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FRIVALDO VS COMELEC

FACTS:

On March 20, 1995, priv. res Juan G. Frivaldo filed his COC for governor ofSorsogon in the May 8, 1995 elections.

On March 23, 1995, pet Raul R. Lee, another candidate, filed a petition with theComelec praying that Frivaldo "be disqualified from seeking or holding anypublic office or position by reason of not yet being a citizen of the Philippines",and that his COC be canceled.

On May 1, 1995, the Second Division of the Comelec granted the petition TheMR filed by Frivaldo remained unacted upon until after the May 8, 1995 elections.So, his candidacy continued and he was voted for during the elections held on

said date.

On May 11, 1995, the Comelec en banc affirmed the aforementioned Resolutionof the Second Division.ON May 27, 1995 Prov. BOC completed the canvass ofthe election returns and a Certificate of Votes. Juan G. Frivaldo 73,440., Raul R.Lee 53,304

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

In an order dated June 21, 1995, but promulgated according to the petition "onlyon June 29, 1995," the Comelec en bancdirected "the Prov. BOC of Sorsogon toreconvene for the purpose of proclaiming candidate Raul Lee as the winninggubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ."Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimedgovernor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,praying for theannulment of the June 30, 1995 proclamation of Lee and for his ownproclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took

his oath of allegiance as a citizen of the Philippines after "his petition forrepatriation under P.D. 725 which he filed with the Special Committee onNaturalization in September 1994 had been granted". As such, when "the saidorder (dated June 21, 1995) (of the Comelec) . . . was released and received byFrivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legalimpediment to the proclamation (of Frivaldo) as governor . . ." In the alternative,he averred that pursuant to the two cases ofLabo vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the hereinassailed Resolutionholding that Lee, "not having garnered the highest number ofvotes," was not legally entitled to be proclaimed as duly-elected governor; andthat Frivaldo, "having garnered the highest number of votes,and . . . having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified tohold the office of governor of Sorsogon"; thus:

On December 26, 1995, Lee filed a motion for reconsideration which was deniedby the Comelec en bancin its Resolution promulgated on February 23, 1996. OnFebruary 26, 1996, the present petition was filed. Acting on the prayer for a

temporary restraining order, this Court issued on February 27, 1996 a Resolutionwhich inter alia directed the parties "to maintain thestatus quo prevailing prior tothe filing of this petition."

The facts of this case are essentially the same as those in G.R. No. 123755.However, Frivaldo assails the above-mentioned resolutions on a different ground:that underSection 78 of the OEC. Sec. 78. Petition to deny due course or tocancel a certificate of candidacy. -- A verified petition seeking to deny due courseor to cancel a certificate of candidacy may be filed by any person exclusively onthe ground that any material representation contained therein as required underSection 74 hereof is false. The petition may be filed at any time not later thantwenty-five days from the time of the filing of the certificate of candidacy andshallbe decided, after notice and hearing, not later than fifteen days before theelection. the Comelec had no jurisdiction to issue said Resolutions because theywere not rendered "within the period allowed by law" i.e., "not later than fifteendays before the election."

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

Resolutions null and void.

on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 sincethey are intimately related in their factual environment and are identical in theultimate question raised, viz., who should occupy the position of governor of theprovince of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required

them thereafter to file simultaneously their respective memoranda.

ISSUES:

1. Was the repatriation of Frivaldo valid and legal?

2. Is lack of citizenship a continuing disqualification?

HELD:

The Local Government Code of 1991 expressly requires Philippine citizenship aa qualification for elective local officials, including that of provincial governothus: Sec. 39. Qualifications. -- (a) An elective local official must be a citizen othe Philippines; a registered voter in the barangay, municipality, city, or provincor, in the case of a member of the sangguniang panlalawigan, sanggunianpanlungsod, or sangguniang bayan, the district where he intends to be elected; resident therein for at least one (1) year immediately preceding the day of thelection; and able to read and write Filipino or any other local language or dialec

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

Inasmuch as Frivaldo had been declared by this Court as a non-citizen, it i

therefore incumbent upon him to show that he has reacquired citizenship; in finethat he possesses the qualifications prescribed under the said statute (R.A7160).

