. 521-7232; 521-7251; 522-2041; 521-0767

It is the submission of petitioner that the advertisements above reproduced are champterous,
unethical, demeaning of the law profession, and destructive of the confidence of the community in the
integrity of the members of the bar and that, as a member of the legal profession, he is ashamed and
offended by the said advertisements, hence the reliefs sought in his petition as hereinbefore quoted.

In its answer to the petition, respondent admits the fact of publication of said advertisement at its
instance, but claims that it is not engaged in the practice of law but in the rendering of "legal support
services" through paralegals with the use of modern computers and electronic machines. Respondent
further argues that assuming that the services advertised are legal services, the act of advertising
these services should be allowed supposedly
in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2 reportedly decided
by the United States Supreme Court on June 7, 1977.

Considering the critical implications on the legal profession of the issues raised herein, we required the
(1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3) Philippine Lawyers'
Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the
Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to submit their respective
position papers on the controversy and, thereafter, their memoranda. 3 The said bar associations
readily responded and extended their valuable services and cooperation of which this Court takes note
with appreciation and gratitude.

The main issues posed for resolution before the Court are whether or not the services offered by
respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either case,
whether the same can properly be the subject of the advertisements herein complained of.

Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and
enlightening to present hereunder excerpts from the respective position papers adopted by the
aforementioned bar associations and the memoranda submitted by them on the issues involved in this
bar matter.

1. Integrated Bar of the Philippines:

xxx xxx xxx

Notwithstanding the subtle manner by which respondent endeavored to distinguish the

two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would
readily dictate that the same are essentially without substantial distinction. For who
could deny that document search, evidence gathering, assistance to layman in need of
basic institutional services from government or non-government agencies like birth,
marriage, property, or business registration, obtaining documents like clearance,
passports, local or foreign visas, constitutes practice of law?

xxx xxx xxx

The Integrated Bar of the Philippines (IBP) does not wish to make issue with
respondent's foreign citations. Suffice it to state that the IBP has made its position
manifest, to wit, that it strongly opposes the view espoused by respondent (to the
effect that today it is alright to advertise one's legal services).

The IBP accordingly declares in no uncertain terms its opposition to respondent's act of
establishing a "legal clinic" and of concomitantly advertising the same through
newspaper publications.

The IBP would therefore invoke the administrative supervision of this Honorable Court
to perpetually restrain respondent from undertaking highly unethical activities in the
field of law practice as aforedescribed. 4

xxx xxx xxx

A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent
corporation is being operated by lawyers and that it renders legal services.

While the respondent repeatedly denies that it offers legal services to the public, the
advertisements in question give the impression that respondent is offering legal
services. The Petition in fact simply assumes this to be so, as earlier mentioned,
apparently because this (is) the effect that the advertisements have on the reading
public.

The impression created by the advertisements in question can be traced, first of all, to
the very name being used by respondent "The Legal Clinic, Inc." Such a name, it is
respectfully submitted connotes the rendering of legal services for legal problems, just
like a medical clinic connotes medical services for medical problems. More importantly,
the term "Legal Clinic" connotes lawyers, as the term medical clinic connotes doctors.

Furthermore, the respondent's name, as published in the advertisements subject of the

present case, appears with (the) scale(s) of justice, which all the more reinforces the
impression that it is being operated by members of the bar and that it offers legal
services. In addition, the advertisements in question appear with a picture and name of
a person being represented as a lawyer from Guam, and this practically removes
whatever doubt may still remain as to the nature of the service or services being
offered.

It thus becomes irrelevant whether respondent is merely offering "legal support

services" as claimed by it, or whether it offers legal services as any lawyer actively
engaged in law practice does. And it becomes unnecessary to make a distinction
between "legal services" and "legal support services," as the respondent would have it.
The advertisements in question leave no room for doubt in the minds of the reading
public that legal services are being offered by lawyers, whether true or not.

B. The advertisements in question are meant to induce the performance of acts

contrary to law, morals, public order and public policy.

It may be conceded that, as the respondent claims, the advertisements in question are
only meant to inform the general public of the services being offered by it. Said
advertisements, however, emphasize to Guam divorce, and any law student ought to
know that under the Family Code, there is only one instance when a foreign divorce is
recognized, and that is:

Article 26. . . .

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the
 alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine Law.

It must not be forgotten, too, that the Family Code (defines) a marriage as follows:

Article 1. Marriage is special contract of permanent union between a

man and woman entered into accordance with law for the
establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relation during
the marriage within the limits provided by this Code.

By simply reading the questioned advertisements, it is obvious that the message being
conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in
accordance with our law, by simply going to Guam for a divorce. This is not only
misleading, but encourages, or serves to induce, violation of Philippine law. At the very
least, this can be considered "the dark side" of legal practice, where certain defects in
Philippine laws are exploited for the sake of profit. At worst, this is outright
malpractice.

Rule 1.02. A lawyer shall not counsel or abet activities aimed at

defiance of the law or at lessening confidence in the legal system.

In addition, it may also be relevant to point out that advertisements such as that
shown in Annex "A" of the Petition, which contains a cartoon of a motor vehicle with
the words "Just Married" on its bumper and seems to address those planning a "secret
marriage," if not suggesting a "secret marriage," makes light of the "special contract of
permanent union," the inviolable social institution," which is how the Family Code
describes marriage, obviously to emphasize its sanctity and inviolability. Worse, this
particular advertisement appears to encourage marriages celebrated in secrecy, which
is suggestive of immoral publication of applications for a marriage license.

If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that
the above impressions one may gather from the advertisements in question are
accurate. The Sharon Cuneta-Gabby Concepcion example alone confirms what the
advertisements suggest. Here it can be seen that criminal acts are being encouraged
or committed
(a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the
jurisdiction of Philippine courts does not extend to the place where the crime is
committed.

Even if it be assumed, arguendo, (that) the "legal support services" respondent offers
do not constitute legal services as commonly understood, the advertisements in
question give the impression that respondent corporation is being operated by lawyers
and that it offers legal services, as earlier discussed. Thus, the only logical
consequence is that, in the eyes of an ordinary newspaper reader, members of the bar
themselves are encouraging or inducing the performance of acts which are contrary to
law, morals, good customs and the public good, thereby destroying and demeaning the
integrity of the Bar.

xxx xxx xxx

It is respectfully submitted that respondent should be enjoined from causing the

publication of the advertisements in question, or any other advertisements similar
thereto. It is also submitted that respondent should be prohibited from further
performing or offering some of the services it presently offers, or, at the very least,
from offering such services to the public in general.
The IBP is aware of the fact that providing computerized legal research, electronic data
gathering, storage and retrieval, standardized legal forms, investigators for gathering
of evidence, and like services will greatly benefit the legal profession and should not be
stifled but instead encouraged. However, when the conduct of such business by non-
members of the Bar encroaches upon the practice of law, there can be no choice but to
prohibit such business.

Admittedly, many of the services involved in the case at bar can be better performed
by specialists in other fields, such as computer experts, who by reason of their having
devoted time and effort exclusively to such field cannot fulfill the exacting
requirements for admission to the Bar. To prohibit them from "encroaching" upon the
legal profession will deny the profession of the great benefits and advantages of
modern technology. Indeed, a lawyer using a computer will be doing better than a
lawyer using a typewriter, even if both are (equal) in skill.

Both the Bench and the Bar, however, should be careful not to allow or tolerate the
illegal practice of law in any form, not only for the protection of members of the Bar
but also, and more importantly, for the protection of the public. Technological
development in the profession may be encouraged without tolerating, but instead
ensuring prevention of illegal practice.

There might be nothing objectionable if respondent is allowed to perform all of its

services, but only if such services are made available exclusively to members of the
Bench and Bar. Respondent would then be offering technical assistance, not legal
services. Alternatively, the more difficult task of carefully distinguishing between which
service may be offered to the public in general and which should be made available
exclusively to members of the Bar may be undertaken. This, however, may require
further proceedings because of the factual considerations involved.

It must be emphasized, however, that some of respondent's services ought to be

prohibited outright, such as acts which tend to suggest or induce celebration abroad of
marriages which are bigamous or otherwise illegal and void under Philippine law. While
respondent may not be prohibited from simply disseminating information regarding
such matters, it must be required to include, in the information given, a disclaimer that
it is not authorized to practice law, that certain course of action may be illegal under
Philippine law, that it is not authorized or capable of rendering a legal opinion, that a
lawyer should be consulted before deciding on which course of action to take, and that
it cannot recommend any particular lawyer without subjecting itself to possible
sanctions for illegal practice of law.

If respondent is allowed to advertise, advertising should be directed exclusively at

members of the Bar, with a clear and unmistakable disclaimer that it is not authorized
to practice law or perform legal services.

The benefits of being assisted by paralegals cannot be ignored. But nobody should be
allowed to represent himself as a "paralegal" for profit, without such term being clearly
defined by rule or regulation, and without any adequate and effective means of
regulating his activities. Also, law practice in a corporate form may prove to be
advantageous to the legal profession, but before allowance of such practice may be
considered, the corporation's Article of Incorporation and By-laws must conform to
each and every provision of the Code of Professional Responsibility and the Rules of
Court. 5

2. Philippine Bar Association:

xxx xxx xxx.

Respondent asserts that it "is not engaged in the practice of law but engaged in giving
legal support services to lawyers and laymen, through experienced paralegals, with
the use of modern computers and electronic machines" (pars. 2 and 3, Comment). This
is absurd. Unquestionably, respondent's acts of holding out itself to the public under
the trade name "The Legal Clinic, Inc.," and soliciting employment for its enumerated
services fall within the realm of a practice which thus yields itself to the regulatory
powers of the Supreme Court. For respondent to say that it is merely engaged in
paralegal work is to stretch credulity. Respondent's own commercial advertisement
which announces a certain Atty. Don Parkinson to be handling the fields of law belies
its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and
rendering legal services through its reserve of lawyers. It has been held that the
practice of law is not limited to the conduct of cases in court, but includes drawing of
deeds, incorporation, rendering opinions, and advising clients as to their legal right
and then take them to an attorney and ask the latter to look after their case in court
See Martin, Legal and Judicial Ethics, 1984 ed., p. 39).

It is apt to recall that only natural persons can engage in the practice of law, and such
limitation cannot be evaded by a corporation employing competent lawyers to practice
for it. Obviously, this is the scheme or device by which respondent "The Legal Clinic,
Inc." holds out itself to the public and solicits employment of its legal services. It is an
odious vehicle for deception, especially so when the public cannot ventilate any
grievance for malpractice against the business conduit. Precisely, the limitation of
practice of law to persons who have been duly admitted as members of the Bar (Sec.
1, Rule 138, Revised Rules of Court) is to subject the members to the discipline of the
Supreme Court. Although respondent uses its business name, the persons and the
lawyers who act for it are subject to court discipline. The practice of law is not a
profession open to all who wish to engage in it nor can it be assigned to another (See 5
Am. Jur. 270). It is a personal right limited to persons who have qualified themselves
under the law. It follows that not only respondent but also all the persons who are
acting for respondent are the persons engaged in unethical law practice. 6

3. Philippine Lawyers' Association:

The Philippine Lawyers' Association's position, in answer to the issues stated herein,
are wit:

1. The Legal Clinic is engaged in the practice of law;

2. Such practice is unauthorized;

3. The advertisements complained of are not only unethical, but also misleading and
patently immoral; and

4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic
and its corporate officers for its unauthorized practice of law and for its unethical,
misleading and immoral advertising.

xxx xxx xxx

Respondent posits that is it not engaged in the practice of law. It claims that it merely
renders "legal support services" to answers, litigants and the general public as
enunciated in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages
2 to 5 of Respondent's Comment). But its advertised services, as enumerated above,
clearly and convincingly show that it is indeed engaged in law practice, albeit outside
of court.

As advertised, it offers the general public its advisory services on Persons and Family
Relations Law, particularly regarding foreign divorces, annulment of marriages, secret
marriages, absence and adoption; Immigration Laws, particularly on visa related
problems, immigration problems; the Investments Law of the Philippines and such
other related laws.

Its advertised services unmistakably require the application of the aforesaid law, the
legal principles and procedures related thereto, the legal advices based thereon and
which activities call for legal training, knowledge and experience.

Applying the test laid down by the Court in the aforecited Agrava Case, the activities of
respondent fall squarely and are embraced in what lawyers and laymen equally term
as "the practice of law." 7

4. U.P. Women Lawyers' Circle:

In resolving, the issues before this Honorable Court, paramount consideration should
be given to the protection of the general public from the danger of being exploited by
unqualified persons or entities who may be engaged in the practice of law.

At present, becoming a lawyer requires one to take a rigorous four-year course of study
on top of a four-year bachelor of arts or sciences course and then to take and pass the
bar examinations. Only then, is a lawyer qualified to practice law.

While the use of a paralegal is sanctioned in many jurisdiction as an aid to the

administration of justice, there are in those jurisdictions, courses of study and/or
standards which would qualify these paralegals to deal with the general public as such.
While it may now be the opportune time to establish these courses of study and/or
standards, the fact remains that at present, these do not exist in the Philippines. In the
meantime, this Honorable Court may decide to make measures to protect the general
public from being exploited by those who may be dealing with the general public in the
guise of being "paralegals" without being qualified to do so.

In the same manner, the general public should also be protected from the dangers
which may be brought about by advertising of legal services. While it appears that
lawyers are prohibited under the present Code of Professional Responsibility from
advertising, it appears in the instant case that legal services are being advertised not
by lawyers but by an entity staffed by "paralegals." Clearly, measures should be taken
to protect the general public from falling prey to those who advertise legal services
without being qualified to offer such services. 8

A perusal of the questioned advertisements of Respondent, however, seems to give

the impression that information regarding validity of marriages, divorce, annulment of
marriage, immigration, visa extensions, declaration of absence, adoption and foreign
investment, which are in essence, legal matters , will be given to them if they avail of
its services. The Respondent's name The Legal Clinic, Inc. does not help matters.
It gives the impression again that Respondent will or can cure the legal problems
brought to them. Assuming that Respondent is, as claimed, staffed purely by
paralegals, it also gives the misleading impression that there are lawyers involved in
The Legal Clinic, Inc., as there are doctors in any medical clinic, when only "paralegals"
are involved in The Legal Clinic, Inc.

Respondent's allegations are further belied by the very admissions of its President and
majority stockholder, Atty. Nogales, who gave an insight on the structure and main
purpose of Respondent corporation in the aforementioned "Starweek" article." 9

5. Women Lawyer's Association of the Philippines:

Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the
purpose of gain which, as provided for under the above cited law, (are) illegal and
against the Code of Professional Responsibility of lawyers in this country.

Annex "A" of the petition is not only illegal in that it is an advertisement to solicit
cases, but it is illegal in that in bold letters it announces that the Legal Clinic, Inc.,
could work out/cause the celebration of a secret marriage which is not only illegal but
immoral in this country. While it is advertised that one has to go to said agency and
pay P560 for a valid marriage it is certainly fooling the public for valid marriages in the
Philippines are solemnized only by officers authorized to do so under the law. And to
employ an agency for said purpose of contracting marriage is not necessary.

No amount of reasoning that in the USA, Canada and other countries the trend is
towards allowing lawyers to advertise their special skills to enable people to obtain
from qualified practitioners legal services for their particular needs can justify the use
of advertisements such as are the subject matter of the petition, for one (cannot)
justify an illegal act even by whatever merit the illegal act may serve. The law has yet
to be amended so that such act could become justifiable.

We submit further that these advertisements that seem to project that secret
marriages and divorce are possible in this country for a fee, when in fact it is not so,
are highly reprehensible.

It would encourage people to consult this clinic about how they could go about having
a secret marriage here, when it cannot nor should ever be attempted, and seek advice
on divorce, where in this country there is none, except under the Code of Muslim
Personal Laws in the Philippines. It is also against good morals and is deceitful because
it falsely represents to the public to be able to do that which by our laws cannot be
done (and) by our Code of Morals should not be done.

In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for
clients by an attorney by circulars of advertisements, is unprofessional, and offenses of
this character justify permanent elimination from the Bar. 10

6. Federacion Internacional de Abogados:

xxx xxx xxx

1.7 That entities admittedly not engaged in the practice of law, such as management
consultancy firms or travel agencies, whether run by lawyers or not, perform the
services rendered by Respondent does not necessarily lead to the conclusion that
Respondent is not unlawfully practicing law. In the same vein, however, the fact that
the business of respondent (assuming it can be engaged in independently of the
practice of law) involves knowledge of the law does not necessarily make respondent
guilty of unlawful practice of law.

. . . . Of necessity, no one . . . . acting as a consultant can render

effective service unless he is familiar with such statutes and
regulations. He must be careful not to suggest a course of conduct
which the law forbids. It seems . . . .clear that (the consultant's)
knowledge of the law, and his use of that knowledge as a factor in
determining what measures he shall recommend, do not constitute the
practice of law . . . . It is not only presumed that all men know the law,
but it is a fact that most men have considerable acquaintance with
broad features of the law . . . . Our knowledge of the law accurate or
inaccurate moulds our conduct not only when we are acting for
ourselves, but when we are serving others. Bankers, liquor dealers and
laymen generally possess rather precise knowledge of the laws
touching their particular business or profession. A good example is the
architect, who must be familiar with zoning, building and fire
prevention codes, factory and tenement house statutes, and who
draws plans and specification in harmony with the law. This is not
practicing law.

But suppose the architect, asked by his client to omit a fire tower,
replies that it is required by the statute. Or the industrial relations
expert cites, in support of some measure that he recommends, a
decision of the National Labor Relations Board. Are they practicing law?
In my opinion, they are not, provided no separate fee is charged for the
legal advice or information, and the legal question is subordinate and
incidental to a major non-legal problem.

It is largely a matter of degree and of custom.

If it were usual for one intending to erect a building on his land to

engage a lawyer to advise him and the architect in respect to the
building code and the like, then an architect who performed this
function would probably be considered to be trespassing on territory
reserved for licensed attorneys. Likewise, if the industrial relations field
had been pre-empted by lawyers, or custom placed a lawyer always at
the elbow of the lay personnel man. But this is not the case. The most
important body of the industrial relations experts are the officers and
business agents of the labor unions and few of them are lawyers.
Among the larger corporate employers, it has been the practice for
some years to delegate special responsibility in employee matters to a
management group chosen for their practical knowledge and skill in
such matter, and without regard to legal thinking or lack of it. More
recently, consultants like the defendants have the same service that
the larger employers get from their own specialized staff.

The handling of industrial relations is growing into a recognized

profession for which appropriate courses are offered by our leading
universities. The court should be very cautious about declaring [that] a
widespread, well-established method of conducting business is
unlawful, or that the considerable class of men who customarily
perform a certain function have no right to do so, or that the technical
education given by our schools cannot be used by the graduates in
their business.

In determining whether a man is practicing law, we should consider his

work for any particular client or customer, as a whole. I can imagine
defendant being engaged primarily to advise as to the law defining his
client's obligations to his employees, to guide his client's obligations to
his employees, to guide his client along the path charted by law. This,
of course, would be the practice of the law. But such is not the fact in
the case before me. Defendant's primarily efforts are along economic
and psychological lines. The law only provides the frame within which
he must work, just as the zoning code limits the kind of building the
limits the kind of building the architect may plan. The incidental legal
advice or information defendant may give, does not transform his
activities into the practice of law. Let me add that if, even as a minor
feature of his work, he performed services which are customarily
reserved to members of the bar, he would be practicing law. For
instance, if as part of a welfare program, he drew employees' wills.

Another branch of defendant's work is the representations of the

employer in the adjustment of grievances and in collective bargaining,
 with or without a mediator. This is not per se the practice of law.
Anyone may use an agent for negotiations and may select an agent
particularly skilled in the subject under discussion, and the person
appointed is free to accept the employment whether or not he is a
member of the bar. Here, however, there may be an exception where
the business turns on a question of law. Most real estate sales are
negotiated by brokers who are not lawyers. But if the value of the land
depends on a disputed right-of-way and the principal role of the
negotiator is to assess the probable outcome of the dispute and
persuade the opposite party to the same opinion, then it may be that
only a lawyer can accept the assignment. Or if a controversy between
an employer and his men grows from differing interpretations of a
contract, or of a statute, it is quite likely that defendant should not
handle it. But I need not reach a definite conclusion here, since the
situation is not presented by the proofs.

Defendant also appears to represent the employer before

administrative agencies of the federal government, especially before
trial examiners of the National Labor Relations Board. An agency of the
federal government, acting by virtue of an authority granted by the
Congress, may regulate the representation of parties before such
agency. The State of New Jersey is without power to interfere with such
determination or to forbid representation before the agency by one
whom the agency admits. The rules of the National Labor Relations
Board give to a party the right to appear in person, or by counsel, or by
other representative. Rules and Regulations, September 11th, 1946, S.
203.31. 'Counsel' here means a licensed attorney, and ther
representative' one not a lawyer. In this phase of his work, defendant
may lawfully do whatever the Labor Board allows, even arguing
questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in
Statsky, Introduction to Paralegalism [1974], at pp. 154-156.).

1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which
may involve knowledge of the law) is not engaged in the practice of law provided that:

(a) The legal question is subordinate and incidental to a major non-legal problem;.

(b) The services performed are not customarily reserved to members of the bar; .

(c) No separate fee is charged for the legal advice or information.

All these must be considered in relation to the work for any particular client as a whole.

1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional
Responsibility succintly states the rule of conduct:

Rule 15.08 A lawyer who is engaged in another profession or occupation

concurrently with the practice of law shall make clear to his client whether he is acting
as a lawyer or in another capacity.

