Cases 1-8 and 1-7 Statues

8/22/2019 Cases 1-8 and 1-7 Statues

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LETICIA B. AGBAYANI, PEtitioner, - versus -COURT OF APPEALS, DEPARTMENT OFJUSTICE and LOIDA MARCELINA J.GENABE,Respondents.DECISIONREYES, J.:

On petition for review under Rule 45 of the 1997 Rules of Court is the Decision [1] dated March 27,2008 of the Court of Appeals (CA) dismissing the petition forcertiorariand the Resolution[2] dated July3, 2008 denying the motion for reconsideration thereof in CA-G.R. SP No. 99626. Petitioner LeticiaB. Agbayani (Agbayani) assails the resolution of the Department of Justice (DOJ) which directed the

withdrawal of her complaint for grave oral defamation filed against respondent Loida Marcelina J.Genabe (Genabe).

Antecedent Facts

Agbayani and Genabe were both employees of the Regional Trial Court (RTC), Branch 275 of LasPias City, working as Court Stenographer and Legal Researcher II, respectively. On December 29,2006, Agbayani filed a criminal complaint for grave oral defamation against Genabe before the Officeof the City Prosecutor of Las Pias City, docketed as I.S. No. 07-0013, for allegedly uttering againsther, in the presence of their fellow court employees and while she was going about her usual dutiesat work, the following statements, to wit:

ANG GALING MO LETY, SINABI MO NA TINAPOS MO YUNG MARVILLA CASE, ANG GALINGMO. FEELING LAWYER KA KASI, BAKIT DI KA MAGDUTY NA LANG, STENOGRAPHER KA
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MAGSTENO KA NA LANG, ANG GALING MO, FEELING LAWYER KA TALAGA. NAGBEBENTA KANG KASO, TIRADOR KA NG JUDGE. SIGE HIGH BLOOD DIN KA, MAMATAY KA SANA SA HIGHBLOOD MO.[3]

In a Resolution[4] rendered on February 12, 2007, the Office of the City Prosecutor of Las PiasCity[5]found probable cause for the filing of the Information for grave oral defamation against Genabe.

However, upon a petition for review filed by Genabe, the DOJ Undersecretary Ernesto L. Pineda(Pineda) found that:

After careful evaluation and consideration of the evidence on record, we find merit in the instantpetition.Contrary to the findings in the assailed resolution, we find that the subject utterances of respondentconstitute only slight oral defamation.

As alleged by the [petitioner] in paragraphs 2, 3 and 4 of her complaint-affidavit, respondent utteredthe remarks subject matter of the instant case in the heat of anger. This was also the tenor of the

sworn statements of the witnesses for complainant. The Supreme Court, in the case of Cruz vs.Court of Appeals, G.R. Nos. L-56224-26, November 25, 1982, x x x held that although abusiveremarks may ordinarily be considered as serious defamation, under the environmental circumstances
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of the case, there having been provocation on complainants part, and the utterances complained ofhaving been made in the heat of unrestrained anger and obfuscation, such utterances constitute onlythe crime of slight oral defamation.Notwithstanding the foregoing, we believe that the instant case should nonetheless be dismissed fornon-compliance with the provisions of Book III, Title I, Chapter 7 (Katarungang Pambarangay), ofRepublic Act No. 7160 (The Local Government Code of 1991). As shown by the records, the partiesherein are residents of Las Pias City. x x x

The complaint-affidavit, however, failed to show that the instant case was previously referred to thebarangay for conciliation in compliance with Sections 408 and 409, paragraph (d), of the LocalGovernment Code, which provides:Section 408. Subject Matter for Amicable Settlement; Exception Thereto. The lupon of eachbarangay shall have authority to bring together the parties actually residing in the same city ormunicipality for amicable settlement of all disputes except: xxx

Section 409. Venue. x x x (d) Those arising at the workplace where the contending parties areemployed or xxx shall be brought in the barangay where such workplace or institution is located.


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The records of the case likewise show that the instant case is not one of the exceptions enumeratedunder Section 408 of the Local Government Code. Hence, the dismissal of the instant petition isproper.It is well-noted that the Supreme Court held that where the case is covered by P.D. 1508(Katarungang Pambarangay Law), the compulsory process of arbitration required therein is a pre-condition for filing a complaint in court. Where the complaint (a) did not state that it is one of theexcepted cases, or (b) it did not allege prior availment of said conciliation process, or (c) did not have

a certification that no conciliation or settlement had been reached by the parties, the case should bedismissed x x x. While the foregoing doctrine is handed down in civil cases, it is submitted that the

same should apply to criminal cases covered by, but filed without complying with, the provisions ofP.D. 1508 x x x.[6]

Thus, in a Resolution [7]dated May 17, 2007, the DOJ disposed, to wit:WHEREFORE, premises considered, the assailed resolution is hereby REVERSED and SET

ASIDE. Accordingly, the City Prosecutor of Las Pias City is directed to move for the withdrawal of

the information for grave oral defamation filed against respondent Loida Marcelina J. Genabe, andreport the action taken thereon within ten (10) days from receipt hereof.
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SO ORDERED.[8]

The petitioner filed a motion for reconsideration, which was denied in a Resolution[9]dated June 25,2007.Consequently, Agbayani filed a petition forcertiorariwith the CA alleging that the DOJ committed

grave abuse of discretion in setting aside the Resolution dated February 12, 2007 of the CityProsecutor of Las Pias City in I.S. Case No. 07-0013. She averred that the respondents petition forreview filed with the DOJ did not comply with Sections 5 and 6 of DOJ Circular No. 70, or the 2000

National Prosecution Service (NPS) Rules on Appeal, and maintained that her evidence supported afinding of probable cause for grave oral defamation against respondent Genabe.On March 27, 2008, the CA dismissed the petition after finding no grave abuse of discretion on thepart of the DOJ. Citing Punzalan v. Dela Pea,[10]the CA statedthat for grave abuse of discretion toexist, the complained act must constitute a capricious and whimsical exercise of judgment as it isequivalent to lack of jurisdiction, or when the power is exercised in an arbitrary or despotic manner byreason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion

of positive duty enjoined or to act at all in contemplation of law. It is not sufficient that a tribunal, inthe exercise of its power, abused its discretion; such abuse must be grave.
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On motion for reconsideration by the petitioner, the CA denied the same in its Resolution [11] dated July3, 2008. Hence, the instant petition.