Under Philippine law, citizenship may be reacquired by:

1. Direct act of Congress ( Frivaldo tried this but did not materialize)

2. By naturalization or (this was rejected by the court bec of jurisdictionasubstantial and procedural defects.)

3. By repatriation.

Frivaldo contends:

1. that he took his oath of allegiance under the provisions of saiDecree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, hinsists that he -- not Lee -- should have been proclaimed as the dulyelected governor of Sorsogon when the Prov. BOC met at 8:30 p.m. othe said date since, clearly and unquestionably, he garnered thhighest number of votes in the elections and since at that time, h

already reacquired his citizenship.

2.

Lee Contentions:

1. P.D. No. 725 had "been effectively repealed"- Pres. Aquinforbade the grant of citizenship by Presidential Decree or Executive Issuanceand in her memorandum she directed them to cease and desist any proceedings

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

The memorandum of then President Aquino cannot even be regarded as legislative enactment, for not every pronouncement of the Chief Executive eveunder the Transitory Provisions of the 1987 Constitution can nor should bregarded as an exercise of her law-making powers. At best, it could be treated aan executive policy addressed to the Special Committee to halt the acceptancand processing of applications for repatriation pending whatever "judgment thfirst Congress under the 1987 Constitution" might make. In other words, thformer President did not repeal P.D. 725 but left it to the first Congress -- onccreated -- to deal with the matter.

2. There was a serious irregularities in the repatriation proceedings.

Lee asserts that Frivaldo's application therefor was "filed on June 29, 1995 . .(and) was approved in just one day or on June 30, 1995 . . .", which "prevented judicious review and evaluation of the merits thereof." Frivaldo counters that hfiled his application for repatriation with the Office of the President in MalacaanPalace on August 17, 1994. This is confirmed by the Solicitor General. Howevethe Special Committee was reactivated only on June 8, 1995, when presumablthe said Committee started processing his application. On June 29, 1995, hfilled up and re-submitted the FORM that the Committee required. Under thescircumstances, it could not be said that there was "indecent haste" in thprocessing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee oNaturalization was intended solely for the personal interest of respondent," theSolicitor General explained during the oral argument on March 19, 1996 thasuch allegation is simply baseless as there were many others who applied anwere considered for repatriation, a list of whom was submitted by him to thiCourt, through a Manifestationfiled on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumptioof regularity in the performance of official duty and the presumption of legality the repatriation of Frivaldo have not been successfully rebutted by Lee. The merfact that the proceedings were speeded up is by itself not a ground to concludthat such proceedings were necessarily tainted. After all, the requirements o

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repatriation under P.D. No. 725 are not difficult to comply with, nor are theytedious and cumbersome.

In fact, P.D.725 itself requires very little of an applicant, and even the rules andregulations to implement the said decree were left to the Special Committee topromulgate. This is not unusual since, unlike in naturalization where an aliencovets a first-time entry into Philippine political life, in repatriation the applicant isa former natural-born Filipino who is merely seeking to reacquire his previouscitizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizenwho openly and faithfully served his country and his province prior to hisnaturalization in the United States -- a naturalization he insists was madenecessary only to escape the iron clutches of a dictatorship he abhorred andcould not in conscience embrace -- and who, after the fall of the dictator and there-establishment of democratic space, wasted no time in returning to his country

of birth to offer once more his talent and services to his people.3. assuming that the repatriation was valid, it could only be effectiveat 2pm june 30 '95 whereas the citizenship qualification prescribed bythe Local Government Code "must exist on the date of his election, ifnot when the certificate of candidacy is filed citing the case decidedby the court that "both the Local Government Code and theConstitution require that only Philippine citizens can run and beelected to public office."

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

1. a citizen of the Philippines;

2. a registered voter in the barangay, municipality, city, orprovince . . . where he intends to be elected;

3. a resident therein for at least one (1) year immediatelypreceding the day of the election;

4. able to read and write Filipino or any other locallanguage or dialect.