1.10. In the present case. the Legal Clinic appears to render wedding services (See
Annex "A" Petition). Services on routine, straightforward marriages, like securing a
marriage license, and making arrangements with a priest or a judge, may not
constitute practice of law. However, if the problem is as complicated as that described
in "Rx for Legal Problems" on the Sharon Cuneta-Gabby Concepcion-Richard Gomez
case, then what may be involved is actually the practice of law. If a non-lawyer, such
as the Legal Clinic, renders such services then it is engaged in the unauthorized
practice of law.
1.11. The Legal Clinic also appears to give information on divorce, absence, annulment
of marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational
materials may not constitute of law. The business is similar to that of a bookstore
where the customer buys materials on the subject and determines on the subject and
determines by himself what courses of action to take.

It is not entirely improbable, however, that aside from purely giving information, the
Legal Clinic's paralegals may apply the law to the particular problem of the client, and
give legal advice. Such would constitute unauthorized practice of law.

It cannot be claimed that the publication of a legal text which

publication of a legal text which purports to say what the law is amount
to legal practice. And the mere fact that the principles or rules stated
in the text may be accepted by a particular reader as a solution to his
problem does not affect this. . . . . Apparently it is urged that the
conjoining of these two, that is, the text and the forms, with advice as
to how the forms should be filled out, constitutes the unlawful practice
of law. But that is the situation with many approved and accepted
texts. Dacey's book is sold to the public at large. There is no personal
contact or relationship with a particular individual. Nor does there exist
that relation of confidence and trust so necessary to the status of
attorney and client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE THE
REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A
PARTICULAR SITUATION. At most the book assumes to offer general
advice on common problems, and does not purport to give personal
advice on a specific problem peculiar to a designated or readily
identified person. Similarly the defendant's publication does not
purport to give personal advice on a specific problem peculiar to a
designated or readily identified person in a particular situation in
their publication and sale of the kits, such publication and sale did not
constitutes the unlawful practice of law . . . . There being no legal
impediment under the statute to the sale of the kit, there was no
proper basis for the injunction against defendant maintaining an office
for the purpose of selling to persons seeking a divorce, separation,
annulment or separation agreement any printed material or writings
relating to matrimonial law or the prohibition in the memorandum of
modification of the judgment against defendant having an interest in
any publishing house publishing his manuscript on divorce and against
his having any personal contact with any prospective purchaser. The
record does fully support, however, the finding that for the change of
$75 or $100 for the kit, the defendant gave legal advice in the course
of personal contacts concerning particular problems which might arise
in the preparation and presentation of the purchaser's asserted
matrimonial cause of action or pursuit of other legal remedies and
assistance in the preparation of necessary documents (The injunction
therefore sought to) enjoin conduct constituting the practice of law,
particularly with reference to the giving of advice and counsel by the
defendant relating to specific problems of particular individuals in
connection with a divorce, separation, annulment of separation
agreement sought and should be affirmed. (State v. Winder, 348, NYS
2D 270 [1973], cited in Statsky, supra at p. 101.).

1.12. Respondent, of course, states that its services are "strictly non-diagnostic, non-
advisory. "It is not controverted, however, that if the services "involve giving legal
advice or counselling," such would constitute practice of law (Comment, par. 6.2). It is
in this light that FIDA submits that a factual inquiry may be necessary for the judicious
disposition of this case.

xxx xxx xxx

 2.10. Annex "A" may be ethically objectionable in that it can give the impression (or
perpetuate the wrong notion) that there is a secret marriage. With all the solemnities,
formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no
Philippine marriage can be secret.

2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof
(which is not necessarily related to the first paragraph) fails to state the limitation that
only "paralegal services?" or "legal support services", and not legal services, are
available." 11

A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the proper
determination of the issues raised by the petition at bar. On this score, we note that the clause
"practice of law" has long been the subject of judicial construction and interpretation. The courts have
laid down general principles and doctrines explaining the meaning and scope of the term, some of
which we now take into account.

Practice of law means any activity, in or out of court, which requires the application of law, legal
procedures, knowledge, training and experience. To engage in the practice of law is to perform those
acts which are characteristic of the profession. Generally, to practice law is to give advice or render
any kind of service that involves legal knowledge or skill. 12

The practice of law is not limited to the conduct of cases in court. It includes legal advice and counsel,
and the preparation of legal instruments and contract by which legal rights are secured, although such
matter may or may not be pending in a court. 13

In the practice of his profession, a licensed attorney at law generally engages in three principal types
of professional activity: legal advice and instructions to clients to inform them of their rights and
obligations, preparation for clients of documents requiring knowledge of legal principles not possessed
by ordinary layman, and appearance for clients before public tribunals which possess power and
authority to determine rights of life, liberty, and property according to law, in order to assist in proper
interpretation and enforcement of law. 14

When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of law.
15
One who confers with clients, advises them as to their legal rights and then takes the business to an
attorney and asks the latter to look after the case in court, is also practicing law. 16 Giving advice for
compensation regarding the legal status and rights of another and the conduct with respect thereto
constitutes a practice of law. 17 One who renders an opinion as to the proper interpretation of a statute,
and receives pay for it, is, to that extent, practicing law. 18

In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid down
the test to determine whether certain acts constitute "practice of law," thus:

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation, but
embraces the preparation of pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of legal instruments of all kinds,
and the giving of all legal advice to clients. It embraces all advice to clients and all
actions taken for them in matters connected with the law.

The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v.
Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the practice of law when
he:

. . . . for valuable consideration engages in the business of advising person, firms,

associations or corporations as to their right under the law, or appears in a
 representative capacity as an advocate in proceedings, pending or prospective, before
any court, commissioner, referee, board, body, committee, or commission constituted
by law or authorized to settle controversies and there, in such representative capacity,
performs any act or acts for the purpose of obtaining or defending the rights of their
clients under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that purpose, is
engaged in the practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S.
W. 2d 895, 340 Mo. 852).

This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-177),stated:

The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and special
proceedings, the management of such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying. In general, all advice to clients,
and all action taken for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance before a judicial
body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and in
matters or estate and guardianship have been held to constitute law practice, as do
the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5
Am. Jr. p. 262, 263).

Practice of law under modern conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large variety of subjects and
the preparation and execution of legal instruments covering an extensive field of
business and trust relations and other affairs. Although these transactions may have
no direct connection with court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor at law bear
an intimate relation to the administration of justice by the courts. No valid distinction,
so far as concerns the question set forth in the order, can be drawn between that part
of the work of the lawyer which involves appearance in court and that part which
involves advice and drafting of instruments in his office. It is of importance to the
welfare of the public that these manifold customary functions be performed by persons
possessed of adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re
Opinion of the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 197 A. 139, 144).

The practice of law, therefore, covers a wide range of activities in and out of court. Applying the
aforementioned criteria to the case at bar, we agree with the perceptive findings and observations of
the aforestated bar associations that the activities of respondent, as advertised, constitute "practice of
law."

The contention of respondent that it merely offers legal support services can neither be seriously
considered nor sustained. Said proposition is belied by respondent's own description of the services it
has been offering, to wit:

Legal support services basically consists of giving ready information by trained

paralegals to laymen and lawyers, which are strictly non-diagnostic, non-advisory,
through the extensive use of computers and modern information technology in the
gathering, processing, storage, transmission and reproduction of information and
communication, such as computerized legal research; encoding and reproduction of
 documents and pleadings prepared by laymen or lawyers; document search; evidence
gathering; locating parties or witnesses to a case; fact finding investigations; and
assistance to laymen in need of basic institutional services from government or non-
government agencies, like birth, marriage, property, or business registrations;
educational or employment records or certifications, obtaining documentation like
clearances, passports, local or foreign visas; giving information about laws of other
countries that they may find useful, like foreign divorce, marriage or adoption laws that
they can avail of preparatory to emigration to the foreign country, and other matters
that do not involve representation of clients in court; designing and installing computer
systems, programs, or software for the efficient management of law offices, corporate
legal departments, courts and other entities engaged in dispensing or administering
legal services. 20

While some of the services being offered by respondent corporation merely involve mechanical and
technical knowhow, such as the installation of computer systems and programs for the efficient
management of law offices, or the computerization of research aids and materials, these will not
suffice to justify an exception to the general rule.

What is palpably clear is that respondent corporation gives out legal information to laymen and
lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent than
real. In providing information, for example, about foreign laws on marriage, divorce and adoption, it
strains the credulity of this Court that all the respondent corporation will simply do is look for the law,
furnish a copy thereof to the client, and stop there as if it were merely a bookstore. With its attorneys
and so called paralegals, it will necessarily have to explain to the client the intricacies of the law and
advise him or her on the proper course of action to be taken as may be provided for by said law. That
is what its advertisements represent and for the which services it will consequently charge and be
paid. That activity falls squarely within the jurisprudential definition of "practice of law." Such a
conclusion will not be altered by the fact that respondent corporation does not represent clients in
court since law practice, as the weight of authority holds, is not limited merely giving legal advice,
contract drafting and so forth.

The aforesaid conclusion is further strengthened by an article published in the January 13, 1991 issue
of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal Problems," where
an insight into the structure, main purpose and operations of respondent corporation was given by its
own "proprietor," Atty. Rogelio P. Nogales:

This is the kind of business that is transacted everyday at The Legal Clinic, with offices
on the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter
what the client's problem, and even if it is as complicated as the Cuneta-Concepcion
domestic situation, Atty. Nogales and his staff of lawyers, who, like doctors are
"specialists" in various fields can take care of it. The Legal Clinic, Inc. has specialists in
taxation and criminal law, medico-legal problems, labor, litigation, and family law.
These specialist are backed up by a battery of paralegals, counsellors and attorneys.

Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field
toward specialization, it caters to clients who cannot afford the services of the big law
firms.

The Legal Clinic has regular and walk-in clients. "when they come, we start by
analyzing the problem. That's what doctors do also. They ask you how you contracted
what's bothering you, they take your temperature, they observe you for the symptoms
and so on. That's how we operate, too. And once the problem has been categorized,
then it's referred to one of our specialists.

There are cases which do not, in medical terms, require surgery or follow-up treatment.
These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a
simple deed of sale or an affidavit of loss can be taken care of by our staff or, if this
were a hospital the residents or the interns. We can take care of these matters on a
 while you wait basis. Again, kung baga sa hospital, out-patient, hindi kailangang ma-
confine. It's just like a common cold or diarrhea," explains Atty. Nogales.

Those cases which requires more extensive "treatment" are dealt with accordingly. "If
you had a rich relative who died and named you her sole heir, and you stand to inherit
millions of pesos of property, we would refer you to a specialist in taxation. There
would be real estate taxes and arrears which would need to be put in order, and your
relative is even taxed by the state for the right to transfer her property, and only a
specialist in taxation would be properly trained to deal with the problem. Now, if there
were other heirs contesting your rich relatives will, then you would need a litigator,
who knows how to arrange the problem for presentation in court, and gather evidence
to support the case. 21

That fact that the corporation employs paralegals to carry out its services is not controlling. What is
important is that it is engaged in the practice of law by virtue of the nature of the services it renders
which thereby brings it within the ambit of the statutory prohibitions against the advertisements which
it has caused to be published and are now assailed in this proceeding.

Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts sufficiently
establish that the main purpose of respondent is to serve as a one-stop-shop of sorts for various legal
problems wherein a client may avail of legal services from simple documentation to complex litigation
and corporate undertakings. Most of these services are undoubtedly beyond the domain of paralegals,
but rather, are exclusive functions of lawyers engaged in the practice of law. 22

It should be noted that in our jurisdiction the services being offered by private respondent which
constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a
member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules of
Court, and who is in good and regular standing, is entitled to practice law. 23

Public policy requires that the practice of law be limited to those individuals found duly qualified in
education and character. The permissive right conferred on the lawyers is an individual and limited
privilege subject to withdrawal if he fails to maintain proper standards of moral and professional
conduct. The purpose is to protect the public, the court, the client and the bar from the incompetence
or dishonesty of those unlicensed to practice law and not subject to the disciplinary control of the
court. 24

The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw
support for his thesis. The doctrines there also stress that the practice of law is limited to those who
meet the requirements for, and have been admitted to, the bar, and various statutes or rules
specifically so provide. 25 The practice of law is not a lawful business except for members of the bar
who have complied with all the conditions required by statute and the rules of court. Only those
persons are allowed to practice law who, by reason of attainments previously acquired through
education and study, have been recognized by the courts as possessing profound knowledge of legal
science entitling them to advise, counsel with, protect, or defend the rights claims, or liabilities of their
clients, with respect to the construction, interpretation, operation and effect of law. 26 The justification
for excluding from the practice of law those not admitted to the bar is found, not in the protection of
the bar from competition, but in the protection of the public from being advised and represented in
legal matters by incompetent and unreliable persons over whom the judicial department can exercise
little control. 27

We have to necessarily and definitely reject respondent's position that the concept in the United States
of paralegals as an occupation separate from the law profession be adopted in this jurisdiction.
Whatever may be its merits, respondent cannot but be aware that this should first be a matter for
judicial rules or legislative action, and not of unilateral adoption as it has done.

Paralegals in the United States are trained professionals. As admitted by respondent, there are schools
and universities there which offer studies and degrees in paralegal education, while there are none in
the Philippines. 28 As the concept of the "paralegals" or "legal assistant" evolved in the United States,
standards and guidelines also evolved to protect the general public. One of the major standards or
guidelines was developed by the American Bar Association which set up Guidelines for the Approval of
Legal Assistant Education Programs (1973). Legislation has even been proposed to certify legal
assistants. There are also associations of paralegals in the United States with their own code of
professional ethics, such as the National Association of Legal Assistants, Inc. and the American
Paralegal Association. 29

In the Philippines, we still have a restricted concept and limited acceptance of what may be considered
as paralegal service. As pointed out by FIDA, some persons not duly licensed to practice law are or
have been allowed limited representation in behalf of another or to render legal services, but such
allowable services are limited in scope and extent by the law, rules or regulations granting permission
therefor. 30

Accordingly, we have adopted the American judicial policy that, in the absence of constitutional or
statutory authority, a person who has not been admitted as an attorney cannot practice law for the
proper administration of justice cannot be hindered by the unwarranted intrusion of an unauthorized
and unskilled person into the practice of law. 31 That policy should continue to be one of encouraging
persons who are unsure of their legal rights and remedies to seek legal assistance only from persons
licensed to practice law in the state. 32

Anent the issue on the validity of the questioned advertisements, the Code of Professional
Responsibility provides that a lawyer in making known his legal services shall use only true, honest,
fair, dignified and objective information or statement of facts. 33 He is not supposed to use or permit
the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement
or claim regarding his qualifications or legal services. 34 Nor shall he pay or give something of value to
representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.
35
Prior to the adoption of the code of Professional Responsibility, the Canons of Professional Ethics had
also warned that lawyers should not resort to indirect advertisements for professional employment,
such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in
connection with causes in which the lawyer has been or is engaged or concerning the manner of their
conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other
like self-laudation. 36

The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer
cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner
similar to a merchant advertising his goods. 37 The prescription against advertising of legal services or
solicitation of legal business rests on the fundamental postulate that the that the practice of law is a
profession. Thus, in the case of The Director of Religious Affairs. vs. Estanislao R. Bayot 38 an
advertisement, similar to those of respondent which are involved in the present proceeding, 39 was
held to constitute improper advertising or solicitation.

The pertinent part of the decision therein reads:

It is undeniable that the advertisement in question was a flagrant violation by the

respondent of the ethics of his profession, it being a brazen solicitation of business
from the public. Section 25 of Rule 127 expressly provides among other things that
"the practice of soliciting cases at law for the purpose of gain, either personally or thru
paid agents or brokers, constitutes malpractice." It is highly unethical for an attorney
to advertise his talents or skill as a merchant advertises his wares. Law is a profession
and not a trade. The lawyer degrades himself and his profession who stoops to and
adopts the practices of mercantilism by advertising his services or offering them to the
public. As a member of the bar, he defiles the temple of justice with mercenary
activities as the money-changers of old defiled the temple of Jehovah. "The most
worthy and effective advertisement possible, even for a young lawyer, . . . . is the
establishment of a well-merited reputation for professional capacity and fidelity to
trust. This cannot be forced but must be the outcome of character and conduct."
(Canon 27, Code of Ethics.).

We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a well-
merited reputation for professional capacity and fidelity to trust, which must be earned as the outcome
of character and conduct. Good and efficient service to a client as well as to the community has a way
of publicizing itself and catching public attention. That publicity is a normal by-product of effective
service which is right and proper. A good and reputable lawyer needs no artificial stimulus to generate
it and to magnify his success. He easily sees the difference between a normal by-product of able
service and the unwholesome result of propaganda. 40

Of course, not all types of advertising or solicitation are prohibited. The canons of the profession
enumerate exceptions to the rule against advertising or solicitation and define the extent to which
they may be undertaken. The exceptions are of two broad categories, namely, those which are
expressly allowed and those which are necessarily implied from the restrictions. 41

The first of such exceptions is the publication in reputable law lists, in a manner consistent with the
standards of conduct imposed by the canons, of brief biographical and informative data. "Such data
must not be misleading and may include only a statement of the lawyer's name and the names of his
professional associates; addresses, telephone numbers, cable addresses; branches of law practiced;
date and place of birth and admission to the bar; schools attended with dates of graduation, degrees
and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal
teaching positions; membership and offices in bar associations and committees thereof, in legal and
scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and
addresses of references; and, with their written consent, the names of clients regularly represented." 42

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere
supplemental feature of a paper, magazine, trade journal or periodical which is published principally
for other purposes. For that reason, a lawyer may not properly publish his brief biographical and
informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit
his name to be published in a law list the conduct, management or contents of which are calculated or
likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession. 43

The use of an ordinary simple professional card is also permitted. The card may contain only a
statement of his name, the name of the law firm which he is connected with, address, telephone
number and special branch of law practiced. The publication of a simple announcement of the opening
of a law firm or of changes in the partnership, associates, firm name or office address, being for the
convenience of the profession, is not objectionable. He may likewise have his name listed in a
telephone directory but not under a designation of special branch of law. 44

Verily, taking into consideration the nature and contents of the advertisements for which respondent is
being taken to task, which even includes a quotation of the fees charged by said respondent
corporation for services rendered, we find and so hold that the same definitely do not and conclusively
cannot fall under any of the above-mentioned exceptions.

The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and
constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar.
Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an
exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for
an initial consultation or the availability upon request of a written schedule of fees or an estimate of
the fee to be charged for the specific services. No such exception is provided for, expressly or
impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional
Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the
exceptions stated therein are "not applicable in any state unless and until it is implemented by such
authority in that state." 46 This goes to show that an exception to the general rule, such as that being
invoked by herein respondent, can be made only if and when the canons expressly provide for such an
exception. Otherwise, the prohibition stands, as in the case at bar.

It bears mention that in a survey conducted by the American Bar Association after the decision in
Bates, on the attitude of the public about lawyers after viewing television commercials, it was found
that public opinion dropped significantly 47 with respect to these characteristics of lawyers:

Trustworthy from 71% to 14%

Professional from 71% to 14%
 Honest from 65% to 14%
Dignified from 45% to 14%

Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to allow
the publication of advertisements of the kind used by respondent would only serve to aggravate what
is already a deteriorating public opinion of the legal profession whose integrity has consistently been
under attack lately by media and the community in general. At this point in time, it is of utmost
importance in the face of such negative, even if unfair, criticisms at times, to adopt and maintain that
level of professional conduct which is beyond reproach, and to exert all efforts to regain the high
esteem formerly accorded to the legal profession.

In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to
advertise his services except in allowable instances 48 or to aid a layman in the unauthorized practice
of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator, major stockholder
and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he is hereby reprimanded,
with a warning that a repetition of the same or similar acts which are involved in this proceeding will
be dealt with more severely.

While we deem it necessary that the question as to the legality or illegality of the purpose/s for which
the Legal Clinic, Inc. was created should be passed upon and determined, we are constrained to refrain
from lapsing into an obiter on that aspect since it is clearly not within the adjudicative parameters of
the present proceeding which is merely administrative in nature. It is, of course, imperative that this
matter be promptly determined, albeit in a different proceeding and forum, since, under the present
state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of
law in this country. This interdiction, just like the rule against unethical advertising, cannot be
subverted by employing some so-called paralegals supposedly rendering the alleged support services.

The remedy for the apparent breach of this prohibition by respondent is the concern and province of
the Solicitor General who can institute the corresponding quo warranto action, 50 after due
ascertainment of the factual background and basis for the grant of respondent's corporate charter, in
light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the Solicitor
General for such action as may be necessary under the circumstances.

ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal Clinic, Inc.,
from issuing or causing the publication or dissemination of any advertisement in any form which is of
the same or similar tenor and purpose as Annexes "A" and "B" of this petition, and from conducting,
directly or indirectly, any activity, operation or transaction proscribed by law or the Code of
Professional Ethics as indicated herein. Let copies of this resolution be furnished the Integrated Bar of
the Philippines, the Office of the Bar Confidant and the Office of the Solicitor General for appropriate
action in accordance herewith.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur

EN BANC

G.R. No. L-24735 October 31, 1969

CONSOLACION P. MANGILA, Petitioner, vs. THE HON. JUDGE JOSE T. LANTIN, and THE
PROVINCIAL FISCAL OF TARLAC, TARLAC, Respondents.

Moises Sevilla Ocampo and Maximino Q. Canlas for petitioner.

Provincial Fiscal Bartolome P. Arboleda for respondents.