Assignment of ErrorsMaintaining her stance, Agbayani raised the following, to wit:

I. RESPONDENTCOURT GRAVELY ERRED IN HOLDING THAT THE RESPONDENT DOJ DIDNOT ABUSE ITS DISCRETION WHEN THE LATTER REVERSED AND SET ASIDE THERESOLUTION OF THE CITY PROSECUTOR OF LAS PIAS CITY.II. RESPONDENT COURT GRAVELY ERRED IN AFFIRMING RESPONDENT DOJ'S FINDINGTHAT WHAT PRIVATE RESPONDENT COMMITTED WAS ONLY SLIGHT ORAL DEFAMATION.III. RESPONDENT COURT GRAVELY ERRED IN AFFIRMING RESPONDENT DOJ'S DISMISSAL

OF THE COMPLAINT DUE TO NON-COMPLIANCE WITH THE PROVISIONS OF THE LOCALGOVERNMENT CODE OF 1991.
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IV. RESPONDENT COURT GRAVELY ERRED WHEN IT HELD THAT THE REQUIREMENTSUNDER DOJ CIRCULAR NO. 70 (2000 NPS Rule on Appeal) ARE NOT MANDATORY.[12]

Ruling and DiscussionsThe petition is bereft of merit.

We shall first tackle Agbayani's arguments on the first two issues raised in the instant petition.

1. Petitioner Agbayani alleged that Undersecretary Pineda unfairly heeded only to the argumentsinterposed by respondent Genabe in her comment; and the CA, in turn, took his findings andreasoning as gospel truth. Agbayanis comment was completely disregarded and suppressed in therecords of the DOJ. Agbayani discovered this when she went to the DOJ to examine the records, assoon as she received a copy of the DOJ Resolution of her motion for reconsideration.2. Further, petitioner Agbayani maintained that respondent Genabes Petition for Review[13] shouldhave been dismissed outright, since it failed to state the name and address of the petitioner, nor did it

show proof of service to her, pursuant to Sections 5 and 6 of DOJ Circular No. 70. Also, thepetition was notaccompanied with the required attachments, i.e. certified copies of the complaint,affidavits of witnesses, petitioner's reply to respondent's counter-affidavit, and documentary
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evidences of petitioner. Thus, a grave irregularity was committed by the DOJ in allowing thesurreptitious insertion of these and many other documents in the records of the case, after the petitionhad been filed.In particular, petitioner Agbayani alleged that when the petition was filed on March 22, 2007, only five(5) documents were attached thereto, namely: (a) the Resolution of the City Prosecutor; (b) therespondent's Counter-affidavit; (c) Letter of the staff dated January 2, 2005; (d) her Answer; and (e)the Information filed against respondent Genabe with the Office of the City Prosecutor of Las Pias

City. However, at the time the Resolution of the DOJ was issued, a total of forty-one (41)documents[14] formed part of the records of the petition. Besides, respondent Genabe's Motion toDefer Arraignment (Document No. 40) and the court order relative to the granting of the same

(Document No. 41) were both dated March 23, 2007, or a day after the petition was filed. Agbayaniasserted that these thirty-six (36) documents were surreptitiously and illegally attached to the recordsof the case, an act constituting extrinsic fraud and grave misconduct.[15]At the very least, the DOJshould have required respondent Genabe to formalize the insertion of the said documents.Petitioner Agbayani reiterated that her version of the incident was corroborated by several witnesses(officemates of Agbayani and Genabe), while that of Genabe was not. And since the crime committedby respondent Genabe consisted of her exact utterances, the DOJ erred in downgrading the same to

slight oral defamation, completely disregarding the finding by the Investigating Prosecutor of probablecause for the greater offense of grave oral defamation. She denied that she gave provocation to


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respondent Genabe, insisting that the latter committed the offense with malice aforethought and notin the heat of anger.We find no merit in the above arguments.It is well to be reminded, first of all, that the rules of procedure should be viewed as mere instrumentsdesigned to facilitate the attainment of justice. They are not to be applied with severity and rigiditywhen such application would clearly defeat the very rationale for their conception and

existence. Even the Rules of Court reflects this principle.

[16]

Anent the charge of non-compliance with the rules on appeal, Sections 5 and 6 of the aforesaid DOJCircular provide:SECTION 5. Contents of petition. - The petition shall contain or state: (a) the names and addresses ofthe parties; (b) the Investigation Slip number (I.S. No.) and criminal case number, if any, and title ofthe case, including the offense charged in the complaint; (c) the venue of the preliminaryinvestigation; (d) the specific material dates showing that it was filed on time; (e) a clear and concisestatement of the facts, the assignment of errors, and the reasons or arguments relied upon for the

allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse party and theProsecution Office concerned.
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The petition shall be accompanied by legible duplicate original or certified true copy of the resolutionappealed from together with legible true copies of the complaint, affidavits/sworn statements andother evidence submitted by the parties during the preliminary investigation/ reinvestigation.If an information has been filed in court pursuant to the appealed resolution, a copy of the motion todefer proceedings filed in court must also accompany the petition.

The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the

petition. The party taking the appeal shall be referred to in the petition as either "Complainant-Appellant" or "Respondent-Appellant."

SECTION 6. Effect of failure to comply with the requirements. The failure of petitioner to complyWITH ANY of the foregoing requirements shallconstitute sufficient ground for the dismissal of thepetition.