5. In addition, "candidates for the position of governor . . .must be at least twenty-three (23) years of age onelection day.

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

Philippine citizenship is an indispensable requirement for holding an electivepublic office, and the purpose of the citizenship qualification is none other than toensure that no alien, i.e., no person owing allegiance to another nation, shallgovern our people and our country or a unit of territory thereof. Now, an officialbegins to govern or to discharge his functions only upon his proclamationandonthe day the law mandates his term of office to begin. Since Frivaldo re-assumedhis citizenship on June 30, 1995 -- the very day the term of office of governor(and other elective officials) began -- he was therefore already qualified to beproclaimed, to hold such office and to discharge the functions and responsibilities

thereof as of said date. In short, at that time, he was already qualified to governhis native Sorsogon. This is the liberal interpretation that should give spirit, lifeand meaning to our law on qualifications consistent with the purpose for whichsuch law was enacted. So too, even from a literal(as distinguished from liberal)construction, it should be noted that Section 39 of the Local Government Codespeaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Whythen should such qualification be required at the time of election or at the time ofthe filing of the certificates of candidacies, as Lee insists? Literally, suchqualifications -- unless otherwise expressly conditioned, as in the case of ageand residence -- should thus be possessed when the "elective [or elected]official" begins to govern, i.e., at the time he is proclaimed andat the start of histerm -- in this case, on June 30, 1995. Paraphrasing this Court's ruling inVasquez vs. Giap and Li Seng Giap & Sons, if the purpose of the citizenshiprequirement is to ensure that our people and country do not end up beinggoverned by aliens, i.e., persons owing allegiance to another nation, that aim orpurpose would not be thwarted but instead achievedby construing the citizenshipqualification as applying to the time of proclamation of the elected official and atthe start of his term.

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

The answer to this problem again lies in discerning the purpose of therequirement. If the law intended the citizenship qualification to be possessedprior to election consistent with the requirement of being a registered voter, thenit would not have made citizenship a SEPARATE qualification. The law abhors aredundancy. It therefore stands to reason that the law intended CITIZENSHIP tobe a qualification distinct from being a VOTER, even if being a voter presumesbeing a citizen first. It also stands to reason that the voter requirement wasincluded as another qualification (aside from "citizenship"), not to reiterate theneed for nationality but to require that the official be registered as a voter IN THE

AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registerevoter in the barangay, municipality, city, or province . . . where he intends to belected." It should be emphasized that the Local Government Code requires aelective official to be a registered voter. It does not require him to voteactuallyHence, registration -- not the actual voting -- is the core of this "qualification". other words, the law's purpose in this second requirement is to ensure that thprospective official is actually registered in the area he seeks to govern --and noanywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has nodisputed -- that he "was and is a registered voter of Sorsogon, and hregistration as a voter has been sustained as valid by judicial declaration . . . fact, he cast his vote in his precinct on May 8, 1995."

So too, during the oral argument, his counsel steadfastly maintained that "M

Frivaldo has always been a registered voter of Sorsogon. He has voted in 19871988, 1992, then he voted again in 1995. In fact, his eligibility as a voter waquestioned, but the court dismissed (sic) his eligibility as a voter and he waallowed to vote as in fact, he voted in all the previous elections including on Ma8, 1995."

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

There is yet another reason why the prime issue of citizenship should bereckoned from the date of proclamation, not necessarily the date of election odate of filing of the certificate of candidacy. Section 253 of the Omnibus ElectioCode gives any voter, presumably including the defeated candidate, thopportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This the only provision of the Code that authorizes a remedy on how to contest befothe Comelec an incumbent's ineligibility arising from failure to meet thqualifications enumerated under Sec. 39 of the Local Government Code. Sucremedy ofQuo Warranto can be availed of "within ten days after proclamation" othe winning candidate. Hence, it is only at such time that the issue of ineligibilitmay be taken cognizance of by the Commission. And since, at the very momenof Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was alreadand indubitably a citizen, having taken his oath of allegiance earlier in thafternoon of the same day, then he should have been the candidate proclaimeas he unquestionably garnered the highest number of votes in the immediatelpreceding elections and such oath had already cured his previous "judiciallydeclared" alienage. Hence, at such time, he was no longer ineligible.