SANCHEZ, J.:
In this petition for certiorari and prohibition, we are asked to strike down respondent judge's order
sustaining his jurisdiction to hear and determine a criminal case for serious slander in which petitioner
is the accused.chanroblesvirtualawlibrarychanrobles virtual law library

The present case has its beginning in a verified criminal complaint filed with the Fiscal's Office on
October 8, 1963 by the spouses Naciensena Santos de Dazo and Mariano T. Dazo, charging petitioner
Consolacion P. Mangila with serious slander. Two days thereafter, on October 10, 1963, Assistant
Provincial Fiscal Fernando M. Bartolome, before whom the foregoing complaint was subscribed and
sworn to, lodged an information signed by him for serious slander against Consolacion P. Mangila
before the Court of First Instance of Tarlac.1 The fiscal later registered on February 15, 1965 an
amended information attaching thereto the complaint of the offended spouses filed with the fiscal. The
defamatory words claimed to have uttered by Concepcion P. Mangila in Concepcion, Tarlac, on or about
September 30, 1963 consist of the following: "BAYU CO MIYASAWA MAGLANDI CA PANG CANG DAZO,
PUTANG MALANDING PACARAT," which translated into English reads as follows: "BEFORE YOU WERE
MARRIED YOU HAD ILLICIT RELATIONS WITH DAZO. PROSTITUTE." Such defamatory words, it is averred,
were directed against the spouses Dazo.chanroblesvirtualawlibrarychanrobles virtual law library

On February 12, 1965, petitioner herein, Consolacion P. Mangila, moved in the court below to quash the
information. She claims lack of court jurisdiction because: (1) the crime of serious slander falls within
the exclusive jurisdiction of the Municipal Court of Concepcion, Tarlac; and (2) the defamation charged
consists in the imputation of a crime which cannot be prosecuted de officio, and yet, the criminal
action was not brought at the instance of and upon complaint expressly filed by the offended parties.
Respondent judge's resolution of February 24, 1965 dismissed the information for lack of jurisdiction of
the court to try the case.chanroblesvirtualawlibrarychanrobles virtual law library

However, on motion to reconsider filed by the prosecuting attorney, respondent judge, on May 10,
1965, reconsidered its order of dismissal, denied the motion to quash and set a date for petitioner's
arraignment.chanroblesvirtualawlibrarychanrobles virtual law library

It was petitioner's turn to move for a reconsideration of the judge's May 10 order. Respondent judge, in
his order of June 17, 1965, resolved to deny the motion.chanroblesvirtualawlibrarychanrobles virtual
law library

Petitioner then came to this Court on certiorari and prohibition. On August 4, 1965, we issued a cease-
and-desist order.chanroblesvirtualawlibrarychanrobles virtual law library

1. Petitioner's position is that the case of grave oral defamation below falls within the sole and
exclusive jurisdiction of the Municipal Court of Concepcion, Tarlac. She cites Section 87 (c) of the
Judiciary Act of 1948, as amended by Republic Acts 2613 and 3828, the statute then in force. But we
should not overlook another provision of the same Judiciary Act of 1948, Section 44 (f), which should
be considered in connection with Section 87 (c).It may perhaps aid understanding if we reproduce the
two in parallel columns:

SEC. 44. Original jurisdiction. - SEC. 87. Original jurisdiction to try

Courts of First Instance shall have criminal cases. - Municipal judges
original jurisdiction: and judges of city courts of chartered
cities shall have original jurisdiction
x x x over:chanrobles virtual law library

(f) In all criminal cases in which x x x

the penalty provided by law is
imprisonment for more than six months, (c) Except violations of election laws
or a fine of more than two hundred all other offenses in which the
pesos. penalty provided by law
is imprisonment for not more
than three years, or a fine of not more than
three thousand pesos, or both such
fine and imprisonment.
The case before us presents another occasion for reaffirming what has been elaborately discussed and
repeatedly ruled upon in a number of cases.2 For, the penalty for serious oral defamation ranges from
arresto mayor in its maximum period to prision correccional in its minimum period - from four months
and one day to two years and four months.3 Which, in passing, is clearly within the area of the penalty
- for jurisdictional purposes - prescribed in Section 44(f) and 87(c)
aforementioned.chanroblesvirtualawlibrarychanrobles virtual law library

Expositor of the law is Esperat vs. Avila, supra. It gives a direct answer to the question here posed. Mr.
Justice J.B.L. Reyes, speaking for the Court, there said:

The fallacy in petitioner's argument lies in his failure to consider section 44(f) of the same Judiciary Act
of 1948, in conjunction with its section 87(c). Note that notwithstanding the various amendments
received by section 87, section 44(f) remained unaltered, thereby indicating the intention of the
legislators to retain the original jurisdiction of the court of first instance in certain cases. The fact that
the jurisdiction of the municipal or city courts was enlarged in virtue of the amendment of section
87(c), cannot be taken as a repeal or withdrawal of the jurisdiction conferred on the court of first
instance. Not only is implied repeal disfavored by the law, but also, it is a cardinal principle that a
statute must be so construed as to harmonize all apparent conflicts, and give effect to all its provisions
whenever possible.4

Indeed, we see no inconsistency between Sections 44(f) and 87(c), both of the Judiciary Act of 1948.
The two can stand together. One does not displace the other. As we reconcile and harmonize, we find
that the two can be given a conjoint, not a discordant, effect. As we have said in a previous case, 5
"[w]e have to take the thought conveyed by the statute as a whole; construe the constituent parts
together; ascertain the legislative intent from the whole act; consider each and every provision thereof
in the light of the general purpose of the statute; and endeavour to make every part effective,
harmonious, sensible."chanrobles virtual law library

There is, indeed, parity of jurisdiction in the municipal court and in the Court of First Instance over
criminal cases - except violations of election laws - in which the penalty imposable is more than six
months' imprisonment or a fine of more than P200, but not exceeding three years' imprisonment, or a
fine of P3,000, or both such fine and imprisonment. Since Criminal Case 2923 for serious slander calls
for a penalty (arresto mayor in its maximum period to prision correccional in its minimum period)
which is clearly within the range just mentioned, the Court of First Instance of Tarlac may not be shorn
of its jurisdiction to try said case.chanroblesvirtualawlibrarychanrobles virtual law library

2. Petitioner decries the fact that the criminal prosecution was not brought at the instance of and upon
the complaint expressly filed by the offended parties. This calls into focus the last paragraph of Article
360 of the Revised Penal Code, as amended by Republic Act 1289, which reads: "No criminal action for
defamation which consists in the imputation of a crime which cannot be prosecuted de officio shall be
brought except at the instance of and upon complaint expressly filed by the offended party."chanrobles
virtual law library

A cursory reading of the statute just quoted will yield the conclusion that the present defamation case
is outside the restricted area therein provided. The indictment alleges that petitioner uttered publicly
and maliciously the defamatory words that the Dazos had illicit relations with each other before they
were married, and that the wife, Naciensena Santos de Dazo, was a prostitute. This is not an
imputation which cannot be prosecuted de officio and which, by express provision in Article 360 of the
Revised Penal Code, would require that the criminal action be brought "at the instance of and upon
complaint expressly filed by the offended party." The crimes which cannot be prosecuted de officio are
with specificity enumerated in Title XI, Book Two, of the Revised Penal Code, thus - adultery,
concubinage, seduction, abduction, rape, or acts of lasciviousness. 6 The slanderous imputation here
certainly is not one of those just recited. The reason, we must say, is that prostitution is a crime. But it
is a crime against public morals and can be prosecuted de officio. The alleged premarital relations of
the offended husband and wife could be a vice or defect. And again, Article 360 of the Revised Penal
Code does not apply. Because, the law only exacts that a criminal action for defamation be filed at the
instance of or upon complaint expressly signed by the offended party where the crime imputed cannot
be prosecuted de officio.chanroblesvirtualawlibrarychanrobles virtual law library
Having reached the conclusion that the criminal information filed by the Assistant Provincial Fiscal of
Tarlac in Criminal Case 2923 (People of the Philippines, Plaintiff, versus Consolacion P. Mangila,
Accused) heretofore mentioned does not suffer from the defects pointed out by petitioner, the petition
herein is hereby dismissed, and the writ of preliminary injunction heretofore issued by this Court
dissolved.chanroblesvirtualawlibrarychanrobles virtual law library

Costs against petitioner. So ordered.chanroblesvirtualawlibrarychanrobles virtual law library

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee and Barredo, JJ.,
concur.
Dizon, J., took no part.

EN BANC

[G.R. No. 129742. September 16, 1998]

TERESITA G. FABIAN petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as

ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon;
and NESTOR V. AGUSTIN respondents.

DECISION

REGALADO, J:

Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order"
issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the
motion for reconsideration of and absolved private respondents from administrative charges for inter
alia grave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department
of Public Works and Highways (DPWH).

It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G.
Fabian was the major stockholder and president of PROMAT Construction Development Corporation
(PROMAT) which was engaged in the construction business. Private respondents Nestor V. Agustin was
the incumbent District Engineering District (FMED) when he allegedly committed the offenses for which
he was administratively charged in the Office in the office of the Ombudsman.

Promat participated in the bidding for government construction project including those under the
FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner
into an amorous relationship. Their affair lasted for some time, in the course of which private
respondents gifted PROMAT with public works contracts and interceded for it in problems concerning
the same in his office.

Later, misunderstanding and unpleasant incidents developed between the parties and when petitioner
tried to terminate their relationship, private respondent refused and resisted her attempts to do so to
the extent of employing acts of harassment, intimidation and threats. She eventually filed the
aforementioned administrative case against him in a letter-complaint dated July 24, 1995.

The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act
No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service
Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges
referred to may be subsumed under the category of oppression, misconduct, and disgraceful or
immoral conduct.

On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private
respondents guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all
benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant
Ombudsman Abelardo Aportadera of their office.

Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid
resolution with modifications, by finding private respondent guilty of misconduct and meting out the
penalty of suspension without pay for one year. After private respondent moved for reconsideration,
respondent Ombudsman discovered that the former's new counsel had been his "classmate and close
associate" hence he inhibited himself. The case was transferred to respondent Deputy Ombudsman
Jesus F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the February 26,
1997 Order of respondent Ombudsman and exonerated private respondents from the administrative
charges.

II

In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of
1989)i[1] pertinently provides that -

In all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of
Procedure of the office of the Ombudsman),ii[2] when a respondent is absolved of the charges in an
administrative proceeding decision of the ombudsman is final and unappealable. She accordingly
submits that the office of the ombudsman has no authority under the law to restrict, in the manner
provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the
power of review of this Court. Because of the aforecited provision in those Rules of Procedure, she
claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court,
because of the doubt it creates on the availability of appeals under Rule 45 of the Rules of Court.

Respondents filed their respective comments and rejoined that the Office of the Ombudsman is
empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8),
Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can
"(p)romulgate its rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law."

Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:

Sec. 14. Restrictions. - x x x No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman except the Supreme Court on pure question on law.

xxx

Sec. 18. Rules of Procedure. - (1) The Office of the Ombudsman shall promulgate its own rules of
procedure for the effective exercise or performance of its powers, functions, and duties.

xxx

Sec. 23. Formal Investigation. - (1) Administrative investigations by the Office of the Ombudsman shall
be in accordance with its rules of procedure and consistent with the due process. x x x

xxx

Sec. 27. Effectivity and Finality of Decisions. - All provisionary orders at the Office of the
Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must
be filed within five (5) days after receipt of written notice shall be entertained only on any of the
following grounds:

xxx

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one month salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of
justice may require.

Respondents consequently contend that, on the foregoing constitutional and statutory authority,
petitioner cannot assail the validity of the rules of procedure formulated by the Office of the
Ombudsman governing the conduct of proceeding before it, including those with respect to the
availabity or non-avalability of appeal in administrative cases. Such as Section 7, Rule III of
Administrative Order No.07.

Respondents also question the propriety of petitioner's proposition that, although she definitely
prefaced her petition by categorizing the same as "an appeal by certiorari under Rule 45 of the Rules
of Court," she makes the aforequoted ambivalent statement which in effect asks that, should the
remedy under Rule 45 be unavailable, her petition be treated in the alternative as an original action
for certiorari under Rule 65. The parties thereafter engage in a discussion of the differences between a
petition for review on certiorari under Rule 45 and a special civil action of certiorari under Rule 65.

Ultimately, they also attempt to review and rationalize the decision of this Court applying Section 27
of Republic Act No. 6770 vis--vis Section 7, Rule III of Administrative Order No. 07. As correctly
pointed out by public respondents, Ocampo IV vs. Ombudsman, et al. iii[3] and Young vs. Office of the
Ombudsman, et al.iv[4] were original actions for certiorari under Rule 65. Yabut vs. Office of the
Ombudsman, et al.v[5] was commenced by a petition for review on certiorari under Rule 45. Then
came Cruz, Jr. vs. People, et al.,vi[6] Olivas vs. Office of the Ombudsman, et al., vii[7] Olivarez vs.
Sandiganbayan, et al.,viii[8] and Jao, et al. vs. Vasquez,ix[9] which were for certiorari, prohibition and/or
mandamus under Rule 65. Alba vs. Nitorreda, et al. x[10] was initiated by a pleading unlikely
denominated as an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary
remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano Desierto, et al. xi[11]
which was a special civil action for certiorari.

Considering, however the view that this Court now takes of the case at bar and the issues therein
which will shortly be explained, it refrains from preemptively resolving the controverted points raised
by the parties on the nature and propriety of application of the writ of certiorari when used as a mode
of appeal or as the basis of a special original action, and whether or not they may be resorted to
concurrently or alternatively, obvious though the answers thereto appear to be. Besides, some
seemingly obiter statements in Yabuts and Alba could bear reexamination and clarification. Hence, we
will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is
involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an
administrative diciplinary action. It cannot be taken into account where an original action for certiorari
under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal
action.

III
After respondents' separate comments had been filed, the Court was intrigued by the fact, which does
appear to have been seriously considered before, that the administrative liability of a public official
could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman.
Thus, the offenses imputed to herein private respondent were based on both Section 19 of Republic
Act. No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the amendment of
section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by Civil Service
Commission in administrative disciplinary cases were made appealable to the Court of Appeals
effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court.

It could thus be possible that in the same administrative case involving two respondents, the
proceedings against one could eventually have been elevated to the Court of Appeals, while the other
may have found its way to the Ombudsman from which it is sought to be brought to this Court. Yet
systematic and efficient case management would dictate the consolidation of those cases in the Court
of Appeals, both for expediency and to avoid possible conflicting decisions.

Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o
law shall be passed increasing the appellate indiction of the Supreme Court as provided in this
Constitution without its advice and consent," and that Republic Act No. 6770, with its challenged
Section 27, took effect on November 17, 1989, obviously in spite of that constitutional grounds must
be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule,
as we shall explain.

Since the constitution is intended fort the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to
overlook or disregard its commands or countenance evasions thereof. When it is clear that a statute
trangresses the authority vested in a legislative body, it is the duty of the courts to declare that the
constitution, and not the statute, governs in a case before them for judgement. xii[12]

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings,xiii[13] the rule has been recognized to admit of certain exceptions. It does not preclude a
court from inquiring into its own jurisdiction or compel it to enter a judgement that it lacks jurisdiction
to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the
court has no jurisdiction in the proceeding, and since it may determine whether or not it has
jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute. xiv[14]

Constitutional question, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in which
case it may be raised at any time or on the court's own motion. xv[15] The Court ex mero motu may
take cognizance of lack of jurisdiction at any point in the case where the fact is developed. xvi[16] The
court has a clearly recognized right to determine its own jurisdiction in any proceeding. xvii[17]

The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further
heard on this constitutional question. Correspondingly, the following resolution was issued on May 14,
1998, the material parts stating as follows:

The Court observes that the present petition, from the very allegations thereof, is "an appeal by
certiorari under Rule 45 of the Rules of Court from the 'Joint Order (Re: Motion for Reconsideration)'
issued in OMB-Adm. Case No. 0-95-0411, entitled 'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst.
Regional Director, Region IV-A, EDSA, Quezon City,' which absolved the latter from the administrative
charges for grave misconduct, among other."

It is further averred therein that the present appeal to this Court is allowed under Section 27 of the
Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued
its Rules of Procedure, Section 7 whereof is assailed by petitioner in this proceeding. It will be recalled
that R.A. No. 6770 was enacted on November 17, 1989, with Section 27 thereof pertinently providing
that all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman
may be appealed to this Court in accordance with Rule 45 of the Rules of Court.
The Court notes, however, that neither the petition nor the two comments thereon took into account or
discussed the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section
30, Article VI of the 1987 Constitution that "(n)o law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Constitution without its advise and consent."

The Court also invites the attention of the parties to its relevant ruling in First Lepanto Ceramics, Inc.
vs. The Court of Appeals , et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions
of its former Circular No. 1-95,as now substantially reproduced in Rule 43 of the 1997 revision of the
Rules of Civil Procedure.

In view of the fact that the appellate jurisdiction of the Court is invoked and involved and in this case,
and the foregoing legal consideration appear to impugn the constitutionality and validity of the grant
of said appellate jurisdiction to it, the Court deems it necessary that the parties be heard thereon and
the issue be first resolved before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to Submit their position and arguments on the
matter subject of this resolution by filing their corresponding pleadings within ten (10) days from
notice hereof.

IV

The records do not show that the Office of the Solicitor General has complied with such requirement,
hence the Court dispenses with any submission it should have presented. On the other hand,
petitioner espouses the theory that the provision in Section 27 of Republic Act No. 6770 which
authorizes an appeal by certiorari to this Court of the aforementioned adjudications of the Ombudsman
is not violative of Section 30, Article VI of the Constitution. She claims that what is proscribed is the
passage of law "increasing" the appellate jurisdiction of this Court "as provided in this Constitution,"
and such appellate jurisdiction includes "all cases in which only an error or question of law is involved."
Since Section 5(2)(e), Article VIII of the Constitution authorizes this Court to review, revise, reverse,
modify, or affirm on appeal or certiorari the aforesaid final judgement or orders "as the law or the
Rules of Court may provide," said Section 27 does not increase this Court may provide," said section 27
does not increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall
be by petition for certiorari under Rule 45, then what may be raised therein are only questions of law of
which this Court already has of which this Court already has jurisdiction.

We are not impressed by this discourse. It overlooks the fact that by jurisprudential developments
over the years, this Court has allowed appeals by certiorari under Rule 45 in a substantial number of
cases and instances even if questions of fact are directly involved and have to be resolved by the
appellate court.xviii[18] Also, the very provision cited by petitioner specifies that the appellate
jurisdiction of this Court contemplated therein is to be exercised over "final judgements and orders of
lower courts," that is, the courts composing the integrated judicial system. It does not include the
quasi-judicial bodies or agencies, hence whenever the legislature intends that the decisions or
resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of
Appeals, a specific provision to that effect is included in the law creating that quasi-judicial agency
and, for that matter, any special statutory court. No such provision on appellate procedure is required
for the regular courts of the integrated judicial system because they are what are referred to and
already provided for in Section 5, Article VIII of the Constitution.

Apropos to the foregoing, and as correctly observed by private respondent, the revised Rules of Civil
Procedurexix[19] preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for
review on certiorari under Rule 45. In the 1997 Rules of Civil Procedure, Section 1 Rule 45, on "Appeal
by Certiorari to the Supreme Court," explicitly states:

SECTION 1 . Filing of petition with Supreme Court. - A person desiring to appeal by certiorari from a
judgement or final order or Resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other court whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition shall raise only question of law which must be distinctly set forth.
(Italics ours).
This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court
of Appeals, and had to be adopted in statutes creating and providing for appeals from certain
administrative or quasi-judicial agencies, whenever the purpose was to restrict the scope of the appeal
to questions of law. That intended limitation on appellate review, as we have just discussed, was not
fully subserved by recourse to the former Rule 45 but, then, at that time there was no uniform rule on
appeals from quasi-judicial agencies.

Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only
from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from
judgments and final orders of quasi-judicial agencies xx[20] are now required to be brought to the Court
of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which
was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-
judicial agencies .xxi[21]

It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial
agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no
reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby
disregards the fact that Rule 43 even includes the Office of the President and the Civil Service
Commission, although the latter is even an independent constitutional commission, unlike the Office of
the Ombudsman which is a constitutionally-mandated but statutorily created body.

Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court
of Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable
feature. After all, factual controversies are usually involved in administrative disciplinary actions, just
like those coming from the Civil Service, Commission, and the Court of Appeals as a trier of fact is
better prepared than this Court to resolve the same. On the other hand, we cannot have this situation
covered by Rule 45 since it now applies only to appeals from the regular courts. Neither can we place
it under Rule 65 since the review therein is limited to jurisdictional questions. *

The submission that because this Court has taken cognizance of cases involving Section 27 of Republic
Act No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate
jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is
not of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we
have already discussed the cases referred to, including the inaccuracies of some statements therein,
and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of
Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial
review under Rule 65.

Private respondent invokes the rule that courts generally avoid having to decide a constitutional
question, especially when the case can be decided on other grounds. As a general proposition that is
correct. Here, however, there is an actual case susceptible of judicial determination. Also, the
constitutional question, at the instance of this Court, was raised by the proper parties, although there
was even no need for that because the Court can rule on the matter sua sponte when its appellate
jurisdiction is involved. The constitutional question was timely raised, although it could even be raised
any time likewise by reason of the jurisdictional issue confronting the Court. Finally, the resolution of
the constitutional issue here is obviously necessary for the resolution of the present case. xxii[22]

It is, however, suggested that this case could also be decided on other grounds, short of passing upon;
the constitutional question. We appreciate the ratiocination of private respondent but regret that we
must reject the same. That private respondent could be absolved of the charge because the decision
exonerating him is final and unappealable assumes that Section 7, Rule III of Administrative Order No.
07 is valid, but that is precisely one of the issues here. The prevailing rule that the Court should not
interfere with the discretion of the Ombudsman in prosecuting or dismissing a complaint is not
applicable in this administrative case, as earlier explained. That two decisions rendered by this Court
supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely under review here
because of some statements therein somewhat at odds with settled rules and the decisions of this
Court on the same issues, hence to invoke the same would be to beg the question.

*
V

Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of
Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of
the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in
Section 30, Article VI of the Constitution against a law which increases the Appellate jurisdiction of this
Court. No countervailing argument has been cogently presented to justify such disregard of the
constitutional prohibition which, as correctly explained in First Leparto Ceramics, Inc. vs. The Court of
Appeals, el al. xxiii[23] was intended to give this Court a measure of control over cases placed under its
appellate Jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the Court xxiv[24]

We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics
and some statements in Yabut and Alba, not only because of the difference in the factual settings, but
also because those isolated cryptic statements in Yabut and Alba should best be clarified in the
adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the
proper court of competent jurisdiction.