Contrary to petitioner Agbayani's claim, there was substantial compliance with the rules. RespondentGenabe actually mentioned on page 2 of her petition for review to the DOJ the name of the petitioneras the private complainant, as well as indicated the latters address on the last page thereof as RTC

Branch 275, Las Pias City. The CA also noted that there was proper service of the petition asrequired by the rules since the petitioner was able to file her comment thereon. A copy thereof,attached as Annex L in the instant petition, bears a mark that the comment was duly received by the


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Prosecution Staff, Docket Section of the DOJ. Moreover, a computer verification requested by thepetitioner showed that the prosecutor assigned to the case had received a copy of the petitionerscomment.[17]

As to the charge of extrinsic fraud, which consists of the alleged suppression of Agbayani's Commentand the unauthorized insertion of documents in the records of the case with the DOJ, we agree withthe CA that this is a serious charge, especially if made against the Undersecretary of Justice; and inorder for it to prosper, it must be supported by clear and convincing evidence. However, petitioner

Agbayani's only proof is her bare claim that she personally checked the records and found that herComment was missing and 36 new documents had been inserted. This matter was readily brought to

the attention of Undersecretary Pineda by petitioner Agbayani in her motion for reconsideration, whohowever must surely have found such contention without merit, and thus denied the motion.[18]

Section 5 of the 2000 NPS Rules on Appeal also provides that the petition for review must beaccompanied by a legible duplicate original or certified true copy of the resolution appealed from,together with legible true copies of the complaint, affidavits or sworn statements and other evidencesubmitted by the parties during the preliminary investigation or reinvestigation. Petitioner Agbayanidoes not claim that she was never furnished, during the preliminary investigation, with copies of the

alleged inserted documents, or that any of these documents were fabricated. In fact, at least seven(7) of these documents were copies of her own submissions to the investigating prosecutor.[19]Presumably, the DOJ required respondent Genabe to submit additional documents produced at


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the preliminary investigation, along with Document Nos. 40 and 41, for a fuller consideration of herpetition for review.

As for Document Nos. 40 and 41, which were dated a day after the filing of the petition, Section 5 ofthe 2000 NPS Rules on Appeal provides that if an Information has been filed in court pursuant to theappealed resolution, a copy of the Motion to Defer Proceedings must also accompany the petition.Section 3 of the above Rules states that an appeal to the DOJ must be taken within fifteen (15) daysfrom receipt of the resolution or of the denial of the motion for reconsideration. While it may be

presumed that the motion to defer arraignment accompanying the petition should also be filed withinthe appeal period, respondent Genabe can not actually be faulted if the resolution thereof was madeafter the lapse of the period to appeal.

In Guy vs. AsiaUnited Bank,[20]a motion for reconsideration from the resolution of the Secretary ofJustice, which was filed four (4) days beyond the non-extendible period of ten (10) days, wasallowed under Section 13 of the 2000 NPS Rules on Appeal. The Supreme Court held that theauthority of the Secretary of Justice to review and order the withdrawal of an Information in instanceswhere he finds the absence of a prima facie case is not time-barred, albeit subject to the approval ofthe court, if its jurisdiction over the accused has meanwhile attached.[21] We further explained:

[I]t is not prudent or even permissible for a court to compel the Secretary of Justice or the fiscal, asthe case may be, to prosecute a proceeding originally initiated by him on an information, if he findsthat the evidence relied upon by him is insufficient for conviction. Now, then, if the Secretary of


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Justice possesses sufficient latitude of discretion in his determination of what constitutes probablecause and can legally order a reinvestigation even in those extreme instances where an informationhas already been filed in court, is it not just logical and valid to assume that he can take cognizanceof and competently act on a motion for reconsideration, belatedly filed it might have been, dealingwith probable cause? And is it not a grievous error on the part of the CA if it virtually orders the filingof an information, as here, despite a categorical statement from the Secretary of Justice about thelack of evidence to proceed with the prosecution of the petitioner? The answer to both posers shouldbe in the affirmative. As we said inSantos v. Go:[C]ourts cannot interfere with the discretion of the public prosecutor in evaluating the offensecharged. He may dismiss the complaint forthwith, if he finds the charge insufficient in form or

substance, or without any ground. Or, he may proceed with the investigation if the complaint in hisview is sufficient and in proper form. The decision whether to dismiss a complaint or not, isdependent upon the sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary ofJustice. Findings of the Secretary of Justice are not subject to review unless made with grave abuseof discretion.x x x

[T]o strike down the April 20, 2006 DOJ Secretary's Resolution as absolutely void and without effectwhatsoever, as the assailed CA decision did, for having been issued after the Secretary hadsupposedly lost jurisdiction over the motion for reconsideration subject of the resolution may be


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reading into the aforequoted provision a sense not intended. For, the irresistible thrust of the assailedCA decision is that the DOJ Secretary is peremptorily barred from taking a second hard look at hisdecision and, in appropriate cases, reverse or modify the same unless and until a motion forreconsideration is timely interposed and pursued. The Court cannot accord cogency to the postureassumed by the CA under the premises which, needless to stress, would deny the DOJ the authorityto motu proprioundertake a review of his own decision with the end in view of protecting, in line withhis oath of office, innocent persons from groundless, false or malicious prosecution. As the Courtpointed out in Torres, Jr. v. Aguinaldo, the Secretary of Justice would be committing a seriousdereliction of duty if he orders or sanctions the filing of an information based upon a complaint wherehe is not convinced that the evidence warrants the filing of the action in court.[22] (Citations omittedand underscoring supplied)

The Court further stated in Guythat when the DOJ Secretary took cognizance of the petitioner'smotion for reconsideration, he effectively excepted such motion from the operation of theaforequoted Section 13 of DOJ Circular No. 70, s. 2000. This show of liberality is, to us, within thecompetence of the DOJ Secretary to make. The Court is not inclined to disturb the same absentcompelling proof, that he acted out of whim and that petitioner was out to delay the proceedings tothe prejudice of respondent in filing the motion for reconsideration.[23]

The case ofFirst Women's Credit Corporation v. Perez,[24] succinctly summarizes the general rulesrelative to criminal prosecution: that criminal prosecution may not be restrained or stayed by


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injunction, preliminary or final, albeit in extreme cases, exceptional circumstances have beenrecognized; that courts follow the policy of non-interference in the conduct of preliminaryinvestigations by the DOJ, and of leaving to the investigating prosecutor sufficient latitude ofdiscretion in the determination of what constitutes sufficient evidence as will establish probable causefor the filing of an information against a supposed offender; and, that the court's duty in anappropriate case is confined to a determination of whether the assailed executive or judicialdetermination of probable cause was done without or in excess of jurisdiction or with grave abuse ofdiscretion amounting to want of jurisdiction.But while prosecutors are given sufficient latitude of discretion in the determination of probable cause,their findings are still subject to review by the Secretary of Justice. Surely, this power of the Secretary

of Justice to review includes the discretion to accept additional evidence from the investigatingprosecutor or from herein respondent Genabe, evidence which nonetheless appears to have alreadybeen submitted to the investigating prosecutor but inadvertently omitted by her when she filed herpetition.3. Coming now to the DOJ's finding that the complaint fails to state a cause of action, the CA heldthat the DOJ committed no grave abuse of discretion in causing the dismissal thereof on the groundof non-compliance with the provisions of the Local Government Code of 1991, on the KatarungangPambarangayconciliation procedure.