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

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

According to Tolentino,curative statutes are those which undertake to cure errorand irregularities, thereby validating judicial or administrative proceedings, acts opublic officers, or private deeds and contracts which otherwise would noproduce their intended consequences by reason of some statutory disability ofailure to comply with some technical requirement. They operate on conditionalready existing, and are necessarily retroactive in operation.

Agpalo,on the other hand, says that curative statutes are "healing acts . . . curindefects and adding to the means of enforcing existing obligations . . . (and) arintended to supply defects, abridge superfluities in existing laws, and curb certaevils. . . . By their very nature, curative statutes are retroactive . . . (and) reacback to past events to correct errors or irregularities and to render valid aneffective attempted acts which would be otherwise ineffective for the purpose thparties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating tremedies or modes of procedure, which do not create new or take away vesterights, but only operate in furtherance of the remedy or confirmation of sucrights, ordinarily do not come within the legal meaning of a retrospective law, nowithin the general rule against the retrospective operation of statutes.

A reading of P.D. 725 immediately shows that it creates a new right, and alsprovides for a new remedy, thereby filling certain voids in our laws.

In light of the foregoing, and prescinding from the wording of the preamble, it unarguable that the legislative intent was precisely to give the statute retroactivoperation. "(A) retrospective operation is given to a statute or amendment wherthe intent that it should so operate clearly appears from a consideration of the aas a whole, or from the terms thereof." It is obvious to the Court that the statutwas meant to "reach back" to those persons, events and transactions nootherwise covered by prevailing law and jurisprudence. And inasmuch as it habeen held that citizenship is a political and civil right equally as important as thfreedom of speech, liberty of abode, the right against unreasonable searches anseizures and other guarantees enshrined in the Bill of Rights, therefore thlegislative intent to give retrospective operation to P.D. 725 must be given thfullest effect possible. "(I)t has been said that a remedial statute must be soconstrued as to make it effect the evident purpose for which it was enacted, sothat ifthe reason of the statute extends to past transactions, as well as to thosein the future, then it will be so applied although the statute does not in terms sdirect, unless to do so would impair some vested right or violate somconstitutional guaranty." This is all the more true of P.D. 725, which did no

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specify any restrictions on or delimit or qualify the right of repatriation grantedtherein.

At this point, a valid question may be raised: How can the retroactivity of P.D.725 benefit Frivaldo considering that said law was enacted on June 5, 1975,while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, andapplied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo becamean American citizen, nevertheless, it is not only the law itself (P.D. 725) which isto be given retroactive effect, but even the repatriation granted under said law toFrivaldo on June 30, 1995 is to be deemed to have retroacted to the date of hisapplication therefor, August 17, 1994. The reason for this is simply that if, as inthis case, it was the intent of the legislative authority that the law should apply topastevents -- i.e., situations and transactions existing even before the law came

into being-- in order to benefit the greatest number of former Filipinos possiblethereby enabling them to enjoy and exercise the constitutionally guaranteed rightof citizenship, and such legislative intention is to be given the fullest effect andexpression, then there is all the more reason to have the law apply in aretroactive or retrospective manner to situations, events and transactionssubsequent to the passage of such law. That is, the repatriation granted toFrivaldo on June 30, 1995 can and should be made to take effect as of date ofhis application. As earlier mentioned, there is nothing in the law that would barthis or would show a contrary intention on the part of the legislative authority; andthere is no showing that damage or prejudice to anyone, or anything unjust orinjurious would result from giving retroactivity to his repatriation. Neither has Leeshown that there will result the impairment of any contractual obligation,disturbance of any vested right or breach of some constitutional guaranty.

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

Based on the foregoing, any question regarding Frivaldo's status as a registeredvoter would also be deemed settled. Inasmuch as he is considered as havingbeen repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994,his previous registration as a voter is likewise deemed validated as of said date.