Furthermore in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770
expanded the jurisdiction of this Court without its advice and consent, private respondent's position
paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989,
the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of
what would later be Republic Act No. 6770, was approved on second reading by the House of
Representatives.xxv[25] The Senate was informed of the approval of the final version of the Act on
October 2, 1989 xxvi[26] and the same was thereafter enacted into law by President Aquino on
November 17, 1989.

Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the
procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of
Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-author
and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's
jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the
matter, thus:

INTERPELLATION OF SENATOR SHAHANI

xxx

Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the
Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the
Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution
which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara
informed that the Committee has not yet consulted the Supreme Court regarding the matter. He
agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through
petitions for review, adding that they should be appeals on certiorari.xxvii[27] There is no showing that
even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and
consent .xxviii[28]

VI

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down
as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43.

There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction
which, being substantive in nature, cannot be disregarded by this Court under its rule-making power,
especially if it results in a diminution, increase or modification of substantive rights. Obviously,
however, where the law is procedural in essence and purpose, the foregoing consideration would not
pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to
fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural.

It will be noted that no definitive line can be drawn between those rules or statutes which are
procedural, hence within the scope of this Court's rule-making power, and those which are substantive.
In fact, a particular rule may be procedural in one context and substantive in another. xxix[29] It is
admitted that what is procedural and what is substantive is frequently a question of great difficulty. xxx
[30] It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within
the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the
lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really
regulates procedure, that is, the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for a disregard or infraction of
them.xxxi[31] If the rule takes away a vested right, it is not procedural. If the rule creates a right such
as the right to appeal, it may be classified as a substantive matter; but if it operates as a means o
implementing an existing right then the rule deals merely with procedure. xxxii[32]

In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making
power, of pending cases involving a review of decisions of the Office of the Ombudsman in
administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive
appellate jurisdiction thereover, relates to procedure only. xxxiii[33] This is so because it is not the right
to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the
procedure by which the appeal is to be made or decided has been changed. The rationale for this is
that litigant has a vested right in a particular remedy, which may be changed by substitution without
impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. xxxiv
[34]

Furthermore, it cannot be said that transfer of appellate jurisdiction to the Court of Appeals in this case
is an act of creating a new right of appeal because such power of the Supreme Court to transfer
appeals to subordinate appellate courts is purely a procedural and not a substantive power. Neither
can we consider such transfer as impairing a vested right because the parties have still a remedy and
still a competent tribunal to administer that remedy.xxxv[35]

Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to
another, are procedural and remedial merely and that, as such, they are applicable to actions pending
at the time the statute went into effectxxxvi[36] or, in the case at bar, when its invalidity was declared.
Accordingly, even from the standpoint of jurisdiction ex hypothesi the validity of the transfer of appeals
in said cases to the Court of Appeals can be sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7,
Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any
other provision of law or issuance implementing the aforesaid Act and insofar as they provide for
appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court,
are hereby declared INVALID and of no further force and effect.

The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with
said petition to be considered by the Court of Appeals pro hac vice as a petition for review under Rule
43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings
and additional documents or records as it may deem necessary and proper.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez, Quisumbing, and Purisima JJ., concur.
 iEN BANC

iAttys. ROWENA V. GUANZON and PEARL R. MONTESINO of the Gender Watch Coalition, Assistant City Prosecutor
ROSANNA SARIL-TOLEDANO, Bacolod City, and Atty. ERFE DEL CASTILLO-CALDIT,

Complainants, - versus -Judge ANASTACIO C. RUFON, Regional Trial Court,

Branch 52, Bacolod City,

Respondent.

A.M. No. RTJ-07-2038

(formerly A.M. OCA IPI No. 05-2250-RTJ)

Present:

PUNO, C.J.

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR.,

NACHURA, and

REYES, JJ
 For our resolution is the February 11, 2005 letter-complaint[1] filed by complainants Atty. Rowena V. Guanzon and Atty. Pearl
R. Montesino of the Gender Watch Coalition, Assistant City Prosecutor Rosanna Saril-Toledano, Bacolod City, and Atty. Erfe del Castillo-
Caldit against respondent Judge Anastacio C. Rufon of the Regional Trial Court, Branch 52, same city, for violations of the Code of
Judicial Conduct and the Rule on Gender-Fair Language, use of foul, or obscene and discriminatory language, discrimination against
women lawyers and litigants and unethical conduct.

In his comment[2] dated January 20, 2006, respondent judge vehemently denied the charges.

On March 14, 2006, the Court referred the case to Justice Rebecca De Guia-Salvador of the Court of Appeals for
investigation, report and recommendation.

On July 13, 2006, Justice Salvador set the case for preliminary conference. Only complainant Guanzon and respondent judge
appeared. Because of the distance between Bacolod and Manila, the parties found it quite difficult and expensive to attend subsequent
hearings of the case. Respondent submitted a pre-trial brief proposing stipulation of facts. Complainant Guanzon, for herself and in
representation of complainant Montesino, filed a preliminary conference brief enumerating the charges in their complaint and the
probable witnesses and documentary evidence they intended to present in support thereof. Later, complainant Guanzon submitted an
affidavit of complainant Toledano, who was then a resident of the United States, imputing bias and abuse of authority to respondent for
granting bail in Criminal Cases Nos. 03-24800 and 03-24801. Complainant Caldit executed a letter withdrawing her complaint against
respondent.

In view of the parties failure to attend the proceedings, Justice Salvador resolved the case on the bases of the pleadings and
documents filed by the parties.

On March 5, 2007, Justice Salvador submitted her Report and Recommendation reproduced hereunder:

The Issue

WHETHER OR NOT SUFFICIENT CAUSE EXISTS TO HOLD RESPONDENT

ADMINISTRATIVELY LIABLE FOR VIOLATION OF THE CODE OF CONDUCT FOR
JUDGES AND THE RULE ON GENDER-FAIR LANGUAGE, USE OF FOUL OR
OBSCENE AND DISCRIMINATORY LANGUAGE, DISCRIMINATION AGAINST
WOMEN LAWYERS AND LITIGANTS AS WELL AS UNETHICAL CONDUCT.

Findings and Conclusions

A careful scrutiny of the record shows sufficient ground for a reprimand and an admonition to respondent to
act with utmost temperance, sensitivity and circumspection in the discharge of his functions.

xxx xxx xxx

Concededly, complainants in administrative proceedings have the burden of proving by substantial evidence
the allegations in their complaint (Araos v. Luna-Pison, 378 SCRA 246). The fact that, owing to the unavailability of
the parties, no hearings were conducted in the case to thresh out the issues presented by their various pleadings and
incidents did not, however, totally discount the existence of factual bases for the charges leveled against respondent.
In her November 8, 2006 affidavit (pp. 169-170, Rollo), Cynthia Bagtas-Serios significantly gave the following
account of respondents deportment which goes into the heart of the complaint, viz.:

xxx xxx xxx

 In one of the first hearings of my case, when Atty. Rowena Guanzon was not assisting
me but another counsel, I was shocked when Judge Anastacio Rufon, inside the court with so
many people present, said to me next time you see your husband, open your arms and legs. I
felt humiliated and insulted, and was glad that the hearing did not proceed because the respondent
was not present.

The following day, I called Atty. Rowena Guanzon and reported Judge Rufons foul
language and intolerable conduct to her (p. 170, ibid.).

xxx xxx xxx

Respondent had, of course, taken great pains to refute the foregoing allegations (pp. 215-219, ibid.),
complete with transcript of stenographic notes taken in Civil Case No. 99-10985 (pp. 220-240, ibid.) as well as the
orders issued in the case (pp. 241-243, ibid.). In denying the charges leveled against him, however, appropriate note
may be taken of the fact that respondents January 20, 2006 comment admitted his use of frank language in court
when exhorting litigants to settle their differences and his resort to strong and colorful words whenever he has had a
drink or two, albeit after office hours (pp. 81-82, ibid.). Even more significantly, the July 12, 2006 letter of
complainant Caldit which was attached as Annex 4 to respondents own Pre-Trial Brief contains the following tell-
tale assertions, viz.:

xxx xxx xxx

Respondent should bear in mind that a judge holds a position in the community that is looked up to with
honor and privilege (Ramos v. Barot 420 SCRA 406). Although judges are subject to human limitations (Misajon v.
Feranil, 440 SCRA 298), it cannot be over-emphasized that no position is more demanding as regards moral
righteousness and uprightness of any individual than a seat on the Bench (Resngit-Marquez v. Llamas, Jr., 385 SCRA
6). Because a judge is always looked upon as being the visible representation of law and, from him, the people draw
much of their will and awareness to obey legal mandates (Garcia v. Bueser, 425 SCRA 93), it has been rightfully ruled
that moral integrity is more than a cardinal virtue in the judiciary; it is a necessity (Office of the Court Administrator
v. Sayo, Jr., 381 SCRA 659).

In closing, it would be remiss not to remind respondent of the fact that all judges should always observe
courtesy and civility (Fineza v. Aruelo, 385 SCRA 339) and also be temperate, patient and courteous both in conduct
and language (Fidel v. Caraos, 394 SCRA 47), especially to those appearing before him (Lastimosa-Dalawampu v.
Yrastorsa, Sr. 422 SCRA 26). The exacting standards of conduct demanded from judges are designed to promote
public confidence in the integrity and impartiality of the judiciary (Imbang v. Del Rosario, 421 SCRA 523). In view
of the fact that public confidence in the judiciary is very easily eroded by irresponsible and improper conduct of
judges (Navarro v. Tormis, 428 SCRA 37), respondent should remember to avoid improprieties and the appearance of
impropriety in all of his activities (Veloso v. Caminade, 434 SCRA 7).

Recommendation

WHEREFORE, premises considered, the REPRIMAND of respondent is recommended alongside a stern

admonition that he should, henceforth, take care to act with utmost temperance, sensitivity and circumspection in the
discharge of his functions.

We sustain the finding of Justice Salvador that respondent judge uttered in open court intemperate and obscene language
injurious to the sensitivity and feelings of complainants who are all women.

Judicial decorum requires a magistrate to be at all times temperate in his language,[3] refraining from inflammatory or
excessive rhetoric or from resorting to language of vilification.[4] It is very essential that they live up to the high standards demanded
by Section 6, Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary[5] which provides:

SEC. 6. Judges shall maintain order and decorum in all proceedings before the court and be patient,
dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in an official
 capacity. x x x

In Fidel v. Caraos,[6] we held that although respondent judge may attribute his intemperate language to human frailty, his noble
position in the bench nevertheless demands from him courteous speech in and out of the court. Judges are demanded to be always
temperate, patient and courteous both in conduct and in language.[7]

Thus, we declare respondent judge guilty of vulgar and unbecoming conduct considered a light charge under Section 10(1),
Rule 140 of the Revised Rules of Court, punishable under Section 11(C) of the same Rule, by:

1. A fine of not less than P1,000.00, but not exceeding P10,000.00 and/or

2. Censure

3. Reprimand

4. Admonition with warning

ACCORDINGLY, respondent Judge Anastacio C. Rufon is found guilty of vulgar and unbecoming conduct and is FINED in
the amount of P5,000.00, with a warning that a repetition of a similar offense in the future shall be dealt with more severely.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

B.M. No. 44 February 24, 1992

EUFROSINA Y. TAN, complainant,

vs.
NICOLAS EL. SABANDAL, respondent.

SBC No. 609 February 24, 1992

MOISES B. BOQUIA, complainant,

vs.
NICOLAS EL. SABANDAL, respondent.

SBC No. 616 February 24, 1992

HERVE DAGPIN, complainant,

vs.
NICOLAS EL. SABANDAL, respondent.
Nelbert T. Paculan for respondent.

Moises B. Boquia for himself and Herve Dagpin.

RESOLUTION

MELENCIO-HERRERA, J.:

On 29 November 1983, * this Court sustained the charge of unauthorized practice of law filed against
respondent Sabandal and accordingly denied the latter's petition to be allowed to take the oath as member of
the Philippine Bar and to sign the Roll of Attorneys.

From 1984-1988, Sabandal filed Motions for Reconsideration of the aforesaid Resolution, all of which were
either denied or "Noted without action." The Court, however, on 10 February 1989, after considering his plea
for mercy and forgiveness, his willingness to reform and the several testimonials attesting to his good moral
character and civic consciousness, reconsidered its earlier Resolution and finally allowed him to take the
lawyer's oath "with the Court binding him to his assurance that he shall strictly abide by and adhere to the
language, meaning and spirit of the Lawyer's Oath and the highest standards of the legal profession" (Yap Tan
v. Sabandal, 10 February 1989, 170 SCRA 211).

However, before a date could be set for Sabandal's oath-taking, complainants Tan, Dagpin and Boquia each
filed separate motions for reconsideration of the Resolution of 10 February 1989. These were acted upon in
the Resolution of 4 July 1989 hereunder quoted, in part, for ready reference:

On 7 April 1989, Complainant Herve Dagpin in SBC No. 616, and Complainant Moises Boquia
in SBC No. 609 also filed a Motion for Reconsideration of our Resolution allowing respondent
to take his oath. They alleged that respondent had deliberately and maliciously excluded
them in his Petition of 28 June 1988. That, of course, is without merit considering that in his
Petition of 28 June 1988, respondent had discussed said cases quite lengthily.

On 27 April 1989, Complainant Tan also manifested that Complainant Benjamin Cabigon in BM
No. 59 and Complainant Cornelio Agnis in SBC No. 624, had passed away so that they are in
no position to submit their respective Comments.

One of the considerations we had taken into account in allowing respondent to take his oath,
was a testimonial from the IBP Zamboanga del Norte Chapter, dated 29 December 1986,
certifying that respondent was "acting with morality and has been careful in his actuations in
the community."

Complainant Tan maintains that said IBP testimonial was signed only by the then President of
the IBP, Zamboanga del Norte Chapter, Atty. Senen O. Angeles, without authorization from the
Board of Officers of said Chapter; and that Atty. Angeles was respondent's own counsel as
well as the lawyer of respondent's parents-in-law in CAR Case No. 347, Ozamiz City. Attached
to Complainant's Motion for Reconsideration was a Certification, dated 24 February 1989,
signed by the IBP Zamboanga del Norte Chapter President, Atty. Norberto L. Nuevas, stating
that "the present Board of Officers with the undersigned as President had not issued any
testimonial attesting to the good moral character and civic consciousness of Mr. Nicolas
Sabandal."

In his Comment, received by the Court on 27 March 1989, respondent states that the IBP
testimonial referred to by Complainant Tan must have been that signed by the former IBP
Zamboanga del Norte Chapter President, Atty. Senen O. Angeles, addressed to the Chief
Justice, dated 29 December 1986, and that he himself had not submitted to the Court any
certification from the IBP Zamboanga del Norte Chapter Board of Officers of 1988-1989.
 Under the circumstances, the Court has deemed it best to require the present Board of
Officers of the IBP, Zamboanga del Norte Chapter, to MANIFEST whether or not it is willing to
give a testimonial certifying to respondent's good moral character as to entitle him to take
the lawyer's oath, and if not, the reason therefor. The Executive Judge of the Regional Trial
Court of Zamboanga del Norte is likewise required to submit a COMMENT on respondent's
moral fitness to be a member of the Bar.

Compliance herewith is required within ten (10) days from notice.

Pursuant to the aforesaid Resolution, Judge Pelagio R. Lachica, Executive Judge of the Regional Trial Court of
Zamboanga del Norte, filed his Comment, dated 4 August 1989, and received on 25 August 1989, pertinently
reading:

The undersigned, who is not well acquainted personally with the respondent, is not aware of
any acts committed by him as would disqualify him from admission to the Bar. It might be
relevant to mention, however, that there is Civil Case No. 3747 entitled Republic of the
Philippines, Represented by the Director of Lands, Plaintiff, versus Nicolas Sabandal, Register
of Deeds of Zamboanga del Norte and Rural Bank of Pinan, (Zamboanga del Norte), Inc., for
Cancellation of Title and/or Reversion pending in this Court in which said respondent, per
complaint filed by the Office of the Solicitor General, is alleged to have secured a free patent
and later a certificate of title to a parcel of land which, upon investigation, turned out to be a
swampland and not susceptible of acquisition under a free patent, and which he later
mortgaged to the Rural Bank of Pinan (ZN) Inc. The mortgage was later foreclosed and the
land sold at public auction and respondent has not redeemed the land until the present.
(Emphasis Supplied)

The IBP Zamboanga del Norte Chapter also submitted a Certification, dated 2 February 1990, signed by its
Secretary Peter Y. Co and attested to by its President Gil L. Batula, to wit:

This is to certify that based on the certifications issued by the Office of the Clerk of Court
Municipal Trial Court in the City of Dipolog; Regional Trial Court of Zamboanga del Norte and
the Office of the Provincial and City Prosecutors, Mr. Nicolas E. Sabandal has not been
convicted of any crime, nor is there any pending derogatory criminal case against him. Based
on the above findings, the Board does not find any acts committed by the petitioner to
disqualify him from admission to the Philippine Bar.

We required the complainants to comment on the aforesaid IBP Certification and to reply to Executive Judge
Pelagio Lachica's comment in our Resolution of 15 February 1990.

On 17 April 1990, after taking note of the unrelenting vehement objections of complainants Tan (in BM 44)
and Boquia (in SBC 616) and the Certification by Executive Judge Lachica, dated 4 August 1989, that there is
a pending case before his Court involving respondent Sabandal, this Court resolved to DEFER the setting of a
date for the oath-taking of respondent Sabandal and required Judge Lachica to inform this Court of the
outcome of the case entitled Republic v. Sabandal, (Civil Case 3747), pending before his "Sala" as soon as
resolved.

In the meantime, on 18 April 1990, the Court received another Comment, dated 13 March 1990, by
complainant Herve Dagpin in SBC 609, vehemently objecting to the oath-taking of respondent Sabandal and
describing his actuations in Civil Case 3747 as manipulative and surreptitious. This comment was Noted in
the Resolution of 22 May 1990.

In a letter, addressed to the Chief Justice, dated 15 August 1990, complainant Tan in Bar Matter 44, informed
the Court that her relationship with Sabandal has "already been restored," as he had asked forgiveness for
what has been done to her and that she finds no necessity in pursuing her case against him. Complainant Tan
further stated that she sees no further reason to oppose his admission to the Bar as he had shown sincere
repentance and reformation which she believes make him morally fit to become a member of the Philippine
Bar. "In view of this development," the letter stated, "we highly recommend him for admission to the legal
profession and request this Honorable Court to schedule his oath-taking at a time most convenient." This
letter was Noted in the Resolution of 2 October 1990, which also required a comment on Tan's letter from
complainants Boquia and Dagpin.
Moises Boquia, for himself, and complainant Dagpin, in their comment, dated 5 November 1990, stated thus:

Eufrosina Yap Tan's letter dated 15 August 1990 is a private personal disposition which raises
the question whether personal forgiveness is enough basis to exculpate and obliterate these
cases. On our part, we believe and maintain the importance and finality of the Honorable
Supreme Court's resolutions in these cases. . . .

It is not within the personal competence, jurisdiction and discretion of any party to change or
amend said final resolutions which are already res judicata. Viewed in the light of the
foregoing final and executory resolutions, these cases therefore should not in the least be
considered as anything which is subject and subservient to the changing moods and
dispositions of the parties, devoid of any permanency or finality. Respondent's scheming
change in tactics and strategy could not improve his case.

The above was "Noted" in the Resolution of 29 November 1990.

In compliance with the Resolution of 2 October 1990, Judge Pacifico M. Garcia, Regional Trial Court Judge of
Branch 8, Dipolog City (who apparently succeeded Judge Pelagio Lachica, the latter having availed of optional
retirement on 30 June 1990) submitted to this Court, on 17 December 1990, a copy of the "Judgment," dated
12 December 1990, in Civil Case 3747, entitled "Republic of the Philippines v. Nicolas Sabandal et al" for
Cancellation of Title and/or Reversion, which, according to him, was already considered closed and
terminated.

Said judgment reveals that an amicable settlement, dated 24 October 1990, had been reached between the
principal parties, approved by the Trial Court, and conformed to by the counsel for defendant Rural Bank of
Pinan.

Briefly, the said amicable settlement cancelled the Original Certificate of Title under Free Patent in Sabandal's
name and the latter's mortgage thereof in favor of the Rural Bank of Pinan; provided for the surrender of the
certificate of title to the Register of Deeds for proper annotation; reverted to the mass of public domain the
land covered by the aforesaid Certificate of' Title with defendant Sabandal refraining from exercising acts of
possession or ownership over said land; caused the defendant Sabandal to pay defendant Rural Bank of Pinan
the sum of P35,000 for the loan and interest; and the Rural Bank of Pinan to waive its cross-claims against
defendant Nicolas Sabandal.

Judge Pacifico Garcia's letter and the afore-mentioned Judgment were NOTED in our Resolution of 29 January
1991. In the same Resolution, complainants Tan, Boquia and Dagpin were required to comment on the same.

Upon request of Sabandal, a certification, dated 20 December 1990, was sent by Executive judge Jesus
Angeles of the RTC of Zamboanga del Norte, certifying that Sabandal has no pending case with his Court and
that he has no cause to object to his admission to the Philippine Bar. This was "Noted" in the Resolution of 26
February 1991.

Meanwhile, Sabandal reiterated his prayer to be allowed to take the lawyer's oath in a Motion dated 8 June
1991. In our Resolution of 1 August 1991, we deferred action on the aforesaid Motion pending compliance by
the complainants with the Resolution of 29 January 1991 requiring them to comment on the letter of Judge
Pacifico M. Garcia.