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Undeniably, both petitioner Agbayani and respondent Genabe are residents of Las Pias City andboth work at the RTC, and the incident which is the subject matter of the case happened in theirworkplace.[25]Agbayanis complaint should have undergone the mandatory barangayconciliation forpossible amicable settlement with respondent Genabe, pursuant to Sections 408 and 409 of Republic

Act No. 7160 or the Local Government Code of 1991 which provide:Sec. 408. Subject Matter for Amicable Settlement; Exception thereto. The lupon ofeach barangayshall have authority to bring together the parties actually residing in the same city ormunicipality for amicable settlement of all disputes, except: x x x

Sec. 409. Venue. x x x (d) Those arising at the workplace where the contending parties areemployed or x x x shall be brought in the barangaywhere such workplace or institution is located.

Administrative Circular No. 14-93,[26]issued by the Supreme Court on July 15, 1993 states that:x x xI. All disputes are subject to Barangay conciliation pursuant to the Revised KatarungangPambarangay Law [formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter VII,Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local Government
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Code of 1991], and prior recourse thereto is a pre-condition before filing a complaint in court or anygovernment offices, exceptin the following disputes:

[1] Where one party is the government, or any subdivision or instrumentality thereof;[2] Where one party is a public officer or employee and the dispute relates to the performance of hisofficial functions;[3] Where the dispute involves real properties located in different cities and municipalities, unless theparties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

[4] Any complaint by or against corporations, partnerships or juridical entities, since only individualsshall be parties to Barangay conciliation proceedings either as complainants or respondents [Sec. 1,Rule VI, Katarungang Pambarangay Rules];[5] Disputes involving parties who actually reside in barangays of different cities or municipalities,except where such barangay units adjoin each other and the parties thereto agree to submit theirdifferences to amicable settlement by an appropriate Lupon;[6] Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one [1] yearor a fine of over five thousand pesos ([P]5,000.00);


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[7] Offenses where there is no private offended party;[8] Disputes where urgent legal action is necessary to prevent injustice from being committed orfurther continued, specifically the following:

[a] Criminal cases where accused is under police custody or detention [See Sec. 412(b)(1),Revised Katarungang Pambarangay Law];

[b] Petitions for habeas corpus by a person illegally deprived of his rightful custody overanother or a person illegally deprived of or on acting in his behalf;

[c] Actions coupled with provisional remedies such as preliminary injunction, attachment,

delivery of personal property and support during the pendency of the action; and

[d] Actions which may be barred by the Statute of Limitations.[9] Any class of disputes which the President may determine in the interest of justice or upon therecommendation of the Secretary of Justice;[10] Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs. 46 & 47,R. A. 6657];


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[11] Labor disputes or controversies arising from employer-employee relations [Montoya vs. Escayo,171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdictionover conciliation and mediation of disputes, grievances or problems to certain offices of theDepartment of Labor and Employment];[12] Actions to annul judgment upon a compromise which may be filed directly in court [See Sanchezvs. [Judge] Tupaz,158 SCRA 459].

x x x

The compulsory process of arbitration is a pre-condition for the filing of the complaint in court. Wherethe complaint (a) did not state that it is one of excepted cases, or (b) it did not allege prior availmentof said conciliation process, or (c) did not have a certification that no conciliation had been reached bythe parties, the case should be dismissed.[27]

Here, petitioner Agbayani failed to show that the instant case is not one of the exceptions enumeratedabove. Neither has she shown that the oral defamation caused on her was so grave as to merit apenalty of more than one year. Oral defamation under Article 358 of the Revised Penal Code, asamended, is penalized as follows:
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Article 358. Slander. Oral defamation shall be punished by arresto mayorin its maximum periodtoprision correccionalin its minimum period if it is of a serious and insulting nature; otherwise,the penalty shall be arresto menoror a fine not exceeding 200 pesos.

Apparently, the DOJ found probable cause only for slight oral defamation. As defined in Villanueva v.People,[28]oral defamation or slander is the speaking of base and defamatory words which tend toprejudice another in his reputation, office, trade, business or means of livelihood. It is grave slanderwhen it is of a serious and insulting nature. The gravity depends upon: (1) the expressions used; (2)the personal relations of the accused and the offended party; and (3) the special circumstances of thecase, the antecedents or relationship between the offended party and the offender, which may tend to

prove the intention of the offender at the time. In particular, it is a rule that uttering defamatorywords in the heat of anger, with some provocation on the part of the offended party constitutes only alight felony.[29]

We recall that in the morning of December 27, 2006 when the alleged utterances were made,Genabe was about to punch in her time in her card when she was informed that she had beensuspended for failing to meet her deadline in a case, and that it was Agbayani who informed thepresiding judge that she had missed her deadline when she left to attend a convention in Baguio City,leaving Agbayani to finish the task herself. According to Undersecretary Pineda, the confluence ofthese circumstances was the immediate cause of respondent Genabe's emotional and psychologicaldistress. We rule that his determination that the defamation was uttered while the respondent was in


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extreme excitement or in a state of passion and obfuscation, rendering her offense oflesser gravity than if it had been made with cold and calculating deliberation, is beyond the ambit ofour review.[30] The CA concurred that the complained utterances constituted only slight oraldefamation, having been said in the heat of anger and with perceived provocation from

Agbayani. Respondent Genabe was of a highly volatile personality prone to throw fits (sumpongs),who thus shared a hostile working environment with her co-employees, particularly with her superiors,

Agbayani and Hon. Bonifacio Sanz Maceda, the Presiding Judge of Branch 275, whom she claimedhad committed against her grievous acts that outrage moral and social conduct. That there hadbeen a long-standing animosity between Agbayani and Genabe is not denied.