It is not disputed that on January 20, 1983 Frivaldo became an American. Wouldthe retroactivity of his repatriation not effectively give him dual citizenship, whichunder Sec. 40 of the Local Government Code would disqualify him "from runningfor any elective local position?" We answer this question in the negative, as thereis cogent reason to hold that Frivaldo was really STATELESS at the time he tooksaid oath of allegiance and even before that, when he ran for governor in 1988.In his Comment, Frivaldo wrote that he "had long renounced and had longabandoned his American citizenship -- long before May 8, 1995. At best, Frivaldowas stateless in the interim -- when he abandoned and renounced his UScitizenship but before he was repatriated to his Filipino citizenship."

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

By the laws of the United States, petitioner Frivaldo losthis American citizenship when he took his oath ofallegiance to the Philippine Government when he ran forGovernor in 1988, in 1992, and in 1995. Every certificateof candidacy contains an oath of allegiance to thePhilippine Government."

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

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldowas rendered in connection with the 1988 elections while that in G.R. No.104654 was in connection with the 1992 elections. That he was disqualified forsuch elections is final and can no longer be changed. In the words of therespondent Commission (Second Division) in its assailed Resolution:The recordsshow that the Honorable Supreme Court had decided that Frivaldo was not a

Filipino citizen and thus disqualified for the purpose of the 1988 and 1992elections. However, there is no record of any "final judgment" of thedisqualification of Frivaldo as a candidate for the May 8, 1995 elections. What theCommission said in its Order of June 21, 1995 (implemented on June 30, 1995),directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipinocitizen "having been declared by the Supreme Court in its Order dated March 25,1995, not a citizen of the Philippines." This declaration of the Supreme Court,however, was in connection with the 1992 elections.

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern

a person's future status with finality. This is because a person may subsequently

reacquire, or for that matter lose, his citizenship under any of the modes

recognized by law for the purpose. Hence, in Lee vs. Commissioner of

Immigration, we held:Everytime the citizenship of a person is material or

indispensable in a judicial or administrative case, whatever the corresponding

court or administrative authority decides therein as to such citizenship is

generally not considered res judicata, hence it has to be threshed out again an

again, as the occasion demands.

Refutation oMr. Justice Davide's Dissent

- that President Aquino's memorandum dated March 27, 1987 should be vieweas a suspension (not a repeal, as urged by Lee) of P.D. 725.

- He also contends that by allowing Frivaldo to register and to remain as registered voter, the Comelec and in effect this Court abetted a "mockery" of otwo previous judgments declaring him a non-citizen. We do not see such abettinor mockery.

-Quo Warranto is not the sole remedy to question the ineligibility of a candidateciting the Comelec's authority under Section 78 of the Omnibus Election Codallowing the denial of a certificate of candidacy on the ground of a false materiarepresentation therein as required by Section 74. Citing Loong, he then states hdisagreement with our holding that Section 78 is merely directory.

- He argues that such retroactivity "dilutes" our holding in the first Frivaldo caseBut the first (and even the second Frivaldo) decision did not directly involvrepatriation as a mode of acquiring citizenship. If we may repeat, there is nquestion that Frivaldo was not a Filipino for purposes of determining hqualifications in the 1988 and 1992 elections. That is settled. But his superveninrepatriation has changed his political status -- not in 1988 or 1992, but only in th1995 elections.

- that Frivaldo was stateless prior to his repatriation, saying that "informrenunciation or abandonment is not a ground to lose American citizenship".

- Mr. Justice Davide submits that Section 39 of the Local Government Codrefers to the qualifications ofelective local officials, i.e., candidates, and no

elected officials, and that the citizenship qualification [under par. (a) of thsection] must be possessed by candidates, not merely at the commencement the term, but by election day at the latest. We see it differently. Section 39, pa(a) thereof speaks of "elective local official" while par. (b) to (f) refer "candidates". If the qualifications under par. (a) were intended to apply t"candidates" and not elected officials, the legislature would have said so, insteaof differentiating par. (a) from the rest of the paragraphs. Secondly, if Congreshad meant that the citizenship qualification should be possessed at election daor prior thereto, it would have specifically stated such detail, the same way it diin pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.