To date, only complainant Tan has complied with the said Resolution by submitting a Comment, dated 29
August 1991, stating that the termination of Civil Case No. 3747 is "proof of Sabandal's sincere reformation,
of his repentance with restitution of the rights of complainants he violated," and that "there is no more reason
to oppose his admission to the Bar." This was "Noted" in the Resolution of 24 September 1991.

In a Manifestation, dated 6 December 1991, Sabandal reiterates his plea to be allowed to take the Lawyer's
Oath.

His plea must be DENIED.

In our Resolution of 10 February 1989, Sabandal was allowed to take the oath, ten (10) years having elapsed
from the time he took and passed the 1976 Bar examinations, after careful consideration of his show of
contrition and willingness to reform. Also taken cognizance of were the several testimonials attesting to his
good moral character and civic consciousness. At that time, we had not received the objections from
complainant Tan to Sabandal's taking the oath nor were we aware of the gravity of the civil case against him.

It turns out that Civil Case No. 3747 entitled "Republic of the Philippines v. Nicolas Sabandal" was instituted
by the Government in 1985 and was brought about because of respondent's procurement of a certificate of
free patent over a parcel of land belonging to the public domain and its use as security for a mortgage in
order to obtain a loan. At that time, Sabandal was an employee of the Bureau of Lands. He did not submit any
defense and was declared it default by order of the RTC dated 26 November 1986. The controversy was
eventually settled by mere compromise with respondent surrendering the bogus certificate of title to the
government and paying-off the mortgagor, "to buy peace and forestall further expenses of litigation incurred
by defendants" (Rollo, Judgment in Civil Case No. 3747). The Office of the Solicitor General interposed no
objection to the approval of the said amicable settlement and prayed that judgment be rendered in
accordance therewith, "as the amicable settlement may amount to a confession by the defendant" (Rollo,
supra). It must also be stressed that in 1985, at the time said case was instituted, Sabandal's petition to take
the lawyer's oath had already been denied on 29 November 1983 and he was then submitting to this Court
motions for reconsideration alleging his good moral character without, however, mentioning the pendency of
that civil case against him.

In view of the nature of that case and the circumstances attending its termination, the Court now entertains
second thoughts about respondent's fitness to become a member of the Bar.

It should be recalled that Sabandal worked as Land Investigator at the Bureau of Lands. Said employment
facilitated his procurement of the free patent title over property which he could not but have known was
public land. This was manipulative on his part and does not speak well of his moral character. It is a
manifestation of gross dishonesty while in the public service, which can not be erased by the termination of
the case filed by the Republic against him where no determination of his guilt or innocence was made
because the suit had been compromised. Although as the Solicitor General had pointed out, the amicable
settlement was tantamount to a confession on his part. What is more, he could not but have known of the
intrinsic invalidity of his title and yet he took advantage of it by securing a bank loan, mortgaging it as
collateral, and notwithstanding the foreclosure of the mortgage and the sale of the land at public auction, he
did not lift a finger to redeem the same until the civil case filed against him was eventually compromised.
This is a sad reflection on his sense of honor and fair dealing. His failure to reveal to this Court the pendency
of the civil case for Reversion filed against him during the period that he was submitting several Motions for
Reconsideration before us also reveal his lack of candor and truthfulness.

There are testimonials attesting to his good moral character, yes. But these were confined to lack of
knowledge of the pendency of any criminal case against him and were obviously made without awareness of
the facts and circumstances surrounding the case instituted by the Government against him. Those
testimonials can not, therefore, outweigh nor smother his acts of dishonesty and lack of good moral
character.

That the other complainants, namely, Moises Boquia (in SBC 606) and Herve Dagpin (in SBC 619) have not
submitted any opposition to his motion to take the oath, is of no moment. They have already expressed their
objections in their earlier comments. That complainant Tan has withdrawn her objection to his taking the oath
can neither tilt the balance in his favor, the basis of her complaint treating as it does of another subject
matter.

Time and again, it has been held that the practice of law is not a matter of right. It is a privilege bestowed
upon individuals who are not only learned in the law but who are also known to possess good moral
character:

The Supreme Court and the Philippine Bar have always tried to maintain a high standard for
the legal profession, both in academic preparation and legal training as well as in honesty and
fair dealing. The Court and the licensed lawyers themselves are vitally interested in keeping
this high standard; and one of the ways of achieving this end is to admit to the practice of this
noble profession only those persons who are known to be honest and to possess good moral
character. . . . (In re Parazo, 82 Phil. 230).
Although the term "good moral character" admits of broad dimensions, it has been defined as "including at
least common honesty" (Royong v. Oblena, Adm. Case No. 376, April 30, 1963, 7 SCRA 859; In re Del Rosario,
52 Phil. 399 [1928]). It has also been held that no moral qualification for bar membership is more important
than truthfulness or candor (Fellner v. Bar Association of Baltimore City, 131 A. 2d 729).

WHEREFORE, finding respondent Sabandal to be unfit to become a member of the BAR, this Court's
Resolution, dated 10 February 1989 is RECALLED and his prayer to be allowed to take the lawyer's oath is
hereby denied.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide,
Jr., Romero and Nocon, JJ., concur.

Footnotes

* In Bar Matter No. 44 (Eufrosina Yap Tan and Nicolas El. Sabandal) Bar Matter No. 59
(Benjamin Cabigon v. Nicolas El Sabandal) & SBC 624 (Cornelio Agnis and Diomedes Agnis v.
Nicolas El. Sabandal) [126 SCRA 60].

x-------------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

ii

iii

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,

vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at
which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the House of
Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the election." 2 The mischief which this provision
reproduced verbatim from the 1973 Constitution seeks to prevent is the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a community and not identified with the latter,
from an elective office to serve that community." 3

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

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING

THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District
of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5 with
the Commission on Elections alleging that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year
residency requirement for candidates for the House of Representatives on the evidence of declarations made
by her in Voter Registration Record 94-No. 3349772 6 and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7

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

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the
ground that it is filed out of time, the deadline for the filing of the same having already lapsed
on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed
on or before the March 20, 1995 deadline. 9

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

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

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

Respondent raised the affirmative defense in her Answer that the printed word "Seven"
(months) was a result of an "honest misinterpretation or honest mistake" on her part and,
therefore, an amendment should subsequently be allowed. She averred that she thought that
what was asked was her "actual and physical" presence in Tolosa and not residence of origin
or domicile in the First Legislative District, to which she could have responded "since
childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a
component of the First District, to which she always intended to return whenever absent and
which she has never abandoned. Furthermore, in her memorandum, she tried to discredit
petitioner's theory of disqualification by alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although she only became a resident of the
Municipality of Tolosa for seven months. She asserts that she has always been a resident of
Tacloban City, a component of the First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent
announced that she would be registering in Tacloban City so that she can be a candidate for
the District. However, this intention was rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake."

Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her
Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City,
it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation
that she thought what was asked was her actual and physical presence in Tolosa is not easy
to believe because there is none in the question that insinuates about Tolosa. In fact, item no.
8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I
seek to be elected immediately preceding the election." Thus, the explanation of respondent
fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation,

therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the
case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is
misplaced. The case only applies to the "inconsequential deviations which cannot affect the
result of the election, or deviations from provisions intended primarily to secure timely and
orderly conduct of elections." The Supreme Court in that case considered the amendment
only as a matter of form. But in the instant case, the amendment cannot be considered as a
matter of form or an inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a substantial matter which
determines her qualification as a candidacy, specially those intended to suppress, accurate
material representation in the original certificate which adversely affects the filer. To admit
the amended certificate is to condone the evils brought by the shifting minds of manipulating
candidate, of the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of her residency in order
to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be
committed before this Commission. The arithmetical accuracy of the 7 months residency the
respondent indicated in her certificate of candidacy can be gleaned from her entry in her
Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a
resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A,
Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan,
Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot,
Tolosa, Leyte. The dates of these three (3) different documents show the respondent's
consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro
Manila only for such limited period of time, starting in the last week of August 1994 which on
March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be
persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

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

by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has
not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with
"domicile" which imports not only the intention to reside in a fixed place but also personal
presence in-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. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-
Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991,
the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since
childhood is nothing more than to give her a color of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the
respondent in her affidavit. Except for the time that she studied and worked for some years
after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband
was elected Senator, she lived and resided in San Juan, Metro Manila where she was a
registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered
voter. In 1978, she served as member of the Batasang Pambansa as the representative of the
City of Manila and later on served as the Governor of Metro Manila. She could not have served
these positions if she had not been a resident of the City of Manila. Furthermore, when she
filed her certificate of candidacy for the office of the President in 1992, she claimed to be a
resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote
a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of
her registration in the permanent list of voters that she may be re-registered or transferred to
Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of
Tacloban City since childhood up to the time she filed her certificate of candidacy because she
became a resident of many places, including Metro Manila. This debunks her claim that prior
to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte
since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile.
She registered as a voter in different places and on several occasions declared that she was a
resident of Manila. Although she spent her school days in Tacloban, she is considered to have
abandoned such place when she chose to stay and reside in other different places. In the
case of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new
domicile by choice. There must concur: (1) residence or bodily presence in the new locality;
 (2) intention to remain there; and (3) intention to abandon the old domicile. In other words
there must basically be animus manendi with animus non revertendi. When respondent chose
to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering
as a voter there and expressly declaring that she is a resident of that place, she is deemed to
have abandoned Tacloban City, where she spent her childhood and school days, as her place
of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct
indicative of such intention. Respondent's statements to the effect that she has always
intended to return to Tacloban, without the accompanying conduct to prove that intention, is
not conclusive of her choice of residence. Respondent has not presented any evidence to
show that her conduct, one year prior the election, showed intention to reside in Tacloban.
Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of
Manila.

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

To further support the assertion that she could have not been a resident of the First District of
Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she
placed in her Voter Registration Record that she resided in the municipality of Tolosa for a
period of six months. This may be inconsequential as argued by the respondent since it refers
only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the
First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof
that she had been a resident of the district for six months only. 15

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

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it,
no new substantial matters having been raised therein to warrant re-examination of the
resolution granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of
the canvass show that she obtained the highest number of votes in the congressional elections in the First
District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution
directing that the proclamation of petitioner be suspended in the event that she obtains the highest number
of votes. 19

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

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

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

I. The issue of Petitioner's qualifications

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

a) Prior to the elections

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

b) After the Elections

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

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application
of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in
agreement with the general proposition that for the purposes of election law, residence is synonymous with
domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual
residence, a conception not intended for the purpose of determining a candidate's qualifications for election
to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose
of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.

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

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

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

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

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports
not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental.
Faypon vs. Quirino, 27 held that the absence from residence to pursue studies or practice a profession or
registration as a voter other than in the place where one is elected does not constitute loss of residence. 28 So
settled is the concept (of domicile) in our election law that in these and other election law cases, this Court
has stated that the mere absence of an individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile.

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

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

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, "and a resident thereof",
that is, in the district for a period of not less than one year preceding the day of the election.
This was in effect lifted from the 1973 Constitution, the interpretation given to it was
domicile. 29

xxx xxx xxx

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

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to
actual residence rather than mere intention to reside?

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

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

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency
requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned
entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as
seven (7) months?

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

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven"
in the space provided for the residency qualification requirement. The circumstances leading to her filing the
questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was
"since childhood" in the space provided. These circumstances and events are amply detailed in the
COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when
herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the
First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa,
not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is
Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed
immediately by the entry for residence in the constituency where a candidate seeks election thus:

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

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

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

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

Having been forced by private respondent to register in her place of actual residence in Leyte instead of
petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal
residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence
and the second requiring domicile coupled with the circumstances surrounding petitioner's registration as a
voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This
honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact
were established by means more convincing than a mere entry on a piece of paper.

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

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the
Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the
time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously
lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's
domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First,
according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also
registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in
San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang
Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a
resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and
maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a
given place for various purposes. The absence from legal residence or domicile to pursue a profession, to
study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence.
Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she became a resident of many
places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between
(actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:

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

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

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study in other places, practice of his avocation,
or engaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may desire to return to his native town to cast his ballot but for professional or
business reasons, or for any other reason, he may not absent himself from his professional or
business activities; so there he registers himself as voter as he has the qualifications to be
one and is not willing to give up or lose the opportunity to choose the officials who are to run
 the government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not forsaken him. This may
be the explanation why the registration of a voter in a place other than his residence of origin
has not been deemed sufficient to constitute abandonment or loss of such residence. It finds
justification in the natural desire and longing of every person to return to his place of birth.
This strong feeling of attachment to the place of one's birth must be overcome by positive
proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that
petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC
was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not
only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus Election Code (B.P. 881). 35

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

In or about 1938 when respondent was a little over 8 years old, she established her domicile
in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from
1938 to 1949 when she graduated from high school. She pursued her college studies in St.
Paul's College, now Divine Word University in Tacloban, where she earned her degree in
Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952
she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office
in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when
he was still a congressman of Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived together in San Juan,
Rizal where she registered as a voter. In 1965, when her husband was elected President of the
Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter
in San Miguel, Manila.

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

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

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

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is
gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile
of origin by operation of law. This domicile was not established only when her father brought his family back
to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate: 37

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

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

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed
to continue. Only with evidence showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires an actual and deliberate
abandonment, and one cannot have two legal residences at the same time. 38 In the case at bench, the
evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this
court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an
abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to
supplant the former domicile with one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife
automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the
use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two
concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms
imply relations between a person and a place; but in residence, the relation is one of fact
while in domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

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

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

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

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

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means
wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only
actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same
provision which means, "when the husband shall transfer his residence," referring to another positive act of
relocating the family to another home or place of actual residence. The article obviously cannot be
understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not
only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with
the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen
and unify the family, recognizing the fact that the husband and the wife bring into the marriage different
domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the
husband to fix a single place of actual residence.

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

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

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

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

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a
place. A person can have two or more residences, such as a country residence and a city
residence. Residence is acquired by living in place; on the other hand, domicile can exist
without actually living in the place. The important thing for domicile is that, once residence
has been established in one place, there be an intention to stay there permanently, even if
residence is also established in some other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not
an iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence,
our jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with
each other such that the wife is either allowed to maintain a residence different from that of her husband or,
for obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one).
In De la Vina vs. Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the marriage where the husband has given cause
for divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new
domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately
from her husband either by taking new residence or reverting to her domicile of origin, the Court has held
that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de
Arroyo 45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the
courts of this country to attempt to compel one of the spouses to cohabit with, and render
conjugal rights to, the other. Of course where the property rights of one of the pair are
invaded, an action for restitution of such rights can be maintained. But we are disinclined to
sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered
to compel the restitution of the purely personal right of consortium. At best such an order can
be effective for no other purpose than to compel the spouses to live under the same roof; and
he experience of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of either husband or wife; and if the facts were
 found to warrant it, that court would make a mandatory decree, enforceable by process of
contempt in case of disobedience, requiring the delinquent party to live with the other and
render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt
bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James
Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice,
expressed his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree for the
restitution of conjugal rights in England, could be obtained by the injured spouse, but could
not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against
the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment;
though a decree for the restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.

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

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

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

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as
a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family
Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the
term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly
different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes
in the concept of women's rights in the intervening years by making the choice of domicile a product of
mutual agreement between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil
Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-
affecting the rights and obligations of husband and wife the term residence should only be interpreted to
mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and
merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only
acquired a right to choose a new one after her husband died, petitioner's acts following her return to the
country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this
was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in
Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters
to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in
various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover,
and proceeding from our discussion pointing out specific situations where the female spouse either reverts to
her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical
for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive
act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife
gains a domicile different from her husband.

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

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed
resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78
of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives
Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally
construed to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on
the theory that if the statute had intended such result it would have clearly indicated it." 50 The difference
between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same
view held by several American authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds
of expediency, the reason being that less injury results to the general public by disregarding
than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a

limitation of thirty (30) days within which a decree may be entered without the consent of
counsel, it was held that "the statutory provisions which may be thus departed from with
impunity, without affecting the validity of statutory proceedings, are usually those which
relate to the mode or time of doing that which is essential to effect the aim and purpose of
the Legislature or some incident of the essential act." Thus, in said case, the statute under
examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision
after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our
courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having
failed to reach a decision within a given or prescribed period.

52
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is
evident that the respondent Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole
judge of all contests relating to the elections, returns and qualifications of members of Congress begins only
after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of
the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or
deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously
a distinction was made on such a ground here. Surely, many established principles of law, even of election
laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred
ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law
to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to
repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a
seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions
dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby
directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative
of the First District of Leyte.

SO ORDERED.

Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their unalikeness. 1 Like other candidates, petitioner has
clearly met the residence requirement provided by Section 6, Article VI of the Constitution. 2 We cannot
disqualify her and treat her unalike, for the Constitution guarantees equal protection of the law. I proceed
from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled
in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to
school and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and
her domicile of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and
her domicile of choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became subject to change by law, and the right to change it
was given by Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic. 3
(Emphasis supplied)

In De la Via v. Villareal and Geopano, 4 this Court explained why the domicile of the wife ought to
follow that of the husband. We held: "The reason is founded upon the theoretic identity of person and
interest between the husband and the wife, and the presumption that, from the nature of the relation,
the home of one is the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony prevail." 5 In accord with this
objective, Article 109 of the Civil Code also obligated the husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos
ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone
did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the
right to fix the domicile of the family. In the exercise of the right, the husband may explicitly choose the prior
domicile of his wife, in which case, the wife's domicile remains unchanged. The husband can also implicitly
acquiesce to his wife's prior domicile even if it is different. So we held in de la Via, 6

. . . . When married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they
have their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the
husband that will change the domicile of a wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the exercise of the right conferred by Article 110 of the
Civil Code binds the wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the husband. These
acts are void not only because the wife lacks the capacity to choose her domicile but also because
they are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At that particular
point of time and throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since
petitioner's Batac domicile has been fixed by operation of law, it was not affected in 1959 when her husband
was elected as Senator, when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and when
she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the
Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of
her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence shows he did not effect any such change. To a
large degree, this follows the common law that "a woman on her marriage loses her own domicile and by
operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes
or intends." 7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice
Davide, Jr., heavily relying on American authorities. 8 He echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of the husband and denied to her the power of acquiring
a domicile of her own separate and apart from him. 9 Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is derived from the view
that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband." 10 The second reason lies
in "the desirability of having the interests of each member of the family unit governed by the same law." 11
The presumption that the wife retains the domicile of her deceased husband is an extension of this common
law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell v. Illinois 12 was decided where
women were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity
and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . .
This is the law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS 13 and AM JUR 2d 14
are American state court decisions handed down between the years 1917 15 and 1938, 16 or before the time
when women were accorded equality of rights with men. Undeniably, the women's liberation movement
resulted in far-ranging state legislations in the United States to eliminate gender inequality. 17 Starting in the
decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected
with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed, 18 struck a big blow for women
equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family
members over females as estate administrators. It held that mere administrative inconvenience cannot justify
a sex-based distinction. These significant changes both in law and in case law on the status of women
virtually obliterated the iniquitous common law surrendering the rights of married women to their husbands
based on the dubious theory of the parties' theoretic oneness. The Corpus Juris Secundum editors did not
miss the relevance of this revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the common law theory of
marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to the
law." 19 In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable
American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the
result of statutes and court decisions, a wife now possesses practically the same rights and powers as her
unmarried sister." 20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common
law that demeans women, especially married women. I submit that the Court has no choice except to break
away from this common law rule, the root of the many degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the wife cannot accept gifts from others, regardless of
the sex of the giver or the value of the gift, other than from her very close relatives, without
her husband's consent. She may accept only from, say, her parents, parents-in-law, brothers,
sisters and the relatives within the so-called fourth civil degree. She may not exercise her
profession or occupation or engage in business if her husband objects on serious grounds or if
his income is sufficient to support their family in accordance with their social standing. As to
what constitutes "serious grounds" for objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being
proposed by the University of the Philippines Law Center would allow absolute divorce which
severes the matrimonial ties, such that the divorced spouses are free to get married a year
after the divorce is decreed by the courts. However, in order to place the husband and wife on
an equal footing insofar as the bases for divorce are concerned, the following are specified as
the grounds for absolute divorce: (1) adultery or having a paramour committed by the
respondent in any of the ways specified in the Revised Penal Code or (2) an attempt by the
respondent against the life of the petitioner which amounts to attempted parricide under the
Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause
for a period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically the administrator of the
conjugal property owned in common by the married couple even if the wife may be the more
astute or enterprising partner. The law does not leave it to the spouses to decide who shall
act as such administrator. Consequently, the husband is authorized to engage in acts and
enter into transactions beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.