4. Lastly, petitioner Agbayani insists that the DOJ should have dismissed respondent Genabe'spetition for review outright pursuant to Sections 5 and 6 of DOJ Circular No. 70. It is true that thegeneral rule in statutory construction is that the words shall, must, ought, or should are words ofmandatory character in common parlance and in their in ordinary signification,[31] yet, it is also well-recognized in law and equity as a not absolute and inflexible criterion.[32] Moreover, it is well to bereminded that DOJ Circular No. 70 is a mere tool designed to facilitate, not obstruct, the attainment of

justice through appeals taken with the National Prosecution Service. Thus, technical rules ofprocedure like those under Sections 5 and 6 thereof should be interpreted in such a way to promote,not frustrate, justice.
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Besides, Sections 7 and 10 of DOJ Circular No. 70 clearly give the Secretary of Justice, or theUndersecretary in his place, wide latitude of discretion whether or not to dismiss a petition. Section 6of DOJ Circular No. 70, invoked by petitioner Agbayani, is clearly encompassed within this authority,as shown by a cursory reading of Sections 7 and 10, to wit:SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he

finds the same to be patently without merit or manifestly intended for delay, or when the issues raisedtherein are too unsubstantial to require consideration.

SECTION 12. Disposition of the appeal. The Secretary may reverse, affirm or modify the appealedresolution. He may, motu proprio or upon motion, dismiss the petition for review on any of thefollowing grounds:

That the petition was filed beyond the period prescribed in Section 3 hereof; That the procedure or any of the requirements herein provided has not been complied with; That there is no showing of any reversible error; That the appealed resolution is interlocutory in nature, except when it suspends theproceedings based on the alleged existence of a prejudicial question;

That the accused had already been arraigned when the appeal was taken; That the offense has already prescribed; and


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That other legal or factual grounds exist to warrant a dismissal.

We reiterate what we have stated in Yao v. Court of Appeals [33] that:In the interest of substantial justice, procedural rules of the most mandatory character in terms ofcompliance, may be relaxed. In other words, if strict adherence to the letter of the law would result inabsurdity and manifest injustice, or where the merit of a party's cause is apparent and outweighsconsideration of non-compliance with certain formal requirements, procedural rules should definitelybe liberally construed. A party-litigant is to be given the fullest opportunity to establish the merits of

his complaint or defense rather than for him to lose life, liberty, honor or property on meretechnicalities.[34](Citations omitted)

All told, we find that the CA did not commit reversible error in upholding the Resolution dated May 17,2007 of the DOJ as we, likewise, find the same to be in accordance with law and jurisprudence.WHEREFORE, premises considered, the petition for review is hereby DENIED. Accordingly, theDecision dated March 27, 2008 and the Resolution dated July 3, 2008 of the Court of Appeals in CA-G.R. SP No. 99626 are AFFIRMEDin toto.
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SO ORDERED.

April 27, 1954G.R. No. L-5387In the matter of the Adoption of the minors MARIA LUALHATI MAGPAYO and AMADAMAGPAYO. CLYDE E. MCGEE, petitioner-appellee,vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellant.Quijano, Alidio and Azores for appellee.

Assistant Solicitor General Guillermo E. Torres and Solicitor Estrella Abad Santos for appellant.Montemayor, J.:

MARIA LUALHATI MAGPAYO. CLYDE E MCGEE vs. REPUBLIC OF THE PHILIPPINESRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-5387 &nbsp &nbsp &nbsp &nbsp &nbsp &nbsp April 27, 1954In the matter of the Adoption of the minors MARIA LUALHATI MAGPAYO and AMADA MAGPAYO.CLYDE E. MCGEE, petitioner-appellee,vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellant.Quijano, Alidio and Azores for appellee.

Assistant Solicitor General Guillermo E. Torres and Solicitor Estrella Abad Santos for appellant.MONTEMAYOR, J.:


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Appellee Clyde E. McGee, an American citizen is married to Leonardo S. Crisostomo by whom hehas one child. The minors Maria and Amada, both surnamed Magpayo are Leonardas children byher first husband Ernesto Magpayo who was killed by the Japanese during the occupation. McGeefiled a petition in the Court of First Instance of Manila to adopt his two minor step-children Maria and

Amada.At the hearing, the Government filed its opposition to the petition on the ground that petitioner has alegitimate child and consequently, is disqualified to adopt under article 335, paragraph 1, of the newCivil Code which provides:

ART. 335. The following cannot adopt:(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children bylegal fiction;

ART. 338. The following may be adopted:x x x x x x x x x(3) A step-child, by the step-father or step-mother.The Government is appealing from that decision. Only recently (December 21, 1953), and during thependency of the present appeal, we have had occasion to decide a similar case wherein the samequestion was involved,1 namely, whether a husband having a legitimate child may adopt a step-child.

Applying the provisions of article 335, we held that it cannot be done for the reason that althougharticle 338 of the new Civil Code permits the adoption of a step-child by the step-father or the step-mother, nevertheless, because of the negative provisions of article 335, said permission is confined tothose step-fathers and step-mothers who have no children of their own.


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With the doctrine laid down in the Ball vs. Republic case, we could stop right here and sustain theappeal of the Government in the present case. However, it may not be unprofitable to furtherelaborate on the relation between the two articles 335 and 338, new Civil Code. The strongestargument of the trial court and of the appellee in support of the decision granting the adoption is thatto hold that a step-father having a legitimate child may not adopt a step-child would be to renderarticle 338, paragraph 3, meaningless and a surplusage inasmuch as without said article 338, ahusband without a legitimate child may adopt a step-child anyway; or worse, article 338 contradictsarticle 335. At first blush, that is a formidable argument because the Legislature in enacting a law issupposed and presumed not to insert any section or provision which is unnecessary and a mere

surplusage; that all provisions contained in a law should be given effect, and that contradictions are tobe avoided. Futhermore, it is contended by appellee that article 335 prohibiting adoption by a parent

who already has a child of his own should not be considered exclusively but rather in relation witharticle 338 so as to regard the latter as an exception to an exception. To meet and dispose of thisargument we have to go into the philosophy of adoption.The purpose of adoption is to establish a relationship of paternity and filiation where none existedbefore. Where therefore the relationship of parent and child already exists whether by blood or byaffinity as in the case of illegitimate and step-children, it would be unnecessary and superfluous toestablish and superimpose another relationship of parent and child through adoption. Consequently,an express authorization of law like article 338 is necessary, if not to render it proper and legal, atleast, to remove any and all doubt on the subject-matter. Under this view, article 338 may not be

regarded as a surplusage. That may have been the reason why in the old Code of Civil Procedure,particularly its provisions regarding adoption, authority to adopt a step-child by a step-father was


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provided in section 766 notwithstanding the general authorization in section 765 extended to anyinhabitant of the Philippines to adopt a minor child. The same argument of surplusage could plausiblyhave been advanced as regards section 766, that is to say, section 766 was unnecessary andsuperfluous because without it a step-father could adopt a minor step-child anyway. However, theinsertion of section 766 was not entirely without reason. The Code of Civil Procedure was of commonlaw origin. It seems to be an established principle in American jurisprudence that a person may notadopt his own relative, the reason being that it is unnecessary to establish a relationship where suchalready exists (the same philosophy underlying our codal provisions on adoption). So, some stateshave special laws authorizing the adoption of relatives such as a grandfather adopting a grandchild

and a father adopting his illegitimate or natural child.