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

Case dismissed.

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Marquez, Jr. Vs COMELEC

FACTS: Bienvenido Marquez, a defeated candidate filed this petition forcertioraripraying for the reversal of the resolution of the COMELEC w/c dismissed hispetition for quo warranto against the winning candidate, herein privaterespondent Eduardo Rodriguez, for being allegedly a fugitive from justice.

Marquez's contention:

1. that at the time Priv. Res filed his COC, a crminal charge againsthim was pending before Mun. Court of L.A. (Insurance fraud or grand theft ofpersonal prop)

2. that a warrant issued by said court for his arrest, it is claimed, hasyet to be served on private respondent on account of his alleged "flight" from that

country.

Before the 11th May 1992 elections, a petition for cancellation of RES's COC onthe ground of the candidate's disqualification under Section 40(e) of the LocalGovernment Code, was filed by petitioner with the COMELEC. On 08 May 1992,the COMELEC dismissed the petition.

Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08thMay 1992 resolution of COMELEC was dismissed without prejudice, however, tothe filing in due time of a possible post-election quo warranto proceeding againstprivate respondent.

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992.Pet instituted quo warranto proceedings against private respondent before theCOMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division)dismissed the petition. The COMELEC En Banc, on 02 December 1993, denieda reconsideration of the resolution.

ISSUE: WON priv res who, at the time of the filing of his certificate of candidacy(and to date), is said to be facing a criminal charge before a foreign court and

evading a warrant for his arrest comes within the term "fugitive from justice"contemplated by Section 40(e) of the Local Government Code and, therefore,disqualified from being a candidate for, and thereby ineligible from holding on to,an elective local office?

HELD:

Petitioner's position: Section 40(e) of Republic Act No. 7160, is rather clear, hesubmits, and it disqualifies "fugitive from justice" includes not only those who fleeafter conviction to avoid punishment but likewise those who, after being chargedflee to avoid prosecution.

Private respondent reminds us that the construction placed upon law by theofficials in charge of its enforcement deserves great and considerable weight.The Court certainly agrees; however, when there clearly is no obscurity andambiguity in an enabling law, it must merely be made to apply as it is so written.An administrative rule or regulation can neither expand nor constrict the law butmust remain congruent to it. The Court believes and thus holds,albeitwith somepersonal reservations of the ponente (expressed during the Court's en bancdeliberations), that Article 73 of the Rules and Regulations Implementing the

Local Government Code of 1991, to the extent that it confines the term "fugitivefrom justice" to refer only to a person (the fugitive) "who has been convicted byfinal judgment." is an inordinate and undue circumscription of the law.

Unfortunately, the COMELEC did not make any definite finding on whether ornot, in fact, private respondent is a "fugitive from justice" as such term must beinterpreted and applied in the light of the Court's opinion. The omission isunderstandable since the COMELEC dismissed outrightly the petition forquowarranto on the basis instead of Rule 73 of the Rules and Regulationspromulgated by the Oversight Committee. The Court itself, not being a trier offacts, is thus constrained to remand the case to the COMELEC for adetermination of this unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission on Elections areREVERSED and SET ASIDE, and the case is hereby REMANDED to theCommission which is DIRECTED to proceed and resolve the case with dispatchconformably with the foregoing opinion. No special pronouncement on costs.

SO ORDERED.

RODRIGUEZ VS COMELEC

FACTS: Petitioner Rodriguez and private respondent Marquez Jr. wereprotagonists for the gubernatorial post of Quezon Province in the May 1992elections. Rodriguez won and was proclaimed duly-elected governor.Marquezchallenged Rodriguez' victory via petition forquo warranto before the COMELEC(EPC No. 92-28). Marquez revealed that Rodriguez left the United States wherea charge, filed on November 12, 1985, is pending against the latter before theLos Angeles Municipal Court for fraudulent insurance claims, grand theft andattempted grand theft of personal property. Rodriguez is therefore a "fugitivefrom justice"which is a ground for his disqualification/ineligibility under Section40(e) of the Local Government Code (R.A. 7160). On Feb 2, 1993, COMELECdenied quo warranto petition and also denied reconsideration.