And while both exercise joint parental authority over their children, it is the father whom the
law designates as the legal administrator of the property pertaining to the unemancipated
child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate
inequality between men and women in our land. The watershed came on August 3, 1988 when our
Family Code took effect which, among others, terminated the unequal treatment of husband and wife
as to their rights and responsibilities. 22
The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-
based privileges of husbands. Among others, married women are now given the joint right to administer the
family property, whether in the absolute community system or in the system of conjugal partnership; 23 joint
parental authority over their minor children, both over their persons as well as their properties; 24 joint
responsibility for the support of the family; 25 the right to jointly manage the household; 26 and, the right to
object to their husband's exercise of profession, occupation, business or activity. 27 Of particular relevance to
the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix
the family domicile and gave it jointly to the husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of the family. (Emphasis
supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to
live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances
when a wife may now refuse to live with her husband, thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain
cases like:

(a) If the place chosen by the husband as family residence is dangerous to her
Life;

(b) If the husband subjects her to maltreatment or abusive conduct or insults,

making common life impossible;

(c) If the husband compels her to live with his parents, but she cannot get
along with her mother-in-law and they have constant quarrels (Del Rosario v.
Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as a tramp
(1 Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn v. Darby,

38 La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated the wife from the
control of the husband, thus abandoning the parties' theoretic identity of interest. No less than the
late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law
Center gave this insightful view in one of his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate the wife
from the exclusive control of the husband and to place her at parity with him insofar as the
family is concerned. The wife and the husband are now placed on equal standing by the
 Code. They are now joint administrators of the family properties and exercise joint authority
over the persons and properties of their children. This means a dual authority in the family.
The husband will no longer prevail over the wife but she has to agree on all matters
concerning the family. (Emphasis supplied)

In light of the Family Code which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife
still retains the domicile of her dead husband. Article 110 of the Civil Code which provides the
statutory support for this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further effect in any way or
manner such as by ruling that the petitioner is still bound by the domiciliary determination of her
dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of
due process and equal protection of
law. 30 It can hardly be doubted that the common law imposition on a married woman of her dead husband's
domicile even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and
is not rationally related to the objective of promoting family solidarity. It cannot survive a constitutional
challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure fundamental equality
before the law of women and men." To be exact, section 14, Article II provides: "The State recognizes the role
of women in nation building, and shall ensure fundamental equality before the law of women and men. We
shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women
the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner
reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence
of the view that petitioner's Batac dictated domicile did not continue after her husband's death; otherwise,
she would have no domicile and that will violate the universal rule that no person can be without a domicile
at any point of time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by the
Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her
Tacloban domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not
through her act but through the act of her deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile
has been repealed. Considering all these, common law should not put the burden on petitioner to prove she
has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the
respondent COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests for my
return were denied by President Corazon C. Aquino, and after I filed suits for our Government
to issue me my passport.

37. But I came home without the mortal remains of my beloved husband, President Ferdinand
E. Marcos, which the Government considered a threat to the national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or
in Olot, Tolosa, Leyte, even if my residences there were not livable as they had been
destroyed and cannibalized. The PCGG, however, did not permit and allow me.

39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay
City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter
rented, and Pacific Plaza, all in Makati.
 40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in
San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and All Souls' Day
that year, I renovated my parents' burial grounds and entombed their bones
which had been excalvated, unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot,

Leyte . . . to make them livable for us the Marcos family to have a home in our
own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to
Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my
Leyte residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission, that she

intends to visit our sequestered properties in Leyte, please allow her access
thereto. She may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her undertaking said
repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the
necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not
disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later,
in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and
the municipality of Olot are within the First District of Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte, she more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the
May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A
of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's Registration Record on January 28, 1995. 31 This statement
in petitioner's Voter's Registration Record is a non-prejudicial admission. The Constitution requires at least
one (1) year residence in the district in which the candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in her favor. Private respondent also presented
petitioner's Certificate of Candidacy filed on March 8, 1995 32 where she placed seven (7) months after Item
No. 8 which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value
because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to correct
a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we held
in Alialy v. COMELEC, 34 viz.:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in the original
certificate of candidacy presented before the deadline September 11, 1959, did not render
the certificate invalid. The amendment of the certificate, although at a date after the
deadline, but before the election, was substantial compliance with the law, and the defect
was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces of documentary evidence petitioner's Voter's
Registration Record and her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's two (2) pieces of
evidence are too insufficient to disqualify petitioner, more so, to deny her the right to represent the
people of the First District of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office
shall be free from any form of harassment and discrimination." 35 A detached reading of the records of the
case at bench will show that all forms of legal and extra-legal obstacles have been thrown against petitioner
to prevent her from running as the people's representative in the First District of Leyte. In petitioner's Answer
to the petition to disqualify her, she averred: 36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is
devious. When respondent (petitioner herein) announced that she was intending to register
as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner
(Montejo) immediately opposed her intended registration by writing a letter stating that "she
is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's
affidavit, Annex "2"). After respondent (petitioner herein) had registered as a voter in Tolosa
following completion of her six-month actual residence therein, petitioner (Montejo) filed a
petition with the COMELEC to transfer the town of Tolosa from the First District to the Second
District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to remove the town of Tolosa out
of the First District and to make it a part of the new district, to achieve his purpose. However,
such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the
instant petition, for the same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and verdict of the electorate of the
First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, 37 held:

xxx xxx xxx

Prior to the registration date January 28, 1995 the petitioner (herein private respondent
Montejo) wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein)
to register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this
move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the
matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran, Guimaras and Saranggani Were Respectively
Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the
 Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of Leyte.
The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the
move of the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer. Petitioner (Montejo) filed
"Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995.
Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo
Roy G. Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of
the Commission. Believing that he could get a favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as
a voter in Tolosa so that she will be forced to run as Representative not in the First but in the
Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously
promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the dispositive
portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred

the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of the province of Leyte, is
annulled and set aside. We also deny the Petition praying for the transfer of
the municipality of Tolosa from the First District to the Second District of the
province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was
constrained to register in the Municipality of Tolosa where her house is instead of Tacloban
City, her domicile. In any case, both Tacloban City and Tolosa are in the First Legislative
District.

All these attempts to misuse our laws and legal processes are forms of rank harassments and
invidious discriminations against petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by torturing the meaning of equality, the end
result of which will allow the harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is but one Constitution for all Filipinos.
Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the
Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v. Vera, 38 we explained that the reason for this residence requirement is "to exclude a
stranger or newcomer, unacquainted, with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with the First
District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems because
she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the
electorate. The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of the electorate of the First District of Leyte and this is
not a sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical considerations.
In case of doubt, we should lean towards a rule that will give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous common law precedents on the domicile of married
women and by redefining domicile in accord with our own culture, law, and Constitution. To rule that a
married woman is eternally tethered to the domicile dictated by her dead husband is to preserve the
anachronistic and anomalous balance of advantage of a husband over his wife. We should not allow the dead
to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married women and we should not excavate what has been
entombed. More importantly, the Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish, however, to express a few comments on the issue of
petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present intention
of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed
his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making
it his permanent home (28 C.J.S. 1). It denotes a fixed permanent residence to which when absent for
business, or pleasure, or for like reasons one intends to return, and depends on facts and circumstances, in
the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom
he is legally dependent at the time of his birth. While the domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which
the person has elected and chosen for himself to displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has abandoned his
domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a)
residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an
intention to abandon the old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as
that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S. 7).

In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-
year residence requirement. Apparently, public respondent Commission deemed as conclusive petitioner's
stay and registration as voter in many places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of origin is not sufficient to constitute abandonment or
loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her
marriage, a domicile by operation of law. The proposition is that upon the death of her husband in 1989 she
retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this
proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the law is for the spouses to fully and effectively perform
their marital duties and obligations to one another. 1 The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus, while
the wife retains her marital domicile so long as the marriage subsists, she automatically loses it upon the
latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was
ended by the death of her husband, would be placed in a quite absurd and unfair situation of having been
freed from all wifely obligations yet made to hold on to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect. It is for the private respondent to prove, not for
petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for
some other place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such abandonment or
loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an
original or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year
residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa,
Leyte, but the Presidential Commission on Good Government which sequestered her residential house and
other properties forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing in her certificate of
candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City,
acquired her residence certificate 2 and resided with her brother in San Jose. She resided in San Jose, Tacloban
City until August of 1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It was in the same month of August when she applied
for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of
Olot, Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper
to use as the reckoning period of the one-year residence requirement the date when she applied for the
cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never
bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San
Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred
to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First
Congressional District of Leyte, it indubitably stands that she had more than a year of residence in the
constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year
qualification required by the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second
Division disqualifying her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24,
1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day
before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the
canvass should show that she obtained the highest number of votes (obviously noting that petitioner had won
overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she
wins, her proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to
be given to the one-year residency requirement imposed by the Constitution on aspirants for a Congressional
seat. 1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election
purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte and if so,
whether she had resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban,
where her parents lived at the time of her birth. Depending on what theory one adopts, the same may have
been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming
it did, his death certainly released her from the obligation to live with him at the residence fixed by him
during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer
to "domicile of origin," "domicile of choice," or "domicile by operation of law," which subject we shall not
belabor since it has been amply discussed by the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's
death on the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that
the deceased husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the
widow cannot possibly go far enough to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile
of the family, as laid down in the Civil Code, 2 but to continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the
stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a
domicile? To answer this question which is far from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile. Then one must have only a single domicile for the
same purpose at any given time. Once established, a domicile remains until a new one is acquired, for no
person lives who has no domicile, as defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky
by the conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light of truth, as dictated by experience and the necessity
of according petitioner her right to choose her domicile in keeping with the enlightened global trend to
recognize and protect the human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are
concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It is a
historical fact that for over three centuries, the Philippines had been colonized by Spain, a conservative,
Catholic country which transplanted to our shores the Old World cultures, mores and attitudes and values.
Through the imposition on our government of the Spanish Civil Code in 1889, the people, both men and
women, had no choice but to accept such concepts as the husband's being the head of the family and the
wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many
instances come to mind, foremost being what is related to the issue before us, namely, that "the husband
shall fix the residence of the family." 3 Because he is made responsible for the support of the wife and the rest
of the family, 4 he is also empowered to be the administrator of the conjugal property, with a few exceptions 5
and may, therefore, dispose of the conjugal partnership property for the purposes specified under the law; 6
whereas, as a general rule, the wife cannot bind the conjugal partnership without the husband's consent. 7 As
regards the property pertaining to the children under parental authority, the father is the legal administrator
and only in his absence may the mother assume his powers. 8 Demeaning to the wife's dignity are certain
strictures on her personal freedoms, practically relegating her to the position of minors and disabled persons.
To illustrate a few: The wife cannot, without the husband's consent, acquire any gratuitous title, except from
her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. 9 With respect
to her employment, the husband wields a veto power in the case the wife exercises her profession or
occupation or engages in business, provided his income is sufficient for the family, according to its social
standing and his opposition is founded on serious and valid grounds. 10 Most offensive, if not repulsive, to the
liberal-minded is the effective prohibition upon a widow to get married till after three hundred days following
the death of her husband, unless in the meantime, she has given birth to a child. 11 The mother who contracts
a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of
the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such
case she should keep and exercise parental authority over their children. 12 Again, an instance of a husband's
overarching influence from beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from
them until the concept of human rights and equality between and among nations and individuals found
hospitable lodgment in the United Nations Charter of which the Philippines was one of the original signatories.
By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn of the
century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and
women." (Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning
of the feminist movement. What may be regarded as the international bill of rights for women was
implanted in the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its liberating
spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations." 13 One such principle
 embodied in the CEDAW is granting to men and women "the same rights with regard to the law
relating to the movement of persons and the freedom to choose their residence and domicile." 14
(Emphasis supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution
of the Philippines and later, in the Family Code, 15 both of which were speedily approved by the first lady
President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals
and its bias for equality between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights" 16 and "The State recognizes the role of women
in nation-building, and shall ensure the fundamental equality before the law of women and men." 17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their husbands. Specifically, the husband and wife are
now given the right jointly to fix the family domicile; 18 concomitant to the spouses' being jointly responsible
for the support of the family is the right and duty of both spouses to manage the household; 19 the
administration and the enjoyment of the community property shall belong to both spouses jointly; 20 the
father and mother shall now jointly exercise legal guardianship over the property of their unemancipated
common child 21 and several others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in Development and Nation Building Act" 22 Among the rights given
to married women evidencing their capacity to act in contracts equal to that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements
under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural
credit, loans and non material resources and shall enjoy equal treatment in agrarian reform and land
resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and
other travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the
first to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's
full participation in decision-making at all levels, including the family" should be removed. Having been
herself a Member of the Philippine Delegation to the International Women's Year Conference in Mexico in
1975, this writer is only too keenly aware of the unremitting struggle being waged by women the world over,
Filipino women not excluded, to be accepted as equals of men and to tear down the walls of discrimination
that hold them back from their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more
rights to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their
civil, political and social life, can it still be insisted that widows are not at liberty to choose their domicile upon
the death of their husbands but must retain the same, regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to
meet the one-year requirement to run as Representative of the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., 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 compliant 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.
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. The 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 may 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. 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

xxx xxx xxx

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

xxx xxx xxx

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. 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 243, 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)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the office to which they seek to be elected. I think that
it has none and that the qualifications of candidates may be questioned only in the event they are elected, by
filing a petition for quo warranto or an election protest in the appropriate forum, not necessarily in the
COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That the parties in this case
took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and were
not rendered valid by their agreement to submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a candidate's
qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-proclamation contests but only election protests or quo
warranto proceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a person either to be a candidate or to continue as a
candidate for public office. There is also a provision for the denial or cancellation of certificates of candidacy,
but it applies only to cases involving false representations as to certain matters required by law to be stated
in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

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

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis added)

68. Disqualifications. Any candidate who, in an action or protest in which he is a party is

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

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 added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

 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 for the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).

7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure

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

and the Local Government Code of 1991 (R.A. No. 7160):

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

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation
and Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made
material representations in her certificate of candidacy which were false, it sought her disqualification on the
ground that "on the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8, 1995, [she] would
have resided less than ten (10) months in the district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate of candidacy and
corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the
position of Member of the House of Representatives for the First Legislative District of Leyte" and not because
of any finding that she had made false representations as to material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy
under 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It
is important to note this, because, as will presently be explained, proceedings under 78 have for their
purpose to disqualify a person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo warranto proceedings involving
members of the House of Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of
candidacy, the allegations were that the respondent candidates had made false representations in their
certificates of candidacy with regard to their citizenship, 1 age, 2 or residence. 3 But in the generality of cases
in which this Court passed upon the qualifications of respondents for office, this Court did so in the context of
election protests 4 or quo warranto proceedings 5 filed after the proclamation of the respondents or protestees
as winners.

Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining
his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins because of the very acts for which his disqualification is
being sought. That is why it is provided that if the grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set
aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is
amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the
determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8,
1995. This is contrary to the summary character of proceedings relating to certificates of candidacy. That is
why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. 7
The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position
which they seek to fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations made in certificates of
candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.

By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after
the results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of candidates unless they have been elected.

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the following:

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.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship
of voters. (Art. IX, C, 2(3))

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in 12 and 68 of the Omnibus Election Code
and in 40 of the Local Government Code and are for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the
purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We
have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications
prescribed in 2 of the law does not imply that he does not suffer from any of disqualifications provided in
4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing
the proclamation and prolonging the election protest," 8 through the use of "manufactured" election returns or
resort to other trickery for the purpose of altering the results of the election. This rationale does not apply to
cases for determining a candidate's qualifications for office before the election. To the contrary, it is the
candidate against whom a proceeding for disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or
action for quo warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the Regional Trial
Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4,
last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for
not allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the
case of candidates for President, Vice President, Senators and members of the House of Representatives,
because of the same policy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its
proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda
Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by
the HRET.

Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA
No. 95-009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25,
1995, declaring petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation as
Representative of the First District of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of
Procedure authorizes proceedings for the disqualification of candidates on the ground of ineligibility for the
office, it should considered void.

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice
Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this
particular controversy, the Constitutional provision on point states 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 (25) 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." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood as
synonymous with domicile. This argument has been validated by no less than the Court in numerous cases 1
where significantly the factual circumstances clearly and convincingly proved that a person does not
effectively lose his domicile of origin if the intention to reside therein is manifest with his personal presence in
the place, coupled with conduct indicative of such intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the
phrase "a resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent location for not less than a year before the election.

A second situation is where a person maintains a residence apart from his domicile in which case he would
have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the position of congressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to
his domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning
altogether his domicile in favor of his residence in the district where he desires to be a candidate.

The most extreme circumstance would be a situation wherein a person maintains several residences in
different districts. Since his domicile of origin continues as an option as long as there is no effective
abandonment (animus non revertendi), he can practically choose the district most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of
not less than one year immediately preceding the day of the election", he must be a resident in the district
where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the candidate's intent and actual presence in one district
must in all situations satisfy the length of time prescribed by the fundamental law. And this, because of a
definite Constitutional purpose. He must be familiar with the environment and problems of a district he
intends to represent in Congress and the one-year residence in said district would be the minimum period to
acquire such familiarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed
decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc)

In or about 1938 when respondent was a little over 8 years old, she established her domicile
in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from
1938 to 1948 when she graduated from high school. She pursued her college studies in St.
Paul's College, now Divine Word University of Tacloban, where she earned her degree in
Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In
1952 she went to Manila to work with her cousin, the late Speaker Daniel Z. Romualdez in his
office in the House of Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and
registered there as a voter. When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.

During the Marcos presidency, respondent served as a Member of the Batasang Pambansa,
Minister of Human Settlements and Governor of Metro Manila. She claimed that in February
1986, she and her family were abducted and kidnapped to Honolulu, Hawaii. In November
1991, she came home to Manila. In 1992 respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident
and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter
with the election officer of San Juan, Metro Manila, requesting for cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila, in
order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in
157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa,
 Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record
No. 94-3349772, wherein she alleged that she has resided in the municipality of Tolosa for a
period of 6 months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte,
a Certificate of Candidacy for the position of Representative of the First District of Leyte
wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social

Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot, Tolosa,

Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE

ELECTED IMMEDIATELY PRECEDING ELECTION: ________ Years
Seven Months

10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,

A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.

(Sgd.) Imelda Romualdez-

Marcos
(Signature of Candidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or
seed of her disqualification. It is contained in her answer under oath of "seven months" to the query of
"residence in the constituency wherein I seek to be elected immediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion in holding that
petitioner is disqualified from the position of representative for the 1st congressional district of Leyte in the
elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte)
immediately preceding the day of election
(8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next
important issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and
proclaim the winner out of the remaining qualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs.
Paredes, 23 Phil. 238 that:

. . . . 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 243, 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.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes)
(84 O.G. 905, 22 February 1988) it is provided that:

. . . 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 is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the legislative policy does not limit its concern with the effect
of a final judgement of disqualification only before the election, but even during or after the election. The law
is clear that in all situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has
also validated the jurisdiction of the Court or Commission on Election to continue hearing the petition for
disqualification in case a candidate is voted for and receives the highest number of votes, if for any reason,
he is not declared by final judgment before an election to be disqualified.

Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. 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.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the
duly elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the
personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this
case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban
City, she being a legitimate daughter of parents who appear to have taken up permanent
residence therein. She also went to school there and, for a time, taught in one of the schools
in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos
Norte, by operation of law she acquired a new domicile in that place in 1954.

3. In the successive years and during the events that happened thereafter, her husband
having been elected as a Senator and then as President, she lived with him and their family in
San Juan, Rizal and then in Malacanang Palace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then
in San Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right
of suffrage.

5. It does not appear that her husband, even after he had assumed those lofty positions
successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he
maintained his residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos
family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and
resided in different places which she claimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of
candidacy she indicated that she was then a registered voter and resident of San Juan, Metro
Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the
Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may
"be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed
this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein
she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte, for which purpose she filed with the therein Board of Election Inspectors a voter's
registration record form alleging that she had resided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of
Representative of the First District of Leyte wherein she alleged that she had been a resident
for "Seven Months" of the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein
her answer in the original certificate of candidacy to item "8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:"
was changed or replaced with a new entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on the difference between
residence and domicile. We have had enough of that and I understand that for purposes of political law and,
for that matter of international law, residence is understood to be synonymous with domicile. That is so
understood in our jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of choice and domicile by operation of law, as
understood in American law from which for this case we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a
different place. 1 In the instant case, we may grant that petitioner's domicile of origin, 2 at least as of 1938,
was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the common case of the place of birth or domicilium
originis, the second is that which is voluntarily acquired by a party or domicilium propio motu; the last which
is consequential, as that of a wife arising from marriage, 3 is sometimes called domicilium necesarium. There
is no debate that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, 4 she acquired her husband's domicile of origin in Batac,
Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring
new domiciles of choice. In fact, it appears that her having resided in those places was by reason of the
fortunes or misfortunes of her husband and his peregrinations in the assumption of new official positions or
the loss of them. Her residence in Honolulu and, of course, those after her return to the Philippines were, as
she claimed, against her will or only for transient purposes which could not have invested them with the
status of domiciles of choice. 5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency
in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other
domicile of choice which could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte.
On that score, we note the majority's own submission 6 that, to successfully effect a change of domicile, one
must demonstrate (a) an actual removal or an actual change of domicile, (b) a bona fide intention of
abandoning the former place of residence and establishing a new one, and (c) acts which correspond with the
purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of choice apply
whether what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile
by operation of law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been
replaced by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if
at all, can be the object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E.
Maambong in SPA 95-009 of the Commission on Elections, 7 and advances this novel proposition.