Another possible reason for the insertion of section 766 in the Code of Civil Procedure and article338, paragraph 3, in the new Civil Code, authorizing the adoption of a step-child by the step-father orstep-mother is that without said express legal sanction, there might be some doubt as to the proprietyand advisability of said adoption due to the possibility, if not probability, of pressure brought to bearupon the adopting step-father or mother by the legitimate and natural parent.One additional reason for holding that article 338 of the new Civil Code should be subordinated andmade subject to the provisions of article 335 so as to limit the permission to adopt granted in article338, to parents who have no children of their own, is that the terms of article 335 are phrased in anegative manner the following cannot be adopted, while the phraseology of article 338 is only

affirmative the following may be adopted. Under the rule of statutory construction, negative wordsand phrases are to be regarded as mandatory while those in the affirmative are merely directory.


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. . . negative (prohibitory and exclusive words or terms are indicative of the legislative intent that thestatute is to be mandatory, . . . (Crawford, Statutory Construction, sec. 263, p. 523.)Ordinarily the word may is directory, . . . (Crawford, op. cit., sec. 262, p. 519.)Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there isbut one way to obey the command thou shalt not, and that is to completely refrain from doing theforbidden act. And this is so, even though the statute provides no penalty for disobedience.(Crawford, op. cit., sec. 263, p. 523.)The principal reason behind article 335, paragraph 1 denying adoption to those who already havechildren is that adoption would not only create conflicts within the family but it would also materially

affect or diminish the successional rights of the child already had. This objection may not appear asformidable and real when the child had by the adopting parent is by the very spouse whose child is to

be adopted, because in that case, the legitimate child and the adopted one would be half-brothers orhalf-sisters, would not be total strangers to each other, and the blood relationship though half maysoften and absorb the loss of successional rights and the possible diminution of the attention andaffection previously enjoyed. But as not infrequently happens, the step-father or step-mother adoptinga child of his or her second wife or husband already may have a child of his or her own by a previousmarriage, in which case, said child and the adopted one would be complete strangers to each other,with no family ties whatsoever to bind them, in which event, there would be nothing to soften andreconcile the objection and resentment, natural to the legitimate child.In conclusion, we hold that pursuant to the provisions of article 335, paragraph 1, a step-father who

already has a child may not adopt a step-child regardless of the provisions of article 338, paragraph 3of the same Code, the latter provisions being confined and applicable to those step-fathers and step-


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mothers who have no children of their own. The decision appealed from is hereby reversed, and thepetition for adoption is denied. No pronouncement as to costs.Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.Footnotes1 In re application of Norman H. Ball to adopt the minor George William York, Jr., Norman H. Ball vs.Republic of the Philippines, supra, p. 106.

G.R. No. 79094 June 22, 1988

MANOLO P. FULE, petitioner,vs.THE HONORABLE COURT OF APPEALS, respondent.Balagtas P. Ilagan for petitioner.The Solicitor General for respondent.MELENCIO-HERRERA, J.:This is a Petition for Review on certiorariof the Decision of respondent Appellate Court, whichaffirmed the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner (the

accused-appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the basis


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of the Stipulation of Facts entered into between the prosecution and the defense during the pre-trialconference in the Trial Court. The facts stipulated upon read:a) That this Court has jurisdiction over the person and subject matter of this case;b) That the accused was an agent of the Towers Assurance Corporation on or before January 21,1981;c) That on January 21, 1981, the accused issued and made out check No. 26741, dated January 24,1981 in the sum of P2,541.05;d) That the said check was drawn in favor of the complaining witness, Roy Nadera;e) That the check was drawn in favor of the complaining witness in remittance of collection;

f) That the said check was presented for payment on January 24, 1981 but the same was dishonoredfor the reason that the said checking account was already closed;

g) That the accused Manolo Fule has been properly Identified as the accused party in this case.At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of Exhibits"A," "B" and "C." At the subsequent hearing on September 17, 1985, petitioner-appellant waived theright to present evidence and, in lieu thereof, submitted a Memorandum confirming the Stipulation ofFacts. The Trial Court convicted petitioner-appellant.On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment ofconviction. 1

Hence, this recourse, with petitioner-appellant contending that:The Honorable Respondent Court of Appeals erred in the decision of the Regional Trial Court

convicting the petitioner of the offense charged, despite the cold fact that the basis of the conviction


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was based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which wasnot signed by the petitioner, nor by his counsel.Finding the petition meritorious, we resolved to give due course.The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable tothis case since the pre-trial was held on August 8, 1985, provides:SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered duringthe pre-trial conference shall be used in evidence against the accused unless reduced to writing andsigned by him and his counsel. (Rule 118) [Emphasis supplied]By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words

and phrases are to be regarded as mandatory while those in the affirmative are merely directory(McGee vs. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its

mandatory character and means that it is imperative, operating to impose a duty which may beenforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And more importantly,penal statutes whether substantive and remedial or procedural are, by consecrated rule, to be strictlyapplied against the government and liberally in favor of the accused (People vs. Terrado No. L-23625, November 25, 1983, 125 SCRA 648).The conclusion is inevitable, therefore, that the omission of the signature of the accused and hiscounsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible inevidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation ofFacts does not cure the defect because Rule 118 requires both the accused and his counsel to sign

the Stipulation of Facts. What the prosecution should have done, upon discovering that the accuseddid not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the


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elements of the crime, instead of relying solely on the supposed admission of the accused in theStipulation of Facts. Without said evidence independent of the admission, the guilt of the accusedcannot be deemed established beyond reasonable doubt.Consequently, under the circumstances obtaining in this case, the ends of justice require thatevidence be presented to determine the culpability of the accused. When a judgment has beenentered by consent of an attorney without special authority, it will sometimes be set aside orreopened (Natividad vs. Natividad, 51 Phil. 613 [1928]).WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is herebyordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of

Lucena City, for further reception of evidence.SO ORDERED.

Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur.Paras, J., took no part.Gutierrez, Jr., J., is on leave.G.R. No. 119976 September 18, 1995IMELDA ROMUALDEZ-MARCOS, petitioner,vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.KAPUNAN, J.:


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A constitutional provision should be construed as to give it effective operation and suppress themischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to theHouse of Representatives be "a registered voter in the district in which he shall be elected, and aresident thereof for a period of not less than one year immediately preceding the election." 2 Themischief which this provision reproduced verbatim from the 1973 Constitution seeks to preventis the possibility of a "stranger or newcomer unacquainted with the conditions and needs of acommunity 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 ofRepresentative 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 IMMEDIATELYPRECEDING THE ELECTION: __________ Years and seven Months.On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the FirstDistrict of Leyte and a candidate for the same position, filed a "Petition for Cancellation andDisqualification"5 with the Commission on Elections alleging that petitioner did not meet theconstitutional 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 ofRepresentatives 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


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On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing theentry "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 thatit 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'sHead Office in Intramuros, Manila on

March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filedwith 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 whichshe sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate ofCandidacy and that "she has always maintained Tacloban City as her domicile orresidence. 11 Impugning respondent's motive in filing the petition seeking her disqualification, shenoted that:When respondent (petitioner herein) announced that she was intending to register as a voter inTacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed herintended registration by writing a letter stating that "she is not a resident of said city but of BarangayOlot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her

six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the townof Tolosa from the First District to the Second District and pursued such a move up to the Supreme


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Court, his purpose being to remove respondent as petitioner's opponent in the congressional electionin the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation ofanother legislative district to remove the town of Tolosa out of the First District, to achieve hispurpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner nowfiled the instant petition for the same objective, as it is obvious that he is afraid to submit along withrespondent 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 2to 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 March31, 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 deadlinefor filing certificates of candidacy, and petitioner's compliance with the one year residencyrequirement, the Second Division held:Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) wasa result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendmentshould subsequently be allowed. She averred that she thought that what was asked was her "actualand physical" presence in Tolosa and not residence of origin or domicile in the First LegislativeDistrict, to which she could have responded "since childhood." In an accompanying affidavit, shestated 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 hermemorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has


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been a resident of the First Legislative District of Leyte since childhood, although she only became aresident of the Municipality of Tolosa for seven months. She asserts that she has always been aresident of Tacloban City, a component of the First District, before coming to the Municipality ofTolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announcedthat she would be registering in Tacloban City so that she can be a candidate for the District.However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not toallow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claimand instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, theCertificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite

aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did notcite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was askedwas her actual and physical presence in Tolosa is not easy to believe because there is none in thequestion that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaksclearly of "Residency in the CONSTITUENCYwhere I seek to be elected immediately preceding theelection." Thus, the explanation of respondent fails to be persuasive.From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, isdevoid of merit.To further buttress respondent's contention that an amendment may be made, she cited the case

ofAlialy 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,


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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 theinstant case, the amendment cannot be considered as a matter of form or an inconsequentialdeviation. The change in the number of years of residence in the place where respondent seeks to beelected is a substantial matter which determines her qualification as a candidacy, specially thoseintended to suppress, accurate material representation in the original certificate which adverselyaffects the filer. To admit the amended certificate is to condone the evils brought by the shifting mindsof 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 beforethis 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 Recordaccomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leytefor 6 months at the time of the said registration (Annex A, Petition). Said accuracy is furtherbuttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994,requesting for the cancellation of her registration in the Permanent List of Voters thereat so that shecan be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) differentdocuments show the respondent's consistent conviction that she has transferred her residence toOlot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of

August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore,

cannot be persuaded to believe in the respondent's contention that it was an error.xxx xxx xxx


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

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has notcomplied with the one year residency requirement of the Constitution.In election cases, the term "residence" has always been considered as synonymous with "domicile"which imports not only the intention to reside in a fixed place but also personal presence in-that place,coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence towhich when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto

Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). Inrespondent's case, when she returned to the Philippines in 1991, the residence she chose was not

Tacloban but San Juan, Metro Manila. Thus, heranimus revertendiis pointed to Metro Manila and notTacloban.This Division is aware that her claim that she has been a resident of the First District since childhoodis nothing more than to give her a color of qualification where she is otherwise constitutionallydisqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit.Except for the time that she studied and worked for some years after graduation in Tacloban City, shecontinuously lived in Manila. In 1959, after her husband was elected Senator, she lived and resided inSan Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manilawhere 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. Shecould not have served these positions if she had not been a resident of the City of Manila.


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

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. Sheregistered as a voter in different places and on several occasions declared that she was a resident of

Manila. Although she spent her school days in Tacloban, she is considered to have abandoned suchplace when she chose to stay and reside in other different places. In the case ofRomualdezvs. RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. Theremust concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and(3) intention to abandon the old domicile. In other words there must basically be animusmanendiwith 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 thatshe is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent herchildhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative ofsuch intention. Respondent's statements to the effect that she has always intended to return to


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Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice ofresidence. Respondent has not presented any evidence to show that her conduct, one year prior theelection, showed intention to reside in Tacloban. Worse, what was evident was that prior to herresidence in Tolosa, she had been a resident of Manila.It is evident from these circumstances that she was not a resident of the First District of Leyte "sincechildhood."To further support the assertion that she could have not been a resident of the First District of Leytefor more than one year, petitioner correctly pointed out that on January 28, 1995 respondentregistered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter

Registration Record that she resided in the municipality of Tolosa for a period of six months. This maybe 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 inTolosa leaves nothing but a convincing proof that she had been a resident of the district for sixmonths only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en bancdeniedpetitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualifiedto run for the position of Member of the House of Representatives for the First Legislative District ofLeyte. 17 The Resolution tersely stated:

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

granting the petition for disqualification. 18


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On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should theresults of the canvass show that she obtained the highest number of votes in the congressionalelections in the First District of Leyte. On the same day, however, the COMELEC reversed itself andissued a second Resolution directing that the proclamation of petitioner be suspended in the eventthat she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelmingwinner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 basedon the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner allegedthat 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 theSupplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of theFirst District of Leyte and the public respondent's Resolution suspending her proclamation, petitionercomes to this court for relief.Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues maybe classified into two general areas:I. The issue of Petitioner's qualificationsWhether or not petitioner was a resident, for election purposes, of the First District of Leyte for aperiod of one year at the time of the May 9, 1995 elections.II. The Jurisdictional Issue

a) Prior to the elections


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Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside theperiod mandated by the Omnibus Election Code for disqualification cases under Article 78 of the saidCode.b) After the ElectionsWhether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction overthe question of petitioner's qualifications after the May 8, 1995 elections.I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in theapplication 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 determininga candidate's qualifications for election to the House of Representatives as required by the 1987Constitution. As it were, residence, for the purpose of meeting the qualification for an electiveposition, 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 civilobligations, the domicile of natural persons is their place of habitual residence." In Ongvs. Republic20 this court took the concept of domicile to mean an individual's "permanent home", "aplace to which, whenever absent for business or for pleasure, one intends to return, and depends onfacts 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 animusmanendi, or the intention of returning there permanently.


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Residence, in its ordinary conception, implies the factual relationship of an individual to a certainplace. It is the physical presence of a person in a given area, community or country. The essentialdistinction between residence and domicile in law is that residence involves the intent to leave whenthe purpose for which the resident has taken up his abode ends. One may seek a place for purposessuch as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if hisintent is to leave as soon as his purpose is established it is residence.22 It is thus, quite perfectlynormal for an individual to have different residences in various places. However, a person can onlyhave a single domicile, unless, for various reasons, he successfully abandons his domicile in favor ofanother 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 ofabode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which,

when absent, one has the intention of returning. A man may have a residence in one place and adomicile in another. Residence is not domicile, but domicile is residence coupled with the intention toremain for an unlimited time. A man can have but one domicile for the same purpose at any time, buthe may have numerous places of residence. His place of residence is generally his place of domicile,but it is not by any means necessarily so since no length of residence without intention of remainingwill constitute domicile.For political purposes the concepts of residence and domicile are dictated by the peculiar criteria ofpolitical laws. As these concepts have evolved in our election law, what has clearly and unequivocallyemerged 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 whichimports not only intention to reside in a fixed place, but also personal presence in that place, coupled


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with conduct indicative of such intention." 25Larena vs. Teves 26 reiterated the same doctrine in acase involving the qualifications of the respondent therein to the post of Municipal President ofDumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence from residence to pursuestudies or practice a profession or registration as a voter other than in the place where one is electeddoes not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law thatin these and other election law cases, this Court has stated that the mere absence of an individualfrom his permanent residence without the intention to abandon it does not result in a loss or changeof 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 electionlaw, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, therewas an attempt to require residence in the place not less than one year immediately preceding theday of the elections. So my question is: What is the Committee's concept of residence of a candidatefor the legislature? Is it actual residence or is it the concept of domicile or constructive residence?Mr. Davide: Madame President, insofar as the regular members of the National Assembly areconcerned, the proposed section merely provides, among others, "and a resident thereof", that is, inthe district for a period of not less than one year preceding the day of the election. This was in effectlifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx


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Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo hasraised the same point that "resident" has been interpreted at times as a matter of intention rather thanactual residence.Mr. De los Reyes: Domicile.Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actualresidence rather than mere intention to reside?Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision inthe Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted bylaw. So, we have to stick to the original concept that it should be by domicile and not physical

residence.30

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

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied theresidency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significanceis the questioned entry in petitioner's Certificate of Candidacy stating her residence in the FirstLegislative 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 indetermining 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 deliberateattempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It


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would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in acertificate 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 leadingto her filing the questioned entry obviously resulted in the subsequent confusion which promptedpetitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period ofresidence in the First district, which was "since childhood" in the space provided. Thesecircumstances and events are amply detailed in the COMELEC's Second Division's questionedresolution, 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, privaterespondent 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 isTolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close lookat 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 seekselection thus:7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, LeytePOST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TOBE 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 insteadof petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her


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legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiringactual residence and the second requiring domicile coupled with the circumstances surroundingpetitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry forwhich she could be disqualified. This honest mistake should not, however, be allowed to negate thefact of residence in the First District if such fact were established by means more convincing than amere 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 ofLeyte, the Second Division of the COMELEC, in i ts assailed Resolution of April 24,1995 maintains

that "except for the time when (petitioner) studied and worked for some years after graduation inTacloban 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 fewdecades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided inSan Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election ofher husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of MetroManila. "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 haslived 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 topursue a profession, to study or to do other things of a temporary or semi-permanent nature does not


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constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been aresident of Tacloban City since childhood up to the time she filed her certificate of candidacy becauseshe became a resident of many places" flies in the face of settled jurisprudence in which this Courtcarefully made distinctions between (actual) residence and domicile for election law purposes.In Larena vs. Teves, 33supra, we stressed:[T]his court is of the opinion and so holds that a person who has his own house wherein he lives withhis family in a municipality without having ever had the intention of abandoning it, and without havinglived either alone or with his family in another municipality, has his residence in the formermunicipality, notwithstanding his having registered as an elector in the other municipality in question

and having been a candidate for various insular and provincial positions, stating every time that he isa resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, toimprove his lot, and that, of course includes study in other places, practice of his avocation, orengaging in business. When an election is to be held, the citizen who left his birthplace to improve hislot 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; sothere he registers himself as voter as he has the qualifications to be one and is not willing to give upor lose the opportunity to choose the officials who are to run the government especially in nationalelections. Despite such registration, the animus revertendito 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 placeother than his residence of origin has not been deemed sufficient to constitute abandonment or loss


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of such residence. It finds justification in the natural desire and longing of every person to return to hisplace of birth. This strong feeling of attachment to the place of one's birth must be overcome bypositive proof of abandonment for another.From the foregoing, it can be concluded that in its above-cited statements supporting its propositionthat petitioner was ineligible to run for the position of Representative of the First District of Leyte, theCOMELEC was obviously referring to petitioner's various places of (actual) residence, not herdomicile. In doing so, it not only ignored settled jurisprudence on residence in election law and thedeliberations 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'sdomicile, 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 inTacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to1949 when she graduated from high school. She pursued her college studies in St. Paul's College,now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, shetaught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with hercousin, 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 andregistered there as a voter. When her husband was elected Senator of the Republic in 1959, she andher husband lived to

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