Marquez challenged the COMELEC. The crux of said petition iwhether Rodriguez, is a "fugitive from justice"as contemplated bSection 40 (e) of the Local Government Code. In "Marquez, Jr. vsCOMELEC"' promulgated on April 18, 1995, MARQUEZ Decisiondeclared that:

. . . , "fugitive from justice" includes not only those whflee after conviction to avoid punishment but likewisthose who, after being charged, flee to avoid prosecutionThis definition truly finds support from jurisprudence (. . .and it may be so conceded as expressing the general anordinary connotation of the term. Whether or noRodriguez is a "fugitive from justice"under the definitiothus given was not passed upon by the Court.

In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for thsame position of governor. This time, Marquez challenged Rodriguez' candidacvia petition for disqualification before the COMELEC, based principally on thsame allegation that Rodriguez is a "fugitive from justice." This petition fodisqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 wheRodriguez' petition for certiorari (112889) from where the April 18, 199MARQUEZ Decision sprung was still then pending before the Court.

On May 7, 1995 and after the promulgation of the MARQUEZ Decision, theCOMELEC promulgated a Consolidated Resolution (quo warranto case) and(disqualification case). The authenticated documents submitted by petition(Marquez) to show the pendency of a criminal complaint against the responden(Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and thfact that there is an outstanding warrant against him amply proves petitionercontention that the respondent is a fugitive from justice.

ROdriguez's contention:

- that he did not know of the filing of the same nor was he aware that he wabeing proceeded against criminally.

- that he cannot be deemed a fugitive from justice, because to be so, one musbe aware of the filing of the criminal complaint, and his disappearance in thplace where the long arm of the law, thru the warrant of arrest, may reach him predicated on a clear desire to avoid and evade the warrant.

COMELEC disqualified or ineligible from assuming and performing the funstionof a governor. Ordered to vacate office.At any rate, Rodriguez again emerge athe victorious candidate in the May 8, 1995 election for the position of governor.

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

The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-08and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gavrise to the filing of the instant petition forcertiorari(G.R. No. 120099) on May 161995.

On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamatioof Rodriguez, To Proclaim Marquez And To Cite The Provincial Board o

Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No95-089). COMELEC nullified rodgriguez's proclamation.

Rodriguez filed a motion to admit supplemental petition to include the aforesaCOMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 199Resolutions (Consolidated Resolution and Order to suspend Rodrigueproclamation, respectively).

On October 24, 1995, the Court directed COMELEC to designate aCommissioner or a ranking official of the COMELEC to RECEIVE ANDEVALUATE such legally admissible evidence as herein petitioner EduardRodriguez may be minded to present by way of refuting the evidence heretoforsubmitted by private respondent Bienvenido Marquez, Sr.,

On December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES anCOMMISSION'S EVALUATION" wherein the COMELEC, after calibrating thparties' evidence, declared that Rodriguez is NOT a "fugitive from justice"asdefined in the main opinion in the MARQUEZ Decision. The COMELEC opinethat intent to evade is a material element of the MARQUEZ Decision definitionSuch intent to evade is absent in Rodriguez' case because evidence ha

established that Rodriguez arrived in the Philippines (June 25, 1985) long beforthe criminal charge was instituted in the Los Angeles Court (November 121985).

Marquez decision: The main opinion's definition of "fugitive from justice" "include not only those who fleafter conviction to avoid punishment but also those whoafter being charged, flee to avoid prosecution."

But in the majority of the cases cited, the definition of thterm "fugitive from justice" contemplates other instancenot explicitly mentioned in the main opinion. Black's LaDictionary begins the definition of the term by referring ta "fugitive from justice" as: (A) person, who, havincommitted a crime, flees from jurisdiction of the couwhere crime was committed or departs from his usuaplace of abode and conceals himself within thdistrict. . . .