It may be said that petitioner lost her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law
(domicilium necesarium), her legal domicile at the time of her marriage became Batac, Ilocos
Norte although there were no indications of an intention on her part to abandon her domicile
of origin. Because of her husband's subsequent death and through the operation of the
provisions of the New Family Code already in force at the time, however, her legal domicile
automatically reverted to her domicile of origin. . . . (Emphasis supplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in
Batac, Ilocos Norte, the majority insists on making a qualification that she did not intend to abandon her
domicile of origin. I find this bewildering since, in this situation, it is the law that declares where petitioner's
domicile is at any given time, and not her self-serving or putative intent to hold on to her former domicile.
Otherwise, contrary to their own admission that one cannot have more than one domicile at a time, 8 the
majority would be suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does
not exist therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility of an automatic reversion to or reacquisition of a
domicile of origin after the termination of the cause for its loss by operation of law. The majority agrees that
since petitioner lost her domicile of origin by her marriage, the termination of the marriage also terminates
that effect thereof. I am impressed by the ingeniousness of this theory which proves that, indeed, necessity is
the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of this
argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons
the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover
his original domicile unless, by subsequent acts legally indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is precisely what petitioner belatedly and, evidently just for
purposes of her candidacy, unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin,
not only because there is no legal authority therefor but because it would be absurd Pursued to its logical
consequence, that theory of ipso jure reversion would rule out the fact that said party could already very well
have obtained another domicile, either of choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code, which the majority inexplicably invokes,
advisedly does not regulate this contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume
that she entered into the marital state against her will) but, on top of that, such abandonment was further
affirmed through her acquisition of a new domicile by operation of law. In fact, this is even a case of both
voluntary and legal abandonment of a domicile of origin. With much more reason, therefore, should we reject
the proposition that with the termination of her marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying
that during the period of marital coverture, she was simultaneously in possession and enjoyment of a
domicile of origin which was only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to
elect her own domicile, 9 she nevertheless retains the last domicile of her deceased husband until she makes
an actual change. 10 In the absence of affirmative evidence, to the contrary, the presumption is that a wife's
domicile or legal residence follows that of her husband and will continue after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of
the Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the
family domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place
was never exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for
her husband, long prior thereto. It is true that a wife now has the coordinate power to determine the conjugal
or family domicile, but that has no bearing on this case. With the death of her husband, and each of her
children having gotten married and established their own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the present factual setting of this controversy. Instead,
what is of concern in petitioner's case was the matter of her having acquired or not her own domicile of
choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation of women in
the affairs of the nation, with equal rights and recognition by Constitution and statutory conferment.
However, I have searched in vain for a specific law or judicial pronouncement which either expressly or by
necessary implication supports the majority's desired theory of automatic reacquisition of or reversion to the
domicilium originis of petitioner. Definitely, as between the settled and desirable legal norms that should
govern this issue, there is a world of difference; and, unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically
reacquired any domicile therein, she cannot legally claim that her residency in the political constituency of
which it is a part continued since her birth up to the present. Respondent commission was, therefore, correct
in rejecting her pretension to that effect in her amended/corrected certificate of candidacy, and in holding her
to her admission in the original certificate that she had actually resided in that constituency for only seven
months prior to the election. These considerations render it unnecessary to further pass upon the procedural
issues raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more
particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC
may be brought to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court
(Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of
jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has,
undoubtedly, jurisdiction over the private respondent's petition, the only issue left is whether it acted with
grave abuse of discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less
grave abuse thereof. The resolution of the Second Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil that herein petitioner was disqualified as a candidate
on the ground of lack of residence in the First Congressional District of Leyte. It has not misapplied,
miscomprehended, or misunderstood facts or circumstances of substance pertinent to the issue of her
residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner
has abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of
Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by
documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is
Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin, that
became her second domicile of choice, where her stay, unfortunately, was for only seven months before the
day of the election. She was then disqualified to be a candidate for the position of Representative of the First
Congressional District of Leyte. A holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the then
Congressman (later, President) Ferdinand E. Marcos. A domicile by operation of law is that domicile which the
law attributes to a person, independently of his own intention or actual residence, as results from legal
domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11). Under the governing
law then, Article 110 of the Civil Code, her new domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Said Article reads as follows:

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

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband has a predominant
right because he is empowered by law to fix the family residence. This right even
predominates over some rights recognized by law in the wife. For instance, under article 117
 the wife may engage in business or practice a profession or occupation. But because of the
power of the husband to fix the family domicile he may fix it at such a place as would make it
impossible for the wife to continue in business or in her profession. For justifiable reasons,
however, the wife may be exempted from living in the residence chosen by the husband. The
husband cannot validly allege desertion by the wife who refuses to follow him to a new place
of residence, when it appears that they have lived for years in a suitable home belonging to
the wife, and that his choice of a different home is not made in good faith. (Commentaries
and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires
that of her husband, no matter where the wife actually lives or what she believes or intends. Her domicile is
fixed in the sense that it is declared to be the same as his, and subject to certain limitations, he can change
her domicile by changing his own (25 Am Jur 2d Domicile 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is
no longer the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of
disagreement the court shall decide. The said article uses the term "family domicile," and not family
residence, as "the spouses may have multiple residences, and the wife may elect to remain in one of such
residences, which may destroy the duty of the spouses to live together and its corresponding benefits"
(ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the
majority opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is
unsupported by law and by jurisprudence. The settled doctrine is that after the husband's death the wife has
a right to elect her own domicile, but she retains the last domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the wife to acquire her
own domicile is revived, but until she exercises the power her domicile remains that of the husband at the
time of his death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin but
her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of
his death which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel,
Manila, were their residences for convenience to enable her husband to effectively perform his official duties.
Their residence in San Juan was a conjugal home, and it was there to which she returned in 1991 when she
was already a widow. In her sworn certificate of candidacy for the Office of the President in the synchronized
elections of May 1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also voted
in the said elections in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to
acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San
Juan, Metro Manila, to cancel her registration in the permanent list of voters in Precinct 157 thereat and
praying that she be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private respondent Montejo's
Comment). Notably, she contradicted this sworn statement regarding her place of birth when, in her Voter's
Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.),
she solemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the
affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under
oath that her "domicile or residence is Tacloban City." If she did intend to return to such domicile or residence
of origin why did she inform the Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and
indicate in her Voter's Registration Record and in her certificate of candidacy that her residence is Olot,
Tolosa, Leyte? While this uncertainty is not important insofar as residence in the congressional district is
concerned, it nevertheless proves that forty-one years had already lapsed since she had lost or abandoned
her domicile of origin by virtue of marriage and that such length of time diminished her power of recollection
or blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and
the subsequent cases which established the principle that absence from original residence or domicile of
origin to pursue studies, practice one's profession, or engage in business in other states does not constitute
loss of such residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of one's "occupation; profession; employment
in private and public service; educational activities; work in military or naval reservations; service in the
army, navy or air force, the constabulary or national police force; or confinement or detention in government
institutions in accordance with law" is not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for the exclusion is, of course, Article 110 of the
Civil Code. If it were the intention of this Court or of the legislature to consider the marriage of a woman as a
circumstance which would not operate as an abandonment of domicile (of origin or of choice), then such
cases and legal provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A"
of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is
Tacloban City," and that she "never intended to abandon this domicile or residence of origin to which [she]
always intended to return whenever absent." Such a claim of intention cannot prevail over the effect of Article
110 of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her
marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin and had
acquired a new one animo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934],
214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely committed an
honest mistake" in writing down the word "seven" in the space provided for the residency qualification
requirement in the certificate of candidacy. Such a claim is self-serving and, in the light of the foregoing
disquisitions, would be all sound and fury signifying nothing. To me, she did not commit any mistake, honest
or otherwise; what she stated was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of
an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T.
Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal consequence thereof on the change of her domicile to that of
her husband. The majority opinion rules or at least concludes that "[b]y operation of law (domicilium
necesarium), her legal domicile at the time of her marriage automatically became Batac, Ilocos Norte." That
conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived power to acquire her own domicile, the burden is upon her
to prove that she has exercised her right to acquire her own domicile. She miserably failed to discharge that
burden.

I vote to deny the petition.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their unalikeness. 1 Like other candidates, petitioner has
clearly met the residence requirement provided by Section 6, Article VI of the Constitution. 2 We cannot
disqualify her and treat her unalike, for the Constitution guarantees equal protection of the law. I proceed
from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled
in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to
school and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and
her domicile of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and
her domicile of choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E.
Marcos. By contracting marriage, her domicile became subject to change by law, and the right to change it
was given by Article 110 of the Civil Code provides:
 Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic. 3
(Emphasis supplied)

In De la Via v. Villareal and Geopano, 4 this Court explained why the domicile of the wife ought to
follow that of the husband. We held: "The reason is founded upon the theoretic identity of person and
interest between the husband and the wife, and the presumption that, from the nature of the relation,
the home of one is the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony prevail." 5 In accord with this
objective, Article 109 of the Civil Code also obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos
ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone
did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the
right to fix the domicile of the family. In the exercise of the right, the husband may explicitly choose the prior
domicile of his wife, in which case, the wife's domicile remains unchanged. The husband can also implicitly
acquiesce to his wife's prior domicile even if it is different. So we held in de la Via, 6

. . . . When married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they
have their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the
husband that will change the domicile of a wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the exercise of the right conferred by Article 110 of the
Civil Code binds the wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the husband. These
acts are void not only because the wife lacks the capacity to choose her domicile but also because
they are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family
domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At that particular
point of time and throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since
petitioner's Batac domicile has been fixed by operation of law, it was not affected in 1959 when her husband
was elected as Senator, when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and when
she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the
Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of
her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence shows he did not effect any such change. To a
large degree, this follows the common law that "a woman on her marriage loses her own domicile and by
operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes
or intends." 7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former
President Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2)
schools of thought contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice
Davide, Jr., heavily relying on American authorities. 8 He echoes the theory that after the husband's death, the
wife retains the last domicile of her husband until she makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead husband's
domicile is based on ancient common law which we can no longer apply in the Philippine setting today. The
common law identified the domicile of a wife as that of the husband and denied to her the power of acquiring
a domicile of her own separate and apart from him. 9 Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is derived from the view
that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband." 10 The second reason lies
in "the desirability of having the interests of each member of the family unit governed by the same law." 11
The presumption that the wife retains the domicile of her deceased husband is an extension of this common
law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell v. Illinois 12 was decided where
women were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity
and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . .
This is the law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS 13 and AM JUR 2d 14
are American state court decisions handed down between the years 1917 15 and 1938, 16 or before the time
when women were accorded equality of rights with men. Undeniably, the women's liberation movement
resulted in far-ranging state legislations in the United States to eliminate gender inequality. 17 Starting in the
decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected
with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed, 18 struck a big blow for women
equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family
members over females as estate administrators. It held that mere administrative inconvenience cannot justify
a sex-based distinction. These significant changes both in law and in case law on the status of women
virtually obliterated the iniquitous common law surrendering the rights of married women to their husbands
based on the dubious theory of the parties' theoretic oneness. The Corpus Juris Secundum editors did not
miss the relevance of this revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the common law theory of
marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to the
law." 19 In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable
American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the
result of statutes and court decisions, a wife now possesses practically the same rights and powers as her
unmarried sister." 20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common
law that demeans women, especially married women. I submit that the Court has no choice except to break
away from this common law rule, the root of the many degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain
restrictions or disabilities. For instance, the wife cannot accept gifts from others, regardless of
the sex of the giver or the value of the gift, other than from her very close relatives, without
her husband's consent. She may accept only from, say, her parents, parents-in-law, brothers,
sisters and the relatives within the so-called fourth civil degree. She may not exercise her
profession or occupation or engage in business if her husband objects on serious grounds or if
his income is sufficient to support their family in accordance with their social standing. As to
what constitutes "serious grounds" for objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being
proposed by the University of the Philippines Law Center would allow absolute divorce which
severes the matrimonial ties, such that the divorced spouses are free to get married a year
after the divorce is decreed by the courts. However, in order to place the husband and wife on
an equal footing insofar as the bases for divorce are concerned, the following are specified as
the grounds for absolute divorce: (1) adultery or having a paramour committed by the
respondent in any of the ways specified in the Revised Penal Code or (2) an attempt by the
respondent against the life of the petitioner which amounts to attempted parricide under the
Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause
for a period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically the administrator of the
conjugal property owned in common by the married couple even if the wife may be the more
astute or enterprising partner. The law does not leave it to the spouses to decide who shall
act as such administrator. Consequently, the husband is authorized to engage in acts and
enter into transactions beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.
 And while both exercise joint parental authority over their children, it is the father whom the
law designates as the legal administrator of the property pertaining to the unemancipated
child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate
inequality between men and women in our land. The watershed came on August 3, 1988 when our
Family Code took effect which, among others, terminated the unequal treatment of husband and wife
as to their rights and responsibilities. 22

The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-
based privileges of husbands. Among others, married women are now given the joint right to administer the
family property, whether in the absolute community system or in the system of conjugal partnership; 23 joint
parental authority over their minor children, both over their persons as well as their properties; 24 joint
responsibility for the support of the family; 25 the right to jointly manage the household; 26 and, the right to
object to their husband's exercise of profession, occupation, business or activity. 27 Of particular relevance to
the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix
the family domicile and gave it jointly to the husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of the family. (Emphasis
supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to
live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances
when a wife may now refuse to live with her husband, thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain
cases like:

(a) If the place chosen by the husband as family residence is dangerous to her
Life;

(b) If the husband subjects her to maltreatment or abusive conduct or insults,

making common life impossible;

(c) If the husband compels her to live with his parents, but she cannot get
along with her mother-in-law and they have constant quarrels (Del Rosario v.
Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10 years
with different women and treated his wife roughly and without consideration.
(Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his
family for food and necessities, and at the same time insulting his wife and
laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as a tramp
(1 Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn v. Darby,

38 La. Ann. 70).
 The inescapable conclusion is that our Family Code has completely emancipated the wife from the
control of the husband, thus abandoning the parties' theoretic identity of interest. No less than the
late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law
Center gave this insightful view in one of his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate the wife
from the exclusive control of the husband and to place her at parity with him insofar as the
family is concerned. The wife and the husband are now placed on equal standing by the
Code. They are now joint administrators of the family properties and exercise joint authority
over the persons and properties of their children. This means a dual authority in the family.
The husband will no longer prevail over the wife but she has to agree on all matters
concerning the family. (Emphasis supplied)

In light of the Family Code which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife
still retains the domicile of her dead husband. Article 110 of the Civil Code which provides the
statutory support for this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further effect in any way or
manner such as by ruling that the petitioner is still bound by the domiciliary determination of her
dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of
due process and equal protection of
law. 30 It can hardly be doubted that the common law imposition on a married woman of her dead husband's
domicile even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and
is not rationally related to the objective of promoting family solidarity. It cannot survive a constitutional
challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure fundamental equality
before the law of women and men." To be exact, section 14, Article II provides: "The State recognizes the role
of women in nation building, and shall ensure fundamental equality before the law of women and men. We
shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women
the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner
reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence
of the view that petitioner's Batac dictated domicile did not continue after her husband's death; otherwise,
she would have no domicile and that will violate the universal rule that no person can be without a domicile
at any point of time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by the
Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her
Tacloban domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not
through her act but through the act of her deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile
has been repealed. Considering all these, common law should not put the burden on petitioner to prove she
has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the
respondent COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests for my
return were denied by President Corazon C. Aquino, and after I filed suits for our Government
to issue me my passport.

37. But I came home without the mortal remains of my beloved husband, President Ferdinand
E. Marcos, which the Government considered a threat to the national security and welfare.
 38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or
in Olot, Tolosa, Leyte, even if my residences there were not livable as they had been
destroyed and cannibalized. The PCGG, however, did not permit and allow me.

39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay
City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter
rented, and Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in
San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and All Souls' Day
that year, I renovated my parents' burial grounds and entombed their bones
which had been excalvated, unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot,

Leyte . . . to make them livable for us the Marcos family to have a home in our
own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to
Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my
Leyte residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission, that she

intends to visit our sequestered properties in Leyte, please allow her access
thereto. She may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her undertaking said
repairs is not authorization for her to take over said properties, and that all
expenses shall be for her account and not reimbursable. Please extend the
necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in
Tacloban City where I wanted to stay and reside, after repairs and renovations were
completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not
disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later,
in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and
the municipality of Olot are within the First District of Leyte. Since petitioner reestablished her old
domicile in 1992 in the First District of Leyte, she more than complied with the constitutional
requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the
May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He
presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A
of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's Registration Record on January 28, 1995. 31 This statement
in petitioner's Voter's Registration Record is a non-prejudicial admission. The Constitution requires at least
one (1) year residence in the district in which the candidate shall be elected. In the case at bench, the
reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months
before January 28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her six (6) months
residence in Olot should be counted not against, but in her favor. Private respondent also presented
petitioner's Certificate of Candidacy filed on March 8, 1995 32 where she placed seven (7) months after Item
No. 8 which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value
because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to correct
a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we held
in Alialy v. COMELEC, 34 viz.:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in the original
certificate of candidacy presented before the deadline September 11, 1959, did not render
the certificate invalid. The amendment of the certificate, although at a date after the
deadline, but before the election, was substantial compliance with the law, and the defect
was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995
cannot be used as evidence against her. Private respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces of documentary evidence petitioner's Voter's
Registration Record and her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's two (2) pieces of
evidence are too insufficient to disqualify petitioner, more so, to deny her the right to represent the
people of the First District of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office
shall be free from any form of harassment and discrimination." 35 A detached reading of the records of the
case at bench will show that all forms of legal and extra-legal obstacles have been thrown against petitioner
to prevent her from running as the people's representative in the First District of Leyte. In petitioner's Answer
to the petition to disqualify her, she averred: 36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is
devious. When respondent (petitioner herein) announced that she was intending to register
as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner
(Montejo) immediately opposed her intended registration by writing a letter stating that "she
is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's
affidavit, Annex "2"). After respondent (petitioner herein) had registered as a voter in Tolosa
following completion of her six-month actual residence therein, petitioner (Montejo) filed a
petition with the COMELEC to transfer the town of Tolosa from the First District to the Second
District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose
being to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to remove the town of Tolosa out
of the First District and to make it a part of the new district, to achieve his purpose. However,
such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the
instant petition, for the same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and verdict of the electorate of the
First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, 37 held:
 xxx xxx xxx

Prior to the registration date January 28, 1995 the petitioner (herein private respondent
Montejo) wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein)
to register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this
move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the
matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of
Which the New Provinces of Biliran, Guimaras and Saranggani Were Respectively
Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of Leyte.
The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the
move of the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer. Petitioner (Montejo) filed
"Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995.
Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo
Roy G. Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of
the Commission. Believing that he could get a favorable ruling from the Supreme Court,
petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as
a voter in Tolosa so that she will be forced to run as Representative not in the First but in the
Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously
promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the dispositive
portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred

the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of the province of Leyte, is
annulled and set aside. We also deny the Petition praying for the transfer of
the municipality of Tolosa from the First District to the Second District of the
province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was
constrained to register in the Municipality of Tolosa where her house is instead of Tacloban
City, her domicile. In any case, both Tacloban City and Tolosa are in the First Legislative
District.

All these attempts to misuse our laws and legal processes are forms of rank harassments and
invidious discriminations against petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by torturing the meaning of equality, the end
result of which will allow the harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is but one Constitution for all Filipinos.
Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the
Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v. Vera, 38 we explained that the reason for this residence requirement is "to exclude a
stranger or newcomer, unacquainted, with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with the First
District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems because
she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the
electorate. The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one
(70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of the electorate of the First District of Leyte and this is
not a sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical considerations.
In case of doubt, we should lean towards a rule that will give life to the people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous common law precedents on the domicile of married
women and by redefining domicile in accord with our own culture, law, and Constitution. To rule that a
married woman is eternally tethered to the domicile dictated by her dead husband is to preserve the
anachronistic and anomalous balance of advantage of a husband over his wife. We should not allow the dead
to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married women and we should not excavate what has been
entombed. More importantly, the Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of
the First Congressional District of Leyte. I wish, however, to express a few comments on the issue of
petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present intention
of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed
his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making
it his permanent home (28 C.J.S. 1). It denotes a fixed permanent residence to which when absent for
business, or pleasure, or for like reasons one intends to return, and depends on facts and circumstances, in
the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a
domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom
he is legally dependent at the time of his birth. While the domicile of origin is generally the place where one is
born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which
the person has elected and chosen for himself to displace his previous domicile; it has for its true basis or
foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has abandoned his
domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a)
residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an
intention to abandon the old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226
SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as
that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S. 7).