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King v. Noe, a "fugitive from justice" as:. . . a person who,having committed orbeen charged with a crime in one state, has left its jurisdiction and is found withinthe territory of another when it is sought to subject him to the criminal process ofthe former state. (our emphasis)

In Hughes v. Pflanz, a person who, having committed within a state a crime,when sought for, to be subjected to criminal process, is found within the territoryof another state.

Moreno's Philippine Law Dictionary, expression which refers to one havingcommitted, or being accused, of a crime in one jurisdiction and is absentfor anyreason from that jurisdiction.

From the above rulings, it can be gleaned that the objective facts sufficient toconstitute flight from justice are: (a) a person committed a "crime" or has been

charged for the commission thereof; and (b) thereafter, leaves the jurisdiction ofthe court where said crime was committed or his usual place of abode.

Filing of charges prior to flight is not always an antecedent requirement to labelone a "fugitive from justice". Mere commission of a "crime" without chargeshaving been filed for the same and flight subsequent thereto sufficiently meet thedefinition. Attention is directed at the use of the word "crime" which is notemployed to connote guilt or conviction for the commission thereof. JusticeDavide's separate opinion in G.R. No. 112889 elucidates that the disqualificationfor being a fugitive does not involve the issue of the presumption of innocence,the reason for disqualification being that a person "was not brought within thejurisdiction of the court because he had successfully evaded arrest; or if he wasbrought within the jurisdiction of the court and was tried and convicted, he hassuccessfully evaded service of sentence because he had jumped bail orescaped. The disqualification then is based on his flight from justice."

Other rulings of the US SC further amplify the view that intent and purpose fordeparture is inconsequential to the inquiry. The texts, which are persuasive in ourjurisdiction, are more unequivocal in their pronouncements. InKing v. US(144 F.2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court

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

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

The simple fact that they (person who have committed crime within a state) arenot within the state to answer its criminal process when required renders them, inlegal intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R.NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES INTHE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THEPHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE".

The instant petition dwells on that nagging issue of whether Rodriguez is a"fugitive from justice", the determination of which, as we have directed the

COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court'sOctober 24, 1995 Resolution), must conform to how such term has been definedby the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":

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

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

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrivalin the Philippines from the US on June 25, 1985, as per certifications issued bythe Bureau of Immigrations dated April 27 and June 26 of 1995,precededthefiling of the felony complaint in the Los Angeles Court on November 12, 1985 andof the issuance on even date of the arrest warrant by the same foreign court, byalmost five (5) months. It was clearly impossible for Rodriguez to have known

about such felony complaint and arrest warrant at the time he left the US, asthere was in fact no complaint and arrest warrant much less conviction to speakof yet at such time. What prosecution or punishment then was Rodriguezdeliberately running away from with his departure from the US? The veryessence of being a "fugitive from justice" under the MARQUEZ Decisiondefinition, is just nowhere to be found in the circumstances of Rodriguez.

Having established petitioner's lack of knowledge of the charges to be filedagainst him at the time he left the United States, it becomes immaterialunder such construction to determine the exact time when he was madeaware thereof. While the law, as interpreted by the Supreme Court, does notcountenance flight from justice in the instance that a person flees thejurisdiction of another state after charges against him or a warrant for hisarrest was issued or even in view of the imminent filing and issuance of thesame, petitioner's plight is altogether a different situation. When, in goodfaith, a person leaves the territory of a state not his own, homeward bound,and learns subsequently of charges filed against him while in the relativepeace and service of his own country, the fact that he does not subject

himself to the jurisdiction of the former state does not qualify him outright aa fugitive from justice.

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

To summarize, the term "fugitive from justice"as a ground for the

disqualification or ineligibility of a person seeking to run for anelective local petition under Section 40(e) of the Local GovernmenCode, should be understood according to the definition given in thMARQUEZ Decision, to wit:

A "fugitive from justice" includes not only those who fleafter conviction to avoid punishmentbut likewise thosewho, after being charged, flee to avoid prosecution.

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

Petition granted