In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To
my mind, public respondent Commission on Elections misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-
year residence requirement. Apparently, public respondent Commission deemed as conclusive petitioner's
stay and registration as voter in many places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that
registration of a voter in a place other than his place of origin is not sufficient to constitute abandonment or
loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her
marriage, a domicile by operation of law. The proposition is that upon the death of her husband in 1989 she
retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this
proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac,
Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the
domicile of her husband. In my view, the reason for the law is for the spouses to fully and effectively perform
their marital duties and obligations to one another. 1 The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus, while
the wife retains her marital domicile so long as the marriage subsists, she automatically loses it upon the
latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was
ended by the death of her husband, would be placed in a quite absurd and unfair situation of having been
freed from all wifely obligations yet made to hold on to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's
death without even signifying her intention to that effect. It is for the private respondent to prove, not for
petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for
some other place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such abandonment or
loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an
original or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed
to discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether
voluntarily or involuntarily, a new domicile to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year
residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa,
Leyte, but the Presidential Commission on Good Government which sequestered her residential house and
other properties forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing in her certificate of
candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City,
acquired her residence certificate 2 and resided with her brother in San Jose. She resided in San Jose, Tacloban
City until August of 1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It was in the same month of August when she applied
for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of
Olot, Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper
to use as the reckoning period of the one-year residence requirement the date when she applied for the
cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never
bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San
Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred
to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First
Congressional District of Leyte, it indubitably stands that she had more than a year of residence in the
constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year
qualification required by the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running
for Representative of her District and that, in the event that she should, nevertheless, muster a majority vote,
her proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its
decision as has been its unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second
Division disqualifying her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24,
1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day
before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the
canvass should show that she obtained the highest number of votes (obviously noting that petitioner had won
overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she
wins, her proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to
be given to the one-year residency requirement imposed by the Constitution on aspirants for a Congressional
seat. 1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election
purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte and if so,
whether she had resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban,
where her parents lived at the time of her birth. Depending on what theory one adopts, the same may have
been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming
it did, his death certainly released her from the obligation to live with him at the residence fixed by him
during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer
to "domicile of origin," "domicile of choice," or "domicile by operation of law," which subject we shall not
belabor since it has been amply discussed by the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's
death on the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that
the deceased husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the
widow cannot possibly go far enough to sever the domiciliary tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile
of the family, as laid down in the Civil Code, 2 but to continue giving obeisance to his wishes even after the
rationale underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the
stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the
demise of her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a
domicile? To answer this question which is far from rhetorical, one will have to keep in mind the basic
principles of domicile. Everyone must have a domicile. Then one must have only a single domicile for the
same purpose at any given time. Once established, a domicile remains until a new one is acquired, for no
person lives who has no domicile, as defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky
by the conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is
opportune to illumine the darkness with the beacon light of truth, as dictated by experience and the necessity
of according petitioner her right to choose her domicile in keeping with the enlightened global trend to
recognize and protect the human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are
concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It is a
historical fact that for over three centuries, the Philippines had been colonized by Spain, a conservative,
Catholic country which transplanted to our shores the Old World cultures, mores and attitudes and values.
Through the imposition on our government of the Spanish Civil Code in 1889, the people, both men and
women, had no choice but to accept such concepts as the husband's being the head of the family and the
wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many
instances come to mind, foremost being what is related to the issue before us, namely, that "the husband
shall fix the residence of the family." 3 Because he is made responsible for the support of the wife and the rest
of the family, 4 he is also empowered to be the administrator of the conjugal property, with a few exceptions 5
and may, therefore, dispose of the conjugal partnership property for the purposes specified under the law; 6
whereas, as a general rule, the wife cannot bind the conjugal partnership without the husband's consent. 7 As
regards the property pertaining to the children under parental authority, the father is the legal administrator
and only in his absence may the mother assume his powers. 8 Demeaning to the wife's dignity are certain
strictures on her personal freedoms, practically relegating her to the position of minors and disabled persons.
To illustrate a few: The wife cannot, without the husband's consent, acquire any gratuitous title, except from
her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. 9 With respect
to her employment, the husband wields a veto power in the case the wife exercises her profession or
occupation or engages in business, provided his income is sufficient for the family, according to its social
standing and his opposition is founded on serious and valid grounds. 10 Most offensive, if not repulsive, to the
liberal-minded is the effective prohibition upon a widow to get married till after three hundred days following
the death of her husband, unless in the meantime, she has given birth to a child. 11 The mother who contracts
a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of
the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such
case she should keep and exercise parental authority over their children. 12 Again, an instance of a husband's
overarching influence from beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from
them until the concept of human rights and equality between and among nations and individuals found
hospitable lodgment in the United Nations Charter of which the Philippines was one of the original signatories.
By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn of the
century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and
women." (Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning
of the feminist movement. What may be regarded as the international bill of rights for women was
implanted in the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its liberating
spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations." 13 One such principle
embodied in the CEDAW is granting to men and women "the same rights with regard to the law
relating to the movement of persons and the freedom to choose their residence and domicile." 14
(Emphasis supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution
of the Philippines and later, in the Family Code, 15 both of which were speedily approved by the first lady
President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals
and its bias for equality between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights" 16 and "The State recognizes the role of women
in nation-building, and shall ensure the fundamental equality before the law of women and men." 17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and
the grant to them of personal rights equal to that of their husbands. Specifically, the husband and wife are
now given the right jointly to fix the family domicile; 18 concomitant to the spouses' being jointly responsible
for the support of the family is the right and duty of both spouses to manage the household; 19 the
administration and the enjoyment of the community property shall belong to both spouses jointly; 20 the
father and mother shall now jointly exercise legal guardianship over the property of their unemancipated
common child 21 and several others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress
passed a law popularly known as "Women in Development and Nation Building Act" 22 Among the rights given
to married women evidencing their capacity to act in contracts equal to that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements
under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural
credit, loans and non material resources and shall enjoy equal treatment in agrarian reform and land
resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and
other travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the
first to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's
full participation in decision-making at all levels, including the family" should be removed. Having been
herself a Member of the Philippine Delegation to the International Women's Year Conference in Mexico in
1975, this writer is only too keenly aware of the unremitting struggle being waged by women the world over,
Filipino women not excluded, to be accepted as equals of men and to tear down the walls of discrimination
that hold them back from their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more
rights to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their
civil, political and social life, can it still be insisted that widows are not at liberty to choose their domicile upon
the death of their husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the
domicile of the departed husband, if at all she was before. Neither does she automatically revert to her
domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the First District of Leyte,
petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to
meet the one-year requirement to run as Representative of the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., 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 compliant 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.
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. The 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 may 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. 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

xxx xxx xxx

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

xxx xxx xxx

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. 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 243, 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)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify
candidates on the ground that they lack eligibility for the office to which they seek to be elected. I think that
it has none and that the qualifications of candidates may be questioned only in the event they are elected, by
filing a petition for quo warranto or an election protest in the appropriate forum, not necessarily in the
COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That the parties in this case
took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and were
not rendered valid by their agreement to submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a candidate's
qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in
the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-proclamation contests but only election protests or quo
warranto proceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity (due to
insanity, incompetence or conviction of an offense) of a person either to be a candidate or to continue as a
candidate for public office. There is also a provision for the denial or cancellation of certificates of candidacy,
but it applies only to cases involving false representations as to certain matters required by law to be stated
in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

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

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis added)

68. Disqualifications. Any candidate who, in an action or protest in which he is a party is

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

the Electoral Reforms Law of 1987 (R.A. No. 6646):

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 for the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).

7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure

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

and the Local Government Code of 1991 (R.A. No. 7160):

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

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation
and Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made
material representations in her certificate of candidacy which were false, it sought her disqualification on the
ground that "on the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8, 1995, [she] would
have resided less than ten (10) months in the district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate of candidacy and
corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the
position of Member of the House of Representatives for the First Legislative District of Leyte" and not because
of any finding that she had made false representations as to material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy
under 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It
is important to note this, because, as will presently be explained, proceedings under 78 have for their
purpose to disqualify a person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo warranto proceedings involving
members of the House of Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of
candidacy, the allegations were that the respondent candidates had made false representations in their
certificates of candidacy with regard to their citizenship, 1 age, 2 or residence. 3 But in the generality of cases
in which this Court passed upon the qualifications of respondents for office, this Court did so in the context of
election protests 4 or quo warranto proceedings 5 filed after the proclamation of the respondents or protestees
as winners.

Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining
his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins because of the very acts for which his disqualification is
being sought. That is why it is provided that if the grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set
aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is
amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the
determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8,
1995. This is contrary to the summary character of proceedings relating to certificates of candidacy. That is
why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. 7
The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position
which they seek to fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations made in certificates of
candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.

By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after
the results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy
based on the same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of candidates unless they have been elected.

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the following:

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.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule.
Such an act is equivalent to the creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship
of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in 12 and 68 of the Omnibus Election Code
and in 40 of the Local Government Code and are for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to
the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the
purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We
have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications
prescribed in 2 of the law does not imply that he does not suffer from any of disqualifications provided in
4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election
practices or offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing
the proclamation and prolonging the election protest," 8 through the use of "manufactured" election returns or
resort to other trickery for the purpose of altering the results of the election. This rationale does not apply to
cases for determining a candidate's qualifications for office before the election. To the contrary, it is the
candidate against whom a proceeding for disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or
action for quo warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his
proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of the
Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the Regional Trial
Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4,
last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of
Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for
not allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the
case of candidates for President, Vice President, Senators and members of the House of Representatives,
because of the same policy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its
proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda
Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by
the HRET.

Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA
No. 95-009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25,
1995, declaring petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation as
Representative of the First District of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of
Procedure authorizes proceedings for the disqualification of candidates on the ground of ineligibility for the
office, it should considered void.

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice
Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the
provision itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this
particular controversy, the Constitutional provision on point states 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 (25) 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." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood as
synonymous with domicile. This argument has been validated by no less than the Court in numerous cases 1
where significantly the factual circumstances clearly and convincingly proved that a person does not
effectively lose his domicile of origin if the intention to reside therein is manifest with his personal presence in
the place, coupled with conduct indicative of such intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the
phrase "a resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only has to
prove that he has been domiciled in a permanent location for not less than a year before the election.

A second situation is where a person maintains a residence apart from his domicile in which case he would
have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the
district as the minimum period for eligibility to the position of congressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to
his domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning
altogether his domicile in favor of his residence in the district where he desires to be a candidate.

The most extreme circumstance would be a situation wherein a person maintains several residences in
different districts. Since his domicile of origin continues as an option as long as there is no effective
abandonment (animus non revertendi), he can practically choose the district most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of
not less than one year immediately preceding the day of the election", he must be a resident in the district
where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to
be synonymous with "domicile." In other words, the candidate's intent and actual presence in one district
must in all situations satisfy the length of time prescribed by the fundamental law. And this, because of a
definite Constitutional purpose. He must be familiar with the environment and problems of a district he
intends to represent in Congress and the one-year residence in said district would be the minimum period to
acquire such familiarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed
decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc)

In or about 1938 when respondent was a little over 8 years old, she established her domicile
in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from
1938 to 1948 when she graduated from high school. She pursued her college studies in St.
Paul's College, now Divine Word University of Tacloban, where she earned her degree in
Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In
1952 she went to Manila to work with her cousin, the late Speaker Daniel Z. Romualdez in his
office in the House of Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and
registered there as a voter. When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.

During the Marcos presidency, respondent served as a Member of the Batasang Pambansa,
Minister of Human Settlements and Governor of Metro Manila. She claimed that in February
 1986, she and her family were abducted and kidnapped to Honolulu, Hawaii. In November
1991, she came home to Manila. In 1992 respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident
and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter
with the election officer of San Juan, Metro Manila, requesting for cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila, in
order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of
Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in
157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa,
Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record
No. 94-3349772, wherein she alleged that she has resided in the municipality of Tolosa for a
period of 6 months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte,
a Certificate of Candidacy for the position of Representative of the First District of Leyte
wherein she also alleged that she has been a resident in the constituency where she seeks to
be elected for a period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social

Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot, Tolosa,

Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE

ELECTED IMMEDIATELY PRECEDING ELECTION: ________ Years
Seven Months

10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,

A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the
obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose
of evasion; and That the facts stated herein are true to the best of my knowledge.

(Sgd.) Imelda Romualdez-

Marcos
(Signature of Candidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or
seed of her disqualification. It is contained in her answer under oath of "seven months" to the query of
"residence in the constituency wherein I seek to be elected immediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion in holding that
petitioner is disqualified from the position of representative for the 1st congressional district of Leyte in the
elections of 8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st
district, Leyte) immediately preceding the day of election (8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next
important issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and
proclaim the winner out of the remaining qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564,
August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs.
Paredes, 23 Phil. 238 that:

. . . . 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 243, 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.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes)
(84 O.G. 905, 22 February 1988) it is provided that:

. . . 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 is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the
provision quoted above. As the law now stands, the legislative policy does not limit its concern with the effect
of a final judgement of disqualification only before the election, but even during or after the election. The law
is clear that in all situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has
also validated the jurisdiction of the Court or Commission on Election to continue hearing the petition for
disqualification in case a candidate is voted for and receives the highest number of votes, if for any reason,
he is not declared by final judgment before an election to be disqualified.

Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his
guilt is strong) is also explicit under the law. 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.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the
duly elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the
personality of a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this
case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban
City, she being a legitimate daughter of parents who appear to have taken up permanent
residence therein. She also went to school there and, for a time, taught in one of the schools
in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos
Norte, by operation of law she acquired a new domicile in that place in 1954.

3. In the successive years and during the events that happened thereafter, her husband
having been elected as a Senator and then as President, she lived with him and their family in
San Juan, Rizal and then in Malacanang Palace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then
in San Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right
of suffrage.

5. It does not appear that her husband, even after he had assumed those lofty positions
successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he
maintained his residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos
family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and
resided in different places which she claimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of
candidacy she indicated that she was then a registered voter and resident of San Juan, Metro
Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the
Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may
"be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed
this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein
she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa,
Leyte, for which purpose she filed with the therein Board of Election Inspectors a voter's
registration record form alleging that she had resided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of
Representative of the First District of Leyte wherein she alleged that she had been a resident
for "Seven Months" of the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein
her answer in the original certificate of candidacy to item "8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:"
was changed or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the
residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on the difference between
residence and domicile. We have had enough of that and I understand that for purposes of political law and,
for that matter of international law, residence is understood to be synonymous with domicile. That is so
understood in our jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable
from her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically
its permutations into the domicile of origin, domicile of choice and domicile by operation of law, as
understood in American law from which for this case we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of
origin," constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a
different place. 1 In the instant case, we may grant that petitioner's domicile of origin, 2 at least as of 1938,
was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the common case of the place of birth or domicilium
originis, the second is that which is voluntarily acquired by a party or domicilium propio motu; the last which
is consequential, as that of a wife arising from marriage, 3 is sometimes called domicilium necesarium. There
is no debate that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only
international or American but of our own enactment, 4 she acquired her husband's domicile of origin in Batac,
Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring
new domiciles of choice. In fact, it appears that her having resided in those places was by reason of the
fortunes or misfortunes of her husband and his peregrinations in the assumption of new official positions or
the loss of them. Her residence in Honolulu and, of course, those after her return to the Philippines were, as
she claimed, against her will or only for transient purposes which could not have invested them with the
status of domiciles of choice. 5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency
in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other
domicile of choice which could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte.
On that score, we note the majority's own submission 6 that, to successfully effect a change of domicile, one
must demonstrate (a) an actual removal or an actual change of domicile, (b) a bona fide intention of
abandoning the former place of residence and establishing a new one, and (c) acts which correspond with the
purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of choice apply
whether what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile
by operation of law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been
replaced by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if
at all, can be the object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E.
Maambong in SPA 95-009 of the Commission on Elections, 7 and advances this novel proposition.

It may be said that petitioner lost her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law
(domicilium necesarium), her legal domicile at the time of her marriage became Batac, Ilocos
Norte although there were no indications of an intention on her part to abandon her domicile
 of origin. Because of her husband's subsequent death and through the
operation of the provisions of the New Family Code already in force at the time,
however, her legal domicile automatically reverted to her domicile of
origin. . . . (Emphasis supplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium
necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did
not intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is
the law that declares where petitioner's domicile is at any given time, and not her self-serving
or putative intent to hold on to her former domicile. Otherwise, contrary to their own admission
that one cannot have more than one domicile at a time, 8 the majority would be suggesting
that petitioner retained Tacloban City as (for lack of a term in law since it does not exist
therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual
domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in
accordance with law. However, we are here being titillated with the possibility of an automatic
reversion to or reacquisition of a domicile of origin after the termination of the cause for its loss
by operation of law. The majority agrees that since petitioner lost her domicile of origin by her
marriage, the termination of the marriage also terminates that effect thereof. I am impressed
by the ingeniousness of this theory which proves that, indeed, necessity is the mother of
inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of this
argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby
voluntarily abandons the former in favor of the latter. If, thereafter, he abandons that chosen
domicile, he does not per se recover his original domicile unless, by subsequent acts legally
indicative thereof, he evinces his intent and desire to establish the same as his new domicile,
which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his
domicile of origin, not only because there is no legal authority therefor but because it would be
absurd Pursued to its logical consequence, that theory of ipso jure reversion would rule out the
fact that said party could already very well have obtained another domicile, either of choice or
by operation of law, other than his domicile of origin. Significantly and obviously for this
reason, the Family Code, which the majority inexplicably invokes, advisedly does not regulate
this contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice
(unless we assume that she entered into the marital state against her will) but, on top of that,
such abandonment was further affirmed through her acquisition of a new domicile by
operation of law. In fact, this is even a case of both voluntary and legal abandonment of a
domicile of origin. With much more reason, therefore, should we reject the proposition that
with the termination of her marriage in 1989, petitioner had supposedly per se and ipso facto
reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount
to saying that during the period of marital coverture, she was simultaneously in possession
and enjoyment of a domicile of origin which was only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife
has the right to elect her own domicile, 9 she nevertheless retains the last domicile of her
deceased husband until she makes an actual change. 10 In the absence of affirmative evidence,
to the contrary, the presumption is that a wife's domicile or legal residence follows that of her
husband and will continue after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under this new
code, the right and power to fix the family domicile is now shared by the spouses. I cannot
perceive how that joint right, which in the first place was never exercised by the spouses, could
affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior
thereto. It is true that a wife now has the coordinate power to determine the conjugal or family
domicile, but that has no bearing on this case. With the death of her husband, and each of her
children having gotten married and established their own respective domiciles, the exercise of
that joint power was and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of her having
acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation
of women in the affairs of the nation, with equal rights and recognition by Constitution and
statutory conferment. However, I have searched in vain for a specific law or judicial
pronouncement which either expressly or by necessary implication supports the majority's
desired theory of automatic reacquisition of or reversion to the domicilium originis of
petitioner. Definitely, as between the settled and desirable legal norms that should govern this
issue, there is a world of difference; and, unquestionably, this should be resolved by legislative
articulation but not by the eloquence of the well-turned phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having
automatically reacquired any domicile therein, she cannot legally claim that her residency in
the political constituency of which it is a part continued since her birth up to the present.
Respondent commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original
certificate that she had actually resided in that constituency for only seven months prior to the
election. These considerations render it unnecessary to further pass upon the procedural
issues raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
Kapunan, more particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the
COMELEC may be brought to this Court only by the special civil action for certiorari under Rule
65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA
84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in
excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court).
Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the
only issue left is whether it acted with grave abuse of discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the
COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total absence of
abuse of discretion, much less grave abuse thereof. The resolution of the Second Division
dispassionately and objectively discussed in minute details the facts which established beyond
cavil that herein petitioner was disqualified as a candidate on the ground of lack of residence
in the First Congressional District of Leyte. It has not misapplied, miscomprehended, or
misunderstood facts or circumstances of substance pertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that
the petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First
Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission
or by documentary evidence, overwhelming proof of the loss or abandonment of her domicile
of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again
in her domicile of origin, that became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of the First Congressional
District of Leyte. A holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or
Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her
marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by
operation of law is that domicile which the law attributes to a person, independently of his own
intention or actual residence, as results from legal domestic relations as that of the wife arising
from marriage (28 C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the
Civil Code, her new domicile or her domicile of choice was the domicile of her husband, which
was Batac, Ilocos Norte. Said Article reads as follows:

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

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband has a
predominant right because he is empowered by law to fix the family residence.
This right even predominates over some rights recognized by law in the wife.
For instance, under article 117 the wife may engage in business or practice a
profession or occupation. But because of the power of the husband to fix the
family domicile he may fix it at such a place as would make it impossible for
the wife to continue in business or in her profession. For justifiable reasons,
however, the wife may be exempted from living in the residence chosen by the
husband. The husband cannot validly allege desertion by the wife who refuses
to follow him to a new place of residence, when it appears that they have lived
for years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and Jurisprudence on
the Civil Code of the Philippines, vol. 1, 1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of
law, acquires that of her husband, no matter where the wife actually lives or what she believes
or intends. Her domicile is fixed in the sense that it is declared to be the same as his, and
subject to certain limitations, he can change her domicile by changing his own (25 Am Jur 2d
Domicile 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the
family domicile is no longer the sole prerogative of the husband, but is now a joint decision of
the spouses, and in case of disagreement the court shall decide. The said article uses the term
"family domicile," and not family residence, as "the spouses may have multiple residences,
and the wife may elect to remain in one of such residences, which may destroy the duty of the
spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on
the Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her
husband, which the majority opinion adopts to overcome the legal effect of the petitioner's
marriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrine is
that after the husband's death the wife has a right to elect her own domicile, but she retains
the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile 12, 27).
Or, on the death of the husband, the power of the wife to acquire her own domicile is revived,
but until she exercises the power her domicile remains that of the husband at the time of his
death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin
but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband
at the time of his death which was Batac, Ilocos Norte, since their residences in San Juan,
Metro Manila, and San Miguel, Manila, were their residences for convenience to enable her
husband to effectively perform his official duties. Their residence in San Juan was a conjugal
home, and it was there to which she returned in 1991 when she was already a widow. In her
sworn certificate of candidacy for the Office of the President in the synchronized elections of
May 1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also
voted in the said elections in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a
widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting
the Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list
of voters in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy.
Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit
"B," attached as Annex "2" of private respondent Montejo's Comment). Notably, she
contradicted this sworn statement regarding her place of birth when, in her Voter's Affidavit
sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter
Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex
"5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A,"
attached as Annex "1," Id.), she solemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte?
In the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition),
she declared under oath that her "domicile or residence is Tacloban City." If she did intend to
return to such domicile or residence of origin why did she inform the Election Officer of San
Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration
Record and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this
uncertainty is not important insofar as residence in the congressional district is concerned, it
nevertheless proves that forty-one years had already lapsed since she had lost or abandoned
her domicile of origin by virtue of marriage and that such length of time diminished her power
of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294
[1954]), and the subsequent cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice one's profession, or engage in
business in other states does not constitute loss of such residence or domicile. So is the
reliance on Section 117 of the Omnibus Election Code which provides that transfer of residence
to any other place by reason of one's "occupation; profession; employment in private and
public service; educational activities; work in military or naval reservations; service in the
army, navy or air force, the constabulary or national police force; or confinement or detention
in government institutions in accordance with law" is not deemed as loss of original residence.
Those cases and legal provision do not include marriage of a woman. The reason for the
exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court or of
the legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and legal
provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in her
affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her
"domicile or residence of origin is Tacloban City," and that she "never intended to abandon this
domicile or residence of origin to which [she] always intended to return whenever absent."
Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code.
Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her
marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin
and had acquired a new one animo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence
and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely
committed an honest mistake" in writing down the word "seven" in the space provided for the
residency qualification requirement in the certificate of candidacy. Such a claim is self-serving
and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing.
To me, she did not commit any mistake, honest or otherwise; what she stated was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the
affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC,
200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having
admitted marriage to the then Congressman Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to that of her husband. The majority
opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her
legal domicile at the time of her marriage automatically became Batac, Ilocos Norte." That
conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her
deceased husband's domicile until she exercises her revived power to acquire her own
domicile, the burden is upon her to prove that she has exercised her right to acquire her own
domicile. She miserably failed to discharge that burden.

I vote to deny the petition.